McCloskey Sees Libertarian Power In New Supreme Court Alignment

"It is clear that for the moment the strength in the Supreme Court lies on the side of the libertarians--Justices Black, Brennan, Douglas, and Warren," Robert G. McCloskey, professor of Government, said yesterday.

McCloskey noted that with the resignation this August of Justice Felix Frank-further, the argument for Supreme Court conservatism and self-restraint "lost its most powerful intellectual champion." He added that if one of the two recently appointed justices joins the four-man libertarian group, there will then be the potential for "dramatic reversals" of previous opinions, and for greater willingness "to take up the cudgel against state invasions of rights regarded as federally protected."

Illustrating the possibility of opinion reversals if the "libertarians" obtain a majority on the Court, McCloskey pointed to the fact that most decisions in subversion cases of the past decade were 5-4 verdicts. With the departure this year of Frankfurter and Charles E. Whittaker, who joined the conservative majority in those cases, the "balance could shift to the other side."

McCloskey qualified his predictions with the reservation that no one really knows what judicial positions will be taken by Arthur Goldberg, appointed in August after Frankfurter's resignation, and Byron R. "Whizzer" White, appointed last March to replace Whittaker. The court term which began on Oct. 8 is the first one for both new justices.

Among cases to be heard during the current term are two involving the constitutionality of reading Bible verses and the Lord's Prayer in public schools. These cases, from Maryland and Pennsylvania, pose the question of whether there is a difference between Bible or Lord's Prayer recitation and the reading of a prayer actually written by state officials, which was ruled unconstitutional by the Supreme Court in a New York case last June.

"The general approach and language of the New York prayer decision suggest that Bible-reading requirements will have a rather rocky time in the Court," McCloskey said. He doubted, however, that Justice Black's June majority opinion will be extensively clarified, "because the problem is so touchy that even if Bible-reading is invalidated, the Court will couch its decision in narrow terms."

Paul A. Freund, Carl M. Loeb University Professor in the Harvard Law School, commented yesterday that the Maryland and Pennsylvania cases now coming up present the issue in "more meaningful form" than did the New York case, since the Bible and Lord's Prayer are more clearly sectarian than was the "relatively innocuous" prayer composed by the New York Regents.