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Justice's Health Could Shift Court's Balance

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Washington--The health of Associate Justice Lewis F. Powell Jr. could be the deciding factor in the resolution of several crucial church-state cases now pending before the U.S. Supreme Court, legal observers here say.

The Court closed its most recent term last spring by handing down a trio of controversial decisions on church-state issues. In Wallace v. Jaffree, the Court struck down an Alabama law providing for a moment of silence at the start of the school day for prayer or meditation. The Justices also prohibited public-school teachers from offering instruction in church-affiliated schools, in School District of Grand Rapids v. Ball and Aguilar v. Felton. (See Education Week, June 12 and Aug. 21, 1985.)

The main issues presented in these cases were decided by 5-to-4 votes. In each of the cases, Justice Powell cast what was considered by many Court observers to be the swing vote, siding with the bloc of Justices that opposed the practices at issue.

But Justice Powell, 78, is believed to be in poor health, and there is widespread speculation that he may be forced to step down. If he resigns, some observers say, one of the following two scenarios could occur:

First, a dispute could erupt between the Reagan Administration and its opponents in the Senate over the President's nominee to replace Justice Powell, thus de-laying the appointment of a new Justice and leaving the Court split 4 to 4 on church-state issues.

Should the Court find itself deadlocked, the lower-court decisions before the Justices would be left standing. Several crucial cases were disposed of in this manner last year during the long period of Justice Powell's recuperation following prostate surgery.

In the second scenario, the Senate is seen giving swift approval to a nominee who is more conservative than Justice Powell, thrusting into the majority the four-member bloc of Justices in favor of lowering the wall of separation between church and state.

Among those mentioned most often as potential nominees to the Court are Judges Robert H. Bork and Antonin Scalia of the U.S. Court of Appeals for the District of Columbia Circuit and Judges Frank H. Easterbrook and Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit. All four judges are said to hold views compatible with those of President Reagan.--tm

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