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The Reagan court.

In our special issue "Fifteen Years of the Burger Court," we said that the composition of the supreme Court was a matter for election debate. Conservatives agree with us. On October 2, National Public Radio's All Things Considered Interviewed Bruce Fein, formerly the Reagan Administration's Associate Deputy Atorney General and General Counsel for the Federal Communications Commission. Fien has written extensively on the Court, and as reporter Nina Tolenberg points out, "His views are echoed elsewhere in the Administration, including high up in the While House and at the Justice Department." Because what he says reflects so accurately the New Right's agenda for the Supreme Court, we publish excerpts of the program.

FEIN: I believe that perhaps the most apposite comparison to this year's election would be 1936. At that time Franklin D. Roosevelt expressly made the Supreme Court an issue. He repeatedly denounced many of the High Court's decisions that were invalidating a series of his New Deal legislation.

First, in the area of abortion, I believe ultimately that Roe v, Wade will be overruled.

Ibelieve that [the] principle [known as one man, one vote] has no foundation in the constitutional origins. It was not accepted by the Republic for almost 175 years, until 1962, and ... simply cannot stand as a constitutional mandate.

TOTENBERG: Fein outlines other areas of law ripe for reversal under a Reagan court: sex discrimination.

FEIN: I think we will find greater latitude permitted the legislative bodies in dealing with gender classifications or discrimination. That is another area in which over the last ten years, really, a jurisprudence authored almost exclusively by the Court under the Chief Justiceship of Warren Burger has created very substantial burdens for legislatures in discriminating between males and females in their legislative activity.

TOTENBERG: In the criminal law, Fein says, the Reagan Court would not be satisfied merely to trim back decisions of the Warren Court.

FEIN: I think perhaps five, eight, years are needed before we will find a new reconstituted Court overruling such landmark cases as Miranda against Arizona, which requires police to inform suspects of their rights to silence and to an attorney when they are under interrogation and being held in custody. I believe that case will be overruled. I believe the Court will continue to relax standards that must be complied with before imposing the death penalty.

TOTENBERG: Another area that Fein and many others say would change under a Reagan Court is citizen access to courts....

FEIN: With a Reagan Court, I believe we would find substantial limits placed upon the ability of a private citizen who has not suffered what we would traditionally call a tangible permanent injury; either he has been physically hurt or he has lost money or some tangible way of that sort. If he hasn't suffered that kind of injury, I think the Court will announce doctrine that will largely keep him out of the Federal judiciary.

TOTENBERG: another crusade of the President's is to allow greater accommodation between church and state.... Mr. Reagan would like ... to overturn the key decision in the church-state relationship, the decision banning spoken prayer in public schools. FEIN: I do believe that a Court, once again, dominated by Reagan appointees, would overrule the school prayer decisions.

TOTENBERG: ... Under the Warren and Burger Courts, it's been established that most of the Bill of Rights apply not only to the Federal government but to state governments as well. Many Reagan conservatives do not accept this legal doctrine. They believe, for example, that while the First Amendment forbids the Federal government to arrest you for saying certain outrageous things, a state government could be free to lock you up for saying the same things....

FEIN: The First Amendment itself says Congress shall make no law restricting or abridging freedom of speech. A state, as far as I know, still is not Congress.

TOTENBERG: As Bruce Fein pointed out at the beginning of this broadcast, the 1984 election is more than a fight for the Presidency. It is a fight for the future of the Supreme Court and the law that will govern this country into the twenty-first century.
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Title Annotation:former Reagan official espouses administration views
Publication:The Nation
Article Type:editorial
Date:Oct 27, 1984
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