Civil Liberties Voting Patterns in the Burger Court, 1975-78

Date01 June 1981
Published date01 June 1981
Subject MatterArticles
University of New Orleans
IS the Burger Court really up to? Are the justices out to undo
the work of the Warren Court and ultimately destroy civil liber-
ties? Or are the justices very carefully readjusting the delicate bal-
ance between liberty and order to correct for the libertarian excesses of the
These - and a host of related questions - have been extensively de-
bated in both academic and popular forums for a decade. Unfortunately
these debates have produced as much heat as light. Answers to the questions
posed often turn on such factors as the opinions chosen for analysis and/or
the preferences/biases of the analyst.
Civil libertarians, of course, tend to view the Burger Court’s decisions
with alarm, warning of backsliding and repression.’ Without a doubt there is
more than a little foundation for a negative reaction to the U.S. Supreme
Court’s record on civil liberties since 1969. In many ways the contrast with
the Warren Court is a sharp one. While the late Warren Court (1962-69)
consistently resolved an overwhelming majority of non-unanimous civil
liberties cases in favor of the civil liberties claimant, Burger Court majorities
have just as consistently rejected more than half of civil liberties claims. And
there are other indicators of change. Several of the Warren Court’s most
noted libertarian precedents have been reversed, modified, undermined, or
eroded.’ At the individual level, Justices William J. Brennan, Jr. and Thur-
good Marshall -
both almost invariably members of the victorious liberta-
rian majority in the final years of the Warren Court - have become the
Burger Court’s most frequent and most vocal dissenters.
Despite these indicators of a Court unfavorably disposed toward most
civil liberties claims, careful observers have recognized that the Burger
Court’s record is not entirely one-sided. Glendon Schubert suggested early
in Chief
Justice Burger’s tenure that the contemporary Court was hardly less
libertarian (assuming the validity of this comparison over timet than the
early Warren Court.3 Moreover, Stephen Wasby has pointed out that con-
tinuity as well as change marked the transition from the Warren Court to the
Burger Court.4 Indeed, one may recite a litany of decisions in which Burger
Analysis of this variety has moved from such traditional outlets as the New York Times, Civil
Liberties Review, The Progressive and the New Republic to the pages of Playboy where these
arguments will no doubt receive much wider exposure. See Robert Sherrill, "Injustices of
the Burger Court," Playboy, April 1979, pp. 110-20, 230-33.
2 Examples include Harris v. New York, 401 U.S. 222 (1971), distinguishing Miranda v. Arizona,
384 U.S. 436 (1966); Labine v. Vincent, 401 U.S. 532 (1971), distinguishing Levy v.
Louisiana, 391 U.S. 68 (1968); Stone v. Powell,
U.S. 465 (1976), limiting Fay v. Noia, 372
U.S. 391 (1963) and overruling Kaufman v. U.S., 394 U.S. 217 (1969); Hudgens v. NLRB,
424 U.S. 507 (1975) and Lloyd Corporation v. Tanner, 407 U.S. 551 (1972), overruling
Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968). For en-
lightening commentary see Paul Bender, "The Techniques of Subtle Erosion," Harper’s,
December 1972, pp. 18-32, and Stephen L. Wasby, The Supreme Court in the Federal Judicial
System (New York: Holt, Rinehart and Winston, 1978), pp. 9-12, 17-21.
Glendon Schubert, The Future of the Nixon Court (University Lectures, University of Hawaii,
May 9, 1972), p. 12.
Stephen L. Wasby, Continuity and Change: From the Warren Court to the Burger Court (Pacific
Palisades, Calif.: Goodyear, 1976). See also Wasby, "Certain Conservatism or Mixed Sur-
prise ? Civil Liberties in the Burger Court, 1976-77," Civil Liberties Review 4 (November/
December 1977): 33-51.

Court majorities have extended the frontiers of civil liberties beyond the last
outposts of the Warren Court.5
Whatever the conclusion, these and similar commentaries are most often
based on analysis of opinions in illustrative cases. The merit of this approach
is that it focuses attention on those significant cases with the greatest poten-
tial impact on politics and society. At the same time, such an approach may
obscure more general trends. Thus, the case method needs to be
supplemented by consideration of more complete voting data. Indeed,
political scientists may make a unique contribution to the debate about the
direction of the Court with systematic analysis of the voting records of indi-
vidual justices. This paper, therefore, focuses on civil liberties voting pat-
terns in the Burger Court from the appointment of Justice Stevens in Oc-
tober 1975 through the end of the 1977-78 term.
Inevitably the analyst of Supreme Court voting patterns must confront
the question of what cases are to be included in the analysis. As David W.
Rohde and Harold J. Spaeth have written, &dquo;Although there is no inherent
superiority in counting cases and votes one way rather than another, the
matter of method is sufficiently important to require specification.&dquo;6 For this
paper all cases decided with full opinion (unanimous as well as non-
unanimous), plus all per curiam decisions evoking dissent on the merits are
included When several cases are decided with a single opinion, each case
has been counted separately. Finally, a few complex cases, most notably the
Bakke case, have been counted twice -
once for each major issue that pro-
duced a distinct voting alignment.&dquo;
For this paper it was also necessary to establish a working definition of a
&dquo;civil liberties case.&dquo; Seeking a criterion broad enough to encompass both
constitutional and statutory claims, but not so broad as to sweep almost every
Supreme Court case into the civil liberties category, I have arrived at this
definition: a civil liberties case is one in which the Court’s decision turns on a
personal claim of right involving the Bill of Rights or the Fourteenth
Amendment, plus cases turning on analogous claims under federal statutes.9
Ambiguities in the statutory cases were resolved by focusing on the extent to
which the statutory claim is functionally analogous to a constitutional claim.
Thus, employment discrimination cases under Title VII of the Civil Rights
Fronteiro v. Richardson, 411 U.S. 676 (1973) (sex discrimination); Runyon v. McCrary, 427 U.S.
160 (1976) (private school segregation): Roe v. Wade 410 U.S. 113 (1973) (right to privacy);
Morrissey v. Brewer, 408 U.S. 472 (1972) (rights of prisoners); Bates v. Arizona Bar, 433 U.S.
350 (1977) (First Amendment, lawyer advertising). See Henry J. Abraham, "Of Myths,
Motivations, and Morality: Some Observations on the Burger Court’s Record on Civil
Rights and Liberties," Notre Dame Lawyer 52 (October 1976): 77-86, for a forceful presen-
tation of this view of the Burger Court.
David W. Rohde and Harold J. Spaeth, Supreme Court Decision Making (San Francisco: Freeman,
1976), p. 134.
My rule for counting case turns out to be substantially the same as the rules employed by
Rohde and Spaeth, ibid., pp. 135-37.
For the 1975-78 period, only two cases have been counted twice. Regents v. Bakke, 438 U.S. 265
( 1978) is counted once for the 5-4 vote in favor of Bakke’s statutory claim of discriminat-
ory treatment and once for the different 5-4 alignment upholding the use of race as a
remedial measure in affirmative action programs. Wolman v. Walter, 433 U.S. 229 (1977) is
counted once on the issue of the constitutionality of the loan of instructional materials to
sectarian schools (struck down on 6-3 vote) and once on the issue of provision of school
services to students in these schools (upheld on a different 6-3 alignment).
Glendon Schubert, The Judicial Mind (Evanston: Northwestern University Press, 1965), p. 102.

Act of 1964 are included on the grounds that these claims are similar in
nature to a claim of race or sex discrimination under the Fourteenth
Amendment. On the other hand, Freedom of Information Act cases have
been excluded on the grounds that most of.these claims have been raised in
contexts bearing little functional resemblance to claims of...

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