NOT TOO MANY years ago, the Supreme Court was accused, often and loudly, of failing to follow the Constitution of writing into law the Justices' own notions of what the law should be. What was needed, the critics - such as former President Nixon - said, was a group of "strict constructionists" who would just follow the Constitution and the laws as they were written. Well, the strict constructionists are now a majority of the Court, and it seems clear to use that they are busy rewritting some law themselves.
We are referring to a series of decisions over the past few years in which the Court steadily limited the access of citizens of federal judges. Using their own views of what such concepts as "federalism" and "comity between courts" should mean, a five-man majority has told lower federal judges that they can no longer hear certain kinds of cases that they once heard and decided routinely. In the process, the Court has changed the Civil Rights Act of 1871 drastically. It has replaced what were once standard interpretations of that act with new ones that fit the philosophical views of a majority of its current members.
That act was passed by Congress to open the doors of federal courts to citizens who claimed their federal rights were being violated by state of local government or officials. It was a major change in American law, brought about by a congressional belief that the federal rights of citizens needed more protection than state courts would give them. For years, the Supreme Court told federal judges to abstain - temporarily - from hearing these cases in order to give state courts a chance to decide them properly. Now, it is telling federal judges to abstain - permanently - as long as the state courts will consider them. The new rule has been applied so far to criminal and contempt cases, but the language in a recent decision suggests that an extention of it across the board is not far away.
This is not a battle between courts, as a majority of the Justices sometimes makes it sound. Nor is it just a continuation of what the Court is doing in other areas - steadily reducing the scope and influence of federal courts. It is a question of where individual citizens are to look for protection of the rights the federal government says are theirs. And it concerns the judicial rewriting of the law that provided the underpinning for many of the major civil rights cases of our time.
It is conceivable that the Court's majority is right, although we doubt it, in thiking the time has come to remove the double layer of protection - in both state and federal courts - that individual rights have had for a hundred years. But if so basic a change is to be made, it ought to be made by Congress, certainly not by a Court of "strict constructionists" who are basing the change on their own notions of what the law ought to be. Indeed, Congress ought to pass the legislation that has already been introduced to put the interpretation of that 1871 statute back where it was before the present Court's majority got its hands on it.