Power to the People. What People?

The central vice of liberal judicial activism, conservative theorists have long contended, has been unwarranted interference with the rights of the people to make the laws through their elected representatives.

Now that Reagan and Bush appointees are firmly in command of the Supreme Court, will they practice the deference to elected representatives that their sponsors preach?

Perhaps. But the record so far suggests no great devotion to the policy-making primacy of the nation’s pre-eminent representative assembly, the U.S. Congress-which also happens to be the object of withering conservative scorn. And some decisions have the feel of a judicial-executive pincer movement cutting Congress out of the process of revising statutory policy.

A few examples:

• The much-discussed abortion-counseling decision this May, Rust v. Sullivan, adopts an approach to statutory interpretation that amounts to a significant transfer of law-making initiative from Congress to the executive.

• Other rulings have evinced an unrestrained readiness to revise the settled meaning of statutes by overruling precedents that Congress has not chosen to disturb.

• Some of the conservative justices seem ready to impose major limitations on the power of Congress, as well as the states, to use racial preferences to remedy past societal discrimination. If they succeed, it would be an arrogation of power as activist in some ways as the 1973 decision legalizing abortion.

The Reagan and Bush appointees are far from being a monolithic bloc, and it is too early to say whether they will be as prone as liberals have been to thwart majoritarian democracy. But it maybe time to start keeping score.

The 5-4 Rust decision upheld federal regulations barring federally funded family-planning clinics. from doing any abortion counseling or referral- even from giving honest answers to patients’ questions about abortion.

While widely deplored for its harsh impact on poor women. Rust also delivered a serious blow to Congress: It allowed a Reagan administration bureaucrat, in effect, to enact a highly controversial statute that Congress never had approved and apparently never would have approved.

The Court did this by applying the so-called Chevron doctrine, which holds that when an act of Congress is silent or ambiguous on an issue, the courts must give substantial deference to whatever interpretation (assuming it’s plausible), is adopted by the federal agency administering the statute.

This makes perfect sense when a specialized agency is called on to fill in the interstices of a complex regulatory statute that the agency has actually been delegated to administer.

But in Rust, Chief Justice William Rehnquist used Chevron to let the Reagan administration change an important national policy on a subject of enormous public concern, without congressional input, in the face of grave constitutional doubts as to whether-the new policy violated the First Amendment rights of clinic employees.

In the 1971 law that barred use of federal money in ‘ "programs where abortion is a method of family planning," Congress did not say whether it meant to bar abortion counseling or referral. It never suggested any intent to forbid doctors at federally funded clinics from giving full and honest answers to their patients’ questions.

For 17 years, federal regulators construed the law as a ban on abortions-not on speech about abortion-in such clinics.

All that changed in 1988, when Gary Bauer, an anti-abortion bureaucrat in the Reagan administration, engineered new regulations reinterpreting the statute as a broad ban against all abortion counseling, advocacy, and referral.

In upholding the new regulations, Rehnquist let Chevron -style deference to the executive’s reinterpretation of a statute override the far more important and deeper-rooted rule that the Court should, whenever possible, construe statutes to avoid raising constitutional doubts.

Now we have the spectacle of lopsided majorities in the House and Senate angrily rejecting this executive-judicial distortion of their statute, and seeking to restore the status quo ante. But they will be hamstrung unless they can muster the super-majorities needed to override President Bush’s threatened veto.

The conservative majority also seized the policy-making initiative from Congress in two decisions this year that cut back drastically on the access of death-row inmates and other state prisoners to federal habeas corpus review of their convictions.

In doing so, the Court not only overruled a major statutory precedent, which Congress could have overruled itself if it had wanted to change the law; it also pre-empted an active debate in Congress over competing proposals (including one championed by Rehnquist himself) for habeas corpus reform.

The Rehnquist Court had engaged in this type of judicial legislating before, in Wards Cove Packing Co.v. Atonio: In that 1989 ruling, the conservative-justices rewrote federal civil-rights law by overruling a key aspect of the 1971 decision in Griggs v. Duke Power Co.

Griggs had placed a heavy burden-perhaps too heavy-on employers to prove the business necessity of practices that have a disparate impact on minority applicants. It may have created more pressure for quota hiring than Congress intended in the 1964 Civil Rights Act. But for 18 years, Congress had been content to treat Griggs as an integral feature of federal civil-rights law.

Not so the Reagan administration, which wanted to overrule Griggs. As former Solicitor General Charles Fried writes in his new book, Order and Law: "With the loss of the Senate in the 1986 midterm election, legislative relief became unthinkable, so that the Supreme Court was the only available forum for our views."

The Court, obliged by shifting to the plaintiff the burden of proof (which Griggs had placed on the defendant) on the issue of business necessity.

Thus was the accepted meaning of an important act of Congress transformed with Congress having no say about it. Although Congress made it quite clear after Wards Cove (as it has just done in the wake of Rust) that it disapproved of the change, it fell just short of overriding President Bush’s veto last year and is still struggling to reach a veto-proof majority.

The aversion to racial quotas that animates Wards Cove‘ has also energized a conservative push to hold governmental affirmative-action programs unconstitutional.

The big question is how far the Court will go- specifically, whether it will sweep aside congressionally adopted preferences like those the Court approved in Fullilove v. Klutznick in 1980 and Metro Broadcasting Inc. v. Federal Communications Commission last year.

Dissenting in Metro Broadcasting, the four Reagan-appointed justices said they would subject racial preferences adopted by Congress to the same "strict scrutiny" the Court decreed in 1989 for state and local affirmative-action programs.

These four might pick up a fifth vote if the Senate confirms the pending nomination of Judge Clarence Thomas, an’ ardent critic of racial preferences. Another possible vote is Justice David Souter, whose views are still unknown.

If the Court does launch a frontal attack on . Congressional affirmative-action preferences, it would be asserting judicial supremacy over an. important realm of national policy with little warrant in the Constitution, or at least in the original intent of the relevant provisions.

The framers of the 14th Amendment and its equal-protection clause, which the Court has used to restrict state and local affirmative-action plans, were aiming mainly to help black people, for whose benefit the same 19th-century Congress adopted some explicit racial preferences. There is , little historical support for the argument that the amendment was intended to provide whites with the same protection against discrimination as blacks.

And the Fifth Amendment’s due-process clause, which the Reagan appointees invoke to protect whites against discriminatory federal laws (and the Court has long used to protect racial minorities), was not originally intended to reach racial discrimination at all.

Whatever the attractions as policy of the broad ban on preferential affirmative action that Justice Antonin Scalia and others would like to impose, the "originalist" philosophy that Scalia purports to follow provides no basis for ending democratic self-governance over this important and contentious set of issues.

In the coming years, the Court’s review of congressionally adopted racial preferences will be a major test of whether we are really entering an era of deference to the people’s elected representatives, or one of conservative judicial activism.