Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause
| Author | Joseph F. Kobylka |
| Published date | 01 December 1989 |
| Date | 01 December 1989 |
| DOI | http://doi.org/10.1177/106591298904200407 |
| Subject Matter | Articles |
LEADERSHIP
ON
THE
SUPREME
COURT
OF
THE
UNITED
STATES:
CHIEF
JUSTICE
BURGER
AND
THE
ESTABLISHMENT
CLAUSE
JOSEPH
F.
KOBYLKA
Southern
Methodist
University
[The
Chief Justice]
is
the
head
of
the
Court,
and
while
his
vote
counts
but
one
in
the
nine,
he
is,
if
he
be
a
man
of strong
and
persuasive
per-
sonality,
abiding
convictions,
recognized
by
learning
and
statesmanlike
foresight,
expected
to
promote
team-work
by
the
Court,
so as
to
give
weight
and
solidarity
to
its
opinions.
— William
Howard
Taft,
quoted
in
Murphy
(1964:
83)
He
is
a
very
emotional
guy,
who
somehow
tends
to
make
you
take
the
opposite
position
on
issues.
To
suggest
that
he
can
bring
the
Court
together—as
hopefully
a
Chief Justice
should—is
simply
a
dream.
— A
former
Court
of
Appeals
colleague
on
hearing
of
Burger’s
nomination
to
be
Chief
Justice,
New
York
Times,
22
May
1969
TUDENTS
of
the
Supreme
Court
of
the
United
States
often
view
it
through
&dquo;eras.&dquo;
Some
are
named
after
Presidents
whose
ap-
pointments
molded
the
identity
of
the
Court
(e.g.,
the
&dquo;Roosevelt
Court&dquo;);
others
are
defined
by
dominant
judicial
personalities
(e.g.,
the
&dquo;Marshall
Court&dquo;).
These
labels
reflect
our
perception
of
the
ful-
crum
of
influence
on
the
Court.
When
Warren
Burger
replaced
Earl
Warren,
speculation
arose
about
a
pending
shift
in
judicial
eras.
Yet,
upon
Burger’s
retirement
the
consensus
was
that
he
left
&dquo;a
Supreme
Court
that
in
terms
of
judicial
doctrine
has
not
been
notably
different
from
the
one
he
inherited.&dquo;
It
was
an
irony
of
Warren
Burger’s
years
as
Chief
Justice
that
Supreme
Court
commentators
frequently
questioned
the
degree
to
which
he
ac-
tually
led
the
Court
over
which
he
so
energetically
presided.
It
was
occa-
sionally
said
of
the
Chief
Justice
that
the
attention
he
paid
outside
the
Received:
October
5,
1987
.
First
Revision
Received:
August
11,
1988
Second
Revision
Received:
December
20,
1988
Accepted
for
Publication:
January
9,
1989
NOTE:
An
earlier
version
of
this
paper
was
delivered
at
the
1987
Meetings
of
the
Mid-
west
Political
Science
Association,
8-11
April,
Chicago,
Illinois.
546
Court
to
Judicial
administration
came
at
the
expense
of
the
actual
craft
of judging,
of
building
and
holding
coalitions,
and
of shaping
doctrine.
(Greenhouse
1986,
emphasis
added)
This
evaluation
comes
as
no
surprise.
Scholarly
literature
(e.g.,
Le
Var
1977;
Baum
1981:
140;
Steamer
1986)
and
the
popular
press
(e.g.,
Silver
1970;
Totenberg
1975;
Woodward
and
Armstrong
1979;
Wer-
miel
1984)
noted
Burger’s
difficulties
in
marshalling
the
Court.
Por-
trayed
as
an
arrogant,
prideful,
and
abrasive
personality
who
was
as
likely
to
alienate
as
to
appease,
the
&dquo;conventional
wisdom&dquo;
is
that
his
leadership
skills
were
unequal
to
his
position.
In
short,
the
Burger
Court
never
became
&dquo;the
Burger
Court&dquo;
because
of
the
Chief
Justice’s
inability
to
lead
it.
This
assessment,
however,
is
insufficient.
It
cannot
fully
explain
Burger’s
stewardship
difficulties
because
it
incompletely
conceptualizes
leadership.
Reducing
this
concept
to
its
individual
factors
neglects
its
contextual
elements-the
environment,
both
intra-
and
extra-judicial,
in
which
judges
seek
influence.
Treatment
of
these
elements
illumi-
nates
the
study
of
other
Chief
Justices,
but
they
have
not
been
included
in
examinations
of
Burger.
The
reason
for
this
lies
in
the
recentness
of
Burger’s
tenure:
the
sources
on
which
scholars
such
as
Murphy
(1964),
Howard
(1968),
and
Steamer
(1986)
rely
facilitate
the
analysis
of
his-
torical
courts,
but
are
unavailable
when
contemporary
courts
are
the
subject
of
study.
To
jettison
context
and
focus
on
individual
factors
in
the
analysis
of
contemporary
judicial
dynamics,
however,
invites
analytical
inaccuracy:
even
a
&dquo;policy-oriented&dquo;
justice
possessing
useful
individual
skills
would
have
trouble
leading
a
polarized
court
facing
divisive
issues.
Thus,
a
complete
examination
of
leadership-even
on
contemporary
courts-requires
consideration
of
both
individual
and
contextual
level
factors.
While
the
study
of
Burger’s
tenure
as
Chief
Justice
cannot
yet
be
enriched
by
the
usual
historical
sources,
close
attention
to
other
readily
available
data
sources
makes
possible
an
analysis
of
contextual
influences
on
his
leadership
efforts
and
a
more
complete
assessment
of
those
efforts.
Examination
of the
Burger
Court’s
treatment
of
church-state
cases
demonstrates
the
linkage
between
justice-centered
and
contextual
fac-
tors
and
the
analytical
richness
that
results
from
combining
qualitative
and
quantitative
methodologies
in
the
study
of
contemporary
attempts
to
influence
judicial
policy
outputs.
Inheriting
ambiguous
doctrine,
and
desirous
of
furthering
state
accommodation
of
religion,
Burger
tried
to
modify
interpretation
of
the
establishment
clause.
At
two
dif-
ferent
junctures
he
had
the
Court
poised
to
accomplish
this
end,
only
to
fail.
Close
analysis
of
these
failed
efforts
suggests
that
the
&dquo;conven-
tional
wisdom&dquo; - Burger
failed
to
achieve
his
policy
agenda
because
of
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