A Change of Direction: Habeas Corpus from Warren to Burger

• Author: Neil D. McFeeley
• DOI: http://doi.org/10.1177/106591297903200208
• Published date: 01 June 1979
• Date: 01 June 1979
• Subject Matter: Article

A

CHANGE

OF DIRECTION: HABEAS

CORPUS

FROM

WARREN

TO

BURGER

NEIL

D.

MCFEELEY

University

of

Idaho

T

IS

ALWAYS of great academic and general interest to observe developments

on the Supreme Court of the United States. It is especially significant to

ob-

I

serve such developments when they arise under

a

new Chief Justice and

a

“new” Court and when they are likely to portend long-lasting changes in the

majority’s interpretation of the Constitution and the statutes of the United States.

It is now ten years since IVarren Burger succeeded

Earl

\Varren

as

Chief Justice

and it is valuable to study whether the Burger Court has greatly modified the de-

cisions and doctrine of the Warren Court era. This paper attempts to measure the

extent of the changes

with

special emphasis on the writ of habeas corpus and its

significance for institutional and procedural change.

THE

WARREN COURT

TO

THE

BURGER COURT

We

may identify the IVarren Court

as

the basically liberal, activist majority

(with various members) which existed from Warren’s appointment in 1954 until

he

resigned in 1969. It was best seen in the mid-1960s when the Court

was

promul-

gating significant decisions in

all

areas of law

with

pat vigor. Perhaps the essence

of the \Varren Court is best captured in Archibald CoxZs book on that Court, sub-

titled “Constitutional Decision as an Instrument of Reform.”

Cox argues that the four main themes

of

the IVarren Court was

a

concern for

racial justice, the reform of criminal procedure, the desire for political democracy

through reform in voting rights and

legislative

reapportionment, and

a

concern for

the political freedoms, especially speech and association? The

first

three of these

were directly linked to the concept

of

equality.

The

Warren Court

era

was

a

time

of

extraordinary judicial creativity and of progress for individual liberties, but it

was also

a

time accompanied by institutional changes and shifts in the allocation of

powers whose “long-range consequences [were] difficult to measure and which the

PVarren] Court sometimes seem[ed] to brush aside without careful consideration

in its enthusiasm for immediate progress.”*

One of Richard Nixon’s campaign promises in 1968 was to change the direc-

tion of the Supreme Court

by

appointing “strict constructionists” to the Bench.

Related to this was the law and order oratory of the Nixon-Agnew campaign which

pledged to support the forces

of

law against the forccs

of

crime. As President,

Nixon

soon

had opportunities with the Warren and Fortas vacancies to implement

those promises.

To

fill

the Chief Justice position, Nixon nominated District of Columbia Cir-

cuit Court of Appeals Judge IVarren

Earl

Burger and the Senate promptly con-

firmed. After some political and ideological battles and delays, the other vacancy

was

filled

by Appellate Judge

Harry

Blackmun. Thus 1969 might be considered

the beginning of the “Rurger Court,” but especially by December 1971, when Lewis

Powell and \Villiam Rehnquist were on the Bench replacing Justiccs Black and

Harlan, the Burger Court was in

full

swing. (The justices remaining from

the

Warren

Court are in

a

minority with the 1975 confirmation of Lewis Paul Stevens

to

the Douglas vacancy.)

Archibald Cox,

The

Warren Court: Constitutional Decision

as

an

Instrument

of

Reform

(Cambridge: Harvard

University

Press,

1968).

‘Ibid.,

p.

13.