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If Ronald Reagan is re-elected and the court loses either of its two aging liberals, William Brennan and Thurgood Marshall, the conservative drift could become a sea change. The right to abortion, affirmative action for blacks and women, the ban on school prayer, many procedural safeguards for criminal suspects and free-speech rights would be vulnerable to weakening, if not outright reversal. Says University of Minnesota Law School Associate Professor Daniel Farber: "We could basically end up with the law looking a lot like it did before 1954. We could expect a much more conservative court, a Warren Court in reverse."
Democratic Candidate Walter Mondale is quick to raise this specter. "Don't let Mr. Reagan get his hands on the Supreme Court!" he shouted at the N.A.A.C.P. convention. Appearing at George Washington University last week, Mondale declared, "This election is not about Republicans sending hecklers to my rallies. It is about Jerry Falwell picking Justices for the Supreme Court." (The Fundamentalist preacher had earlier boasted that "we" will get three to five high court appointments.) The line drew a prolonged standing ovation for Mondale and a "We want Fritz" chant from the students. But the Democratic candidate usually makes an issue of the court only before liberal audiences, presumably because he fears it will not play well with more politically mixed crowds. The President has remained mum about his plans for the court, but the Republican platform calls for the appointment of Justices who "support traditional family values and the sanctity of innocent human life."
Reagan would certainly try to choose conservatives, just as Mondale would surely attempt to pick liberals. With both Brennan and Marshall nearing retirement, Mondale would need a whole raft of appointments to revive the liberal activism of the Warren era. More likely, he would only be able to prop up the court's aging left wing. The court as a whole would continue to drift, advancing here, trimming back there.
Whoever is elected, the future direction of the court cannot be predicted with certainty. Justices have been known to rudely surprise the President who appointed them. Theodore Roosevelt, for example, expected Oliver Wendell Holmes to uphold his trust-busting legislation. When Holmes disappointed him, Roosevelt exclaimed, "I could carve out of a banana a judge with more backbone than that!" Dwight Eisenhower had no reason to think that Warren and Brennan would turn out to be flaming liberals; Ike later regretted Warren's appointment as his worst mistake. "People change on the court," says Dennis Hutchinson of the University of Chicago Law School. "They're not cookie-cutter ideologues."
The Supreme Court was last a major election issue when Richard Nixon campaigned against the activist Warren Court in 1968, vowing to appoint Justices who would "interpret the Constitution strictly." Within three years, Nixon had four openings to fill, including that of Chief Justice (Warren stepped down at age 77 in 1969). Pundits proclaimed a "Nixon Court" under Burger, the new Chief Justice, and waited for a veer to the right.
It did not come. The Burger