Every parent frequently feels like barking at the children the way Jean Kerr did: whatever you're doing, stop it! One day last week the Supreme Court seemed to feel that way toward the lower courts that are overloading the nation's judicial circuitry.
In two 5-4 decisions the court overturned a lower court's meddlesome ruling against a state statute and it reversed a lower court's ruling on the ground that the court had adopted a too expansive notion of how a plaintiff acquires "standing" to sue.
A California statute says all public employees declared by law to be peace officers must be U.S. citizens. Three permanent resident aliens who wanted to be deputy probation officers challenged that as a violation of their constitutional right to "equal protection" of the laws. A District Court sided with them. But the Supreme Court (Justice Byron White speaking for the majority) did not.
The court acknowledged that aliens comprise a "discrete and insular" minority meriting "heightened judicial solicitude." Thus it nodded approvingly toward a doctrine promulgated in 1938 and used as a justification for judicial activism ever since. Nevertheless, the court said governments have substantial discretion to limit participation in government functions to people "within the basic conception of the political community," which aliens by definition are not. Judicial scrutiny of restrictions on aliens should not be as demanding when they concern political as opposed to economic values (such as access to welfare).
The exclusion of aliens from the performance of certain governmental processes, such as a deputy probation officer exercising the community's coercive authority, is "a necessary consequence of the community's process of self-definition." Actually, calling it "necessary" is going unnecessarily far. The court's point is just that nothing in the Constitution demands strict limits on states' discretion regarding closing some categories of public jobs to aliens.
Speaking for the minority, Justice William Brennan was, as judicial activists often are, quick to ascribe and denounce motives: he said the exclusion of aliens as deputy parole officers stems "solely" from "parochialism and hostility" toward foreigners. Brennan also expressed the activist's itch to fine-tune the work of legislatures: he said California made citizenship a requirement for too many job categories.
The second case arose because in 1976 the Department of Health, Education and Welfare, acting under a 1949 law allowing the free transfer of surplus government property to nonprofit educational institutions, gave a former Army hospital to Valley Forge Christian College. About 650 properties worth $26 million have been transferred to religious institutions, but a press release about this transfer caught the eye of Americans United for Separation of Church and State, a "public interest" lobby. It sued on the ground that the transfer violated the First Amendment ban on the "establishment" of religion.
The court did not get to the "establishment" question, for which fact we should (if Americans United will tolerate this) thank God. This court makes a horrible hash whenever it touches the "establishment" clause. In this case, the court made a contribution to limiting America's Niagara of litigation.
A district court held that the mere fact that its members are taxpayers did not give Americans United standing to sue in a case that did none of them tangible injury. An appeals court agreed that they could not sue as taxpayers, but held that merely as citizens they could claim injury to their right to a government that does not establish religion.
The Supreme Court dissenters argued that invocation of the establishment clause gives special standing to any taxpayer because that clause is a unique constitutional limit on the taxing power: expenditure of tax money to encourage religion is, they said, the only form of expenditure that is explicitly and categorically forbidden.
But Justice William Rehnquist, speaking for the majority, argued that if standing to sue could derive from such a generalized grievance, from such an "injury" as remote and indeterminable as the one alleged in this case, courts would become all-purpose ombudsmen. They would be overrun by persons claiming standing to sue by virtue of nothing more than the distress they feel about governmental conduct they dislike.
The second case may have the jolly effect of making life dreary for those groups that live for the fun of expelling Christmas creches from courthouse lawns. But both cases should help limit America's litigiousness. The court divided the same way in both cases. The dissenters favoring activism were Harry Blackmun, Brennan, Thurgood Marshall and John Paul Stevens. The majority for restraint included Chief Justice Warren Burger, Lewis Powell, Rehnquist, White and--President Reagan must be pleased to note--Sandra O'Connor.