The roots of the Burger Court lie in the JUDICIAL ACTIVISM of the WARREN COURT. The social vision of the Supreme Court under EARL WARREN was manifested on many fronts?dismantling racial barriers, requiring that legislative apportionment be based upon population, and vastly expanding the range of rights for criminal defendants, among others. At the height of its activity, during the 1960s, the Warren Court became a forum to which many of the great social issues of the time were taken.
Such activism provoked sharp attacks on the Court. Some of the criticism came from the ranks of the academy, other complaints from political quarters. In the 1968 presidential campaign, RICHARD M. NIXON objected in particular to the Court's CRIMINAL PROCEDURE decisions?rulings which, he said, favored the country's "criminal forces" against its "peace forces."
During his first term as President, Nixon put four Justices on the Supreme Court?WARREN E. BURGER, HARRY A. BLACKMUN, LEWIS F. POWELL, JR. , and WILLIAM H. REHNQUIST. Rarely has a President been given the opportunity to fill so many vacancies on the Court in so short a time. Moreover, Nixon was explicit about the ideological basis for his appointments; he saw himself as redeeming his campaign pledge "to nominate to the Supreme Court individuals who share my judicial philosophy, which is basically a conservative philosophy."
Thus was born the Burger Court. For a time, pundits, at least those of liberal persuasion, took to calling it "the Nixon Court." Reviewing the 1971 term, The New Republic lamented that the "single-mindedness of the Nixon team threatens the image of the Court as an independent institution."
Inevitably, the work of the Burger Court was compared with that of its predecessor, the Warren Court. During the early Burger years, there was evidence that, with Nixon's four appointees on the bench, a new, and more conservative, majority was indeed in the making on the Court.
By the summer of 1976, a conservative Burger Court seemed to have come of age. For example, near the end of the 1975 term the Court closed the doors of federal courts to large numbers of state prisoners by holding that a prisoner who has had a full and fair opportunity to raise a FOURTH AMENDMENT question in the state courts cannot relitigate that question in a federal HABEAS CORPUS proceeding. In other criminal justice decisions, the Court whittled away at the rights of defendants, showing particular disfavor for claims seeking to curb police practices.
Decisions in areas other than criminal justice likewise showed a conservative flavor. For example, in the same term the Court used the TENTH AMENDMENT to place limits on Congress's commerce power, rejected the argument that claims of AGE DISCRIMINATION ought to trigger the higher level of JUDICIAL REVIEW associated with SUSPECT CLASSIFICATIONS (such as race), and refused to hold that CAPITAL PUNISHMENT is inherently unconstitutional.
By the mid-1970s, a student of the Court might have summarized the Burger Court, in contrast with the Warren Court, as being less egalitarian, more sensitive to FEDERALISM, more skeptical about the competence of judges to solve society's problems, more inclined to trust the governmental system, and, in general, more inclined to defer to legislative and political processes. By the end of the 1970s, however, such generalizations might have been thought premature?or, at least, have to be tempered. As the years passed, it became increasingly more difficult to draw clean distinctions between the years of Earl Warren and those of Warren Burger.
Cases involving claims of SEX DISCRIMINATION furnish an example. In 1973 four Justices (WILLIAM J. BRENNAN, WILLIAM O. DOUGLAS, BRYON R. WHITE, and THURGOOD MARSHALL)
who had been on the Court in the Warren era sought to have the Court rule that classifications based on sex, like those based on race, should be viewed as "inherently suspect" and hence subject to STRICT SCRUTINY. The four Nixon appointees (together with Justice POTTER STEWART) joined in resisting such a standard. Yet, overall, the Burger Court's record in sex discrimination cases proved to be one of relative activism, even though the Court applied an intermediate STANDARD OF REVIEW in those cases, rather than one of strict scrutiny. In the 1978 term, for example, there were eight cases that in one way or another involved claims of sex discrimination; in six of the eight cases the Justices voted favorably to the claim, either on the merits or on procedural grounds.
In the early 1980s, with the Burger Court in its second decade, there was evidence that a working majority, conservative in bent, was taking hold. Two more Justices from the Warren era (William O. Douglas and Potter Stewart) had retired. Taking their place were appointees of Republican presidents?JOHN PAUL STEVENS (appointed by President GERALD R. FORD) and SANDRA DAY O'CONNOR (named by President RONALD REAGAN). While Stevens tended to vote with the more liberal Justices, O'Connor appeared to provide a dependable vote for the more conservative bloc on the Court.
In the 1983 term the conservatives appeared to have firm control. The Court recognized a "public safety" exception to the MIRANDA RULES and a "good faith" exception to the EXCLUSIONARY RULE in Fourth Amendment cases. The Justices upheld a New York law providing for the PREVENTIVE DETENTION of juveniles and sustained the Reagan administration's curb on travel to Cuba. As one commentator put it, "Whenever the rights of the individual confronted the authority of government this term, government nearly always won." The AMERICAN CIVIL LIBERTIES UNION'S legal director called it "a genuinely appalling term," one in which the Court behaved as a "cheerleader for the government."
No sooner had such dire conclusions been drawn than the Burger Court once again confounded the Court-watchers. The very next term saw the Court return to the mainstream of its jurisprudence of the 1970s. The Court's religion cases are an example. Between 1980 and 1984 the Court appeared to be moving in the direction of allowing government to "accommodate" religion, thus relaxing the barriers the FIRST AMENDMENT erects between church and state. The Court rebuffed challenges to Nebraska's paying a legislative chaplain and Pawtucket, Rhode Island's displaying a Christmas crèche. Yet in the 1984 term the Court resumed a separationist stance, invalidating major programs (both federal and state) found to channel public aid to church schools, invalidating an Alabama statute providing for a "moment of silence or prayer" in public schools, and striking down a Connecticut law making it illegal for an employer to require an employee to work on the employee's chosen Sabbath. The Reagan administration had filed briefs in support of the challenged laws in all four cases, and in each of the four cases a majority of the Justices ruled against the program.
Even so brief a sketch of the Burger Court's evolution conveys something of the dialectical nature of those years on the Court. In reading Burger Court opinions, one is sometimes struck by their conservative thrust, sometimes by a liberal result. Here the Burger Court is activist, there it defers to other branches or bodies. There is continuity with the Warren years, but discontinuity as well. One is struck, above all, by the way in which the Court in the Burger era has become a battleground on which fundamental jurisprudential issues are fought out.
No simple portrait of the Burger Court is possible. Some measure of the Burger years may be had, however, by touching upon certain themes that characterize the Burger Court?the questions which observers of the Court have tended to ask and the issues around which decision making on the Court has tended to revolve.
At the outset of the Burger era, many observers thought that a more conservative tribunal would undo much of the work of the Warren Court. This prophecy has been unfulfilled. The landmarks of the Warren Court remain essentially intact. Among those landmarks are BROWN V. BOARD OF EDUCATION (1954) (school desegregation), REYNOLDS V. SIMS (1964) (legislative REAPPORTIONMENT), and the decisions applying nearly all of...