Abortion an issue again

On a golden day last Tuesday, I walked along the main street of a small town at the end of Long Island. If you stretched a point, you could call it a seaport town because, even though it looks out on a great bay, the bay leads through a broad channel into the Atlantic Ocean and 150 years ago, this was a whaling town, one of the most famous.

In the summer time now, the slips of the marina are crowded with boats, from little outboards to small yachts but they're all gone now and the wharves are busy with the coming and going of the big fishing boats. They bring in the swordfish from the ocean and, from the thrashing waters between points of land, the bluefish. At dawn and at the last light of the day, you can see men in hip boots standing in the water casting out to the sand bars and, as often as not, bringing in 20-, 30-pound fighting striped bass.

For the rest, the town is what they call a retail centre and the people who don't earn their living on the potato and cauliflower farms hereabouts perform all the services – building and carpentering and groceries and electricity and timber and the like. They're a mixture of English and Polish strains. The English came in over 300 years ago from Suffolk, hence we live in Suffolk County, New York State. The Poles came in at the turn of this century and like most immigrants they looked for a landscape like that of their native land and the Poles looked and found sandy soil with cedars and scrub pine and locust trees, soil good for potatoes and all the vegetables.

Like farming country in most parts of the nation, this is Republican country and the other day an old man, giving a little advice to a young man about to set up a law practice, said, 'When you hang out your shingle, you'd better make it clear somehow that you're a Republican or precious little business will come your way.'

Well, Tuesday was voting day for local offices all around the United States, some governorships, elections for mayor, judges, town councillors, town clerks and so on. The list of candidates, even in our small town, looked as dense as a railway timetable but whether they put themselves down as Republican, Democrat, conservative, independent or liberal, only five liberal names, all running for justices of the state's supreme court. They know that running as a liberal for local office would be about as hopeless as running as a terrorist. Whatever their party, 90 per cent of them are running also on the Right to Life ticket. That means simply that they all want to get it on the record that they're against abortion, for any cause – some of them even in cases of rape or incest.

In roughly 50 candidates, I noticed there are only three Polish names. The Poles tend to mind their own business and stay out of government but they make up close to 50 per cent of the voting population. They are Roman Catholics. So Democrats and Republicans and conservatives, however English their names and whether they themselves are Congregationalists, Presbyterians, Methodists or whatever, they knew that if they didn't take a conspicuous stand against abortion, they could say goodbye to the Polish vote.

I'm afraid we shall have to talk about more in the early future about abortion because it's become a national issue. Mr Reagan made it one in his campaigning and his appointees to the justice department, most prominently his Attorney General, have been talking, as lots of Reagan Republicans in Congress have been talking, about drafting a constitutional amendment to make abortion illegal. Now the point of going to the extremity of amending the constitution is to take the adjudication of abortion cases out of the hands of the Supreme Court which, as you know, has the final say on any and all matters that appear to threaten the rights of any individual citizen.

This proposal will come as a shocker to anybody abroad who knows anything at all about the American system of government which is rooted in the belief that the three branches of the federal government – the legislature, the Congress; the executive, the presidency; and the judiciary, the courts – should have independent powers and that when these powers are in dispute, the United States Supreme Court is the ultimate arbiter, that it alone can decide whether some action of a person, a corporation, a local government, a state government, even Congress or the president himself, whether that action deprives a citizen of his rights as laid down in the written constitution.

Mr William French Smith, who is President Reagan's appointed Attorney General wants, in other words, to say, 'Well, yes, the Supreme Court must be supreme in most things but we're going to specify that on some burning issues – abortion, school busing for desegregation, for example – the court must give up its authority, since we'll put into the constitution new, specific clauses that make these things illegal once for all.'

Now this is an astounding move and it's working itself up into a mighty national debate, for what the Attorney General seems to be doing, even in the eyes of the very conservative American Bar Association, is to make the Supreme Court a handmaiden of one particular Congress to draft into permanent law the prejudices of one administration. Of course, all presidents appoint to the Supreme Court, when there's a vacancy on account of death or retirement, they all appoint men who share their political philosophy. The last time a president tried to do this with a vengeance, he wanted to enforce a compulsory retirement age on old Republican judges he didn't like and then extend the number of justices from nine to 15.

This happened in 1937 and the man who proposed it was none other than the great liberal Democrat, Franklin Delano Roosevelt. He grew fed up with the court for invalidating much of his New Deal legislation, especially in social and economic matters, so, like Lloyd George threatening to get his way by packing the House of Lords with his own political appointees, Roosevelt proposed to retire the Republican judges and appoint six new trained seals, good dependable New Dealers.

Well, there was a tremendous hullabaloo, hardly to be dignified at the time by the word 'debate', in which Roosevelt was accused of inflating the power of the presidency beyond the limits of the constitution and destroying the integrity and judicial independence of the court. In the end, the Senate sent the bill back for revision to the Senate judiciary committee, which examines and hears testimony for and against all bills affecting the federal courts, and there the bill died.

But ageing Republicans who still muster a little dudgeon when the name of Franklin Roosevelt comes up, they like to recall, as the most monstrous of all the monstrous assumptions of power that Roosevelt attempted, they recall, with a shudder, his court-packing plan.

Now it's a Republican who's going after the same end with a different tactic but the end is the same – to shackle the independence and mute the final say of the Supreme Court in certain prescribed matters. An old man I met ambling into a drug store on the main street of our seaboard town put it with devastating simplicity. 'If you ask me,' he said, 'the Supreme Court is getting too big for its boots.' That is a comment that should bring baffled tears to the eyes of any constitutionalist and, I hope, any schoolboy who knows an elementary thing or two about the way the American system was set up.

It's the sort of remark, certainly, to which there can be no rational answer. So we talked about the fall colours burning out and the Long Island water table getting perilously low so as to let in salt seepage from the sea and the bay and the swift exodus of what the natives call the summer folks. 'Yes, well,' he said, 'can't trust the tourists much. They come in here in their little boats but they bring their food and things with them. They just walk around and buy maybe some fish hooks or a can of gasoline. Tourist business is all over. Time for us to get back to our business.' And he went off to vote.

Meanwhile, to the distress of the old man if he'd known it, the Supreme Court was getting back to its business. Its first case was to decide whether labour unions can stop candidates for union offices from accepting campaign contributions from workers who are not members of the union, which would be an interesting case in any Western industrial country. The court also heard the case of a cattle farmer in Mississippi who's suing a television station for libel. Another case will test how far lawyers can go in talking in public about pending court cases. Yet another turned down an appeal from the Washington Post against the ruling of a lower court that it must come to trial in a libel suit brought by Charles Rebozo, Mr Nixon's old buddy over an article that appeared in the Post accusing him of being involved in some stolen stock certificates. This article appeared in 1973, which only goes to show again that the wheels of justice can grind exceeding slow.

Of course, if the Congress passed a constitutional amendment taking the jurisdiction of libel suits out of the hands of the Supreme Court, no doubt the judgment for or against the Mississippi cattlemen and the Washington Post would be given in half the time.

There's another case, hardly brewing yet, which may burst on us before the spring. The striking air controllers have had their union certificate taken away from them. In law,they no longer exist but to keep the planes flying safely, the Federal Aviation Authority has restricted the movement of private planes and the commercial airlines have so drastically reduced the number of their flights that some of them have gone bust. The pressure on the skeleton controllers' crews is building and the FAA says things will get tougher during the winter and until a whole new legion of controllers has been trained. The administration says the air controllers' case is closed. They were government employees and they struck against the government.

At the same time, the president heaps praise on Mr Walesa and the Polish Solidarity movement for striking against the government. The sacked, the embittered controllers are beginning to wonder if there isn't something here for the Supreme Court to ponder.

If it's noble to strike against the government in Poland, when and why is it punishable to strike against the government in America?

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

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