BURGER COURT (1969–1986)

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 the procedural protection of the bill of rights in criminal trials to the states.

In all of these areas, there have been, to be sure, important adjustments to Warren Court doctrine. Sometimes, a majority of the Burger Court's Justices have shown a marked distaste for the ethos underlying those precedents. Thus, while leaving such precedents as miranda v. arizona (1956) and mapp v. ohio (1961) standing, the Burger Court has frequently confined those precedents or carved out exceptions. Yet, despite criticisms, on and off the bench, of the incorporation doctrine, there has been no wholesale attempt to turn the clock back to the pre-Warren era.

In school cases, while the Burger Court has rebuffed efforts to provide remedies for de facto segregation, where de jure segregation is proved the Court has been generous in permitting federal judges to fashion effective remedies (it was an opinion of Chief Justice Burger, in swann v. charlotte-mecklenburg board of education (1971) that first explicitly upheld lower courts' use of busing as a remedy in school cases). In legislative apportionment cases, the Burger Court has permitted some deviation from strict conformity to a population basis in drawing state and local government legislative districts, but the essential requirement remains that representation must be based on population.

A common complaint against the Warren Court was that it was too "activist"—that it was too quick to substitute its judgment for decisions of legislative bodies or other elected officials. In opinions written during the Burger years, it is common to find the rhetoric of judicial restraint, of calls for deference to policy judgments of legislatures and the political process generally.

Some Burger Court decisions reflect a stated preference for leaving difficult social issues to other forums than the courts. In rejecting an attack of Texas's system of financing public schools through heavy reliance on local property taxes, Justice Powell argued against judges' being too ready to interfere with "informed judgments made at the state and local levels."

Overall, however, the record of the Burger Court is one of activism. One of the hallmarks of activism is the enunciation by the Court of new rights. By that standard, no judicial decision could be more activist than the Burger Court's decision in roe v. wade (1973). There Justice Blackmun drew upon the vague contours of the fourteenth amendment ' sdueprocess clause to decide that the right to privacy (itself a right not spelled out in the Constitution) implies a woman's right to have an abortion.

In the modern Supreme Court, the Fourteenth Amendment's due process and equal protection clauses have been the most conspicuous vehicles for judicial activism. The Warren Court's favorite was the equal protection clause—the so-called new equal protection which, through strict scrutiny and other such tests, produced such decisions as Reynolds v. Sims. With the advent of the Burger Court came the renaissance of substantive due process.

An example of the Burger Court's use of substantive due process is Justice Powell's plurality opinion in moore v. east cleveland (1977). There the Court effectively extended strict scrutiny to a local ordinance impinging on the "extended family." Powell sought to confine the ambit of substantive due process by offering the "teachings of history" and the "basic values that underlie our society" as guides for judging. It is interesting to recall that, only a few years before Roe and Moore, even as activist a Justice as Douglas had been uncomfortable with using substantive due process (hence his peculiar "emanations from a penumbra" opinion in griswold v. connecticut, 1965). The Burger Court, in opinions such as Roe and Moore, openly reestablished substantive due process as a means to limit governmental power.

Another index of judicial activism in the Supreme Court is the Court's willingness to declare an act of Congress unconstitutional. Striking down a state or local action in order to enforce the Constitution or federal law is common, but invalidation of congressional actions is rarer. The Warren Court struck down, on average, barely over one federal statute per term; the Burger Court has invalidated provisions of federal law at about twice that rate. More revealing is the significance of the congressional policies overturned in Burger Court decisions. Among them have been campaign finance (buckley v. valeo, 1976), the eighteen-year-old vote in state elections (oregon v. mitchell, 1970), special bankruptcy courts (northern pipeline construction co. v. marathon pipe line co. , 1982), and the legelative veto (immigration and naturalization service v. chadha, 1983).

Yet another measure of judicial activism is the Court's oversight of the behavior of coordinate branches of the federal government, apart from the substantive results of legislative or executive actions. The Burger Court thrust itself directly into the watergate crisis, during Nixon's presidency. Even as the impeachment process was underway in Congress, the Supreme Court, bypassing the Court of Appeals, expedited its hearing of the question whether Nixon must turn over the Watergate tapes. Denying Nixon's claim of executive privilege, the Court set in motion the dénoument of the crisis, resulting in Nixon's resignation. The Burger Court has similarly been willing to pass on the ambit of Congress's proper sphere of conduct. For example, the Court's narrow view of what activity is protected by the Constitution's speech or debate clause would have surprised woodrow wilson, who placed great emphasis on Congress's role in informing the nation.

Closely related to the question of judicial activism is the breadth and scope of the Court's business—the range of issues which the Court chooses to address. Justice felix frankfurter used to warn against the Court's plunging into "political thickets" and was distressed when the Warren Court chose to treat legislative apportionment as appropriate for judicial resolution.

Reviewing the record of the Burger Court, one is struck by the new ground it has plowed. Areas that were rarely entered or went untouched altogether in the Warren years have since 1969 become a staple of the Court's docket. In the 1960s Justice arthur j. goldberg sought in vain to have the Justices debate the merits of capital punishment, but the Court would not even grant certiorari. By contrast, not only did the Burger Court, in Furman v. Georgia (1972), rule that capital statutes as then administered were unconstitutional, but also death cases have appeared on the Court's calendar with regularity. (See capital punishment cases of 1972, 1976.)

Sex discrimination is another area that, because of Burger Court decisions, has become a staple on the Justices' table. In Hoyt v. Florida (1961) the Warren Court took a quite relaxed view of claims of sex discrimination in a decision upholding a Florida law making jury service for women, but not for men, completely voluntary. By the time Warren Burger became Chief Justice, in 1969, the women's movement had become a visible aspect of the American scene, and since that time the Burger Court has fashioned a considerable body of law on women's rights.

The Burger Court has carried forward—or has been carried along with—the "judicialization" or "constitutionalization" of American life. The victories won by blacks in court in the heyday of the civil rights movement have inspired others to emulate their example. Prisoners, voters victimized by malapportionment, women, juveniles, inmates of mental institutions—virtually any group or individual failing to get results from the legislative or political process or from government bureaucracies has turned to the courts for relief. And federal judges have woven remedies for a variety of ills.

The Burger Court might have been expected to resist the process of constitutionalization. On some fronts, the Justices have slowed the process. san antonio independent school district v. rodriguez (1973) represents a victory for a hands-off approach to school finance (although it is undercut somewhat by the Court's subsequent decision in Plyler v. Doe, 1982). But such decisions seem to be only pauses in the expansion of areas in which the judiciary is willing to inquire.

The Burger Court may sometimes reach a "liberal" result, sometimes a "conservative" one. In some cases the Justices may lay a restraining hand on the equity powers of federal judges, and in some they may be more permissive. All the while, however, the scope of the Supreme Court's docket expands to include wider terrain. In constitutional litigation, there seems to be a kind of ratchet effect: once judges enter an area, they rarely depart. This pattern characterizes the Burger era as much as it does that of Warren.

Even in areas that seemed well developed in the Warren Court, the Burger Court has added new glosses. It was long thought that commercial speech fell outside the protection of the First Amendment; the Burger Court brought it inside. It was Burger Court opinions that enlarged press rights under the First Amendment to include, at least in some circumstances, a right of access to criminal trials. The jurisprudence by which government aid to sectarian schools is tested is almost entirely of Burger Court making. Most of the case law sketching out the contours of personal autonomy in such areas as abortion, birth control, and other intimate sexual and family relations dates from the Burger era. If idle hands are the devil's workshop, the Burger Court is a temple of virtue.

The contour of rights consists not only of substantive doctrine; it also includes jurisdiction and procedure. Who shall have access to the federal forum, when, and for the resolution of what rights—these have been battlegrounds in the Burger Court. If a case may be made that the Burger Court has achieved a retrenchment in rights, it may be that the case is the strongest as regards the Court's shaping of procedural devices.

Warren Court decisions reflected a mistrust in state courts as forums for the vindication of federal rights. Burger Court decisions, by contrast, are more likely to speak of the comity owed to state courts. Thus, in a line of decisions beginning with younger v. harris (1971), the Burger Court has put significant limitations on the power of federal judges to interfere with proceedings (especially criminal) in state courts. The Court also has sharply curtailed the opportunity for state prisoners to seek federal habeas corpus review of state court decisions.

Technical barriers such as standing have been used in a number of cases to prevent plaintiffs' access to federal courts. For example, in Warth v. Selden (1976) black residents of Rochester were denied standing to challenge exclusionary zoning in the city's suburbs. Similarly, in simon v. eastern kentucky welfare rights organization (1976) poor residents of Appalachia were held not to have standing to challenge federal tax advantages granted to private hospitals that refused to serve the indigent.

By no means, however, are Burger Court decisions invariable in restricting access to federal courts or in limiting remedies for the violation of federal law. Some of the Court's interpretations of section 1983, title 42, united states code (a civil rights statute dating back to 1871) have made that statute a veritable font of litigation. The Warren Court had ruled, in 1961, that Congress, in enacting section 1983, had not intended that municipalities be among the "persons" subject to suit under the statute; in 1978, the Burger Court undertook a "fresh analysis" of the statute and concluded that municipalities are subject to suit thereunder.

Going further, the Court ruled, in 1980, that municipalities sued under section 1983 may not plead as a defense that the governmental official who was involved in the alleged wrong had acted in "good faith"; the majority disregarded the four dissenters' complaint that "ruinous judgments under the statute could imperil local governments." And in another 1980 decision the Court held that plaintiffs could use section 1983 to redress claims based on federal law generally, thus overturning a long-standing assumption that section 1983's reference to federal "laws" was to equal rights legislation. The Burger Court's section 1983 rulings have been a major factor in the "litigation explosion" which in recent years has been the subject of so much legal and popular commentary.

The reach of federal courts' equity powers has been another hotly debated issue in the Burger Court. class actions seeking to reform practices in schools, prisons, jails, and other public institutions have made institutionallitigation a commonplace. Such suits go far beyond the judge's declaring that a right has been violated; they draw the judge into ongoing supervision of state or local institutions (recalling the quip that in the 1960s federal district judge Frank Johnson was the real governor of Alabama). Institutional litigation in federal courts raises serious questions about federalism and often blurs the line between adjudication, legislation, and administration.

Some Burger Court decisions have attempted to curb federal judges' equity power in institutional cases. For example, in rizzo v. goode (1976) Justice Rehnquist, for the majority, reversed a lower court's order to the Philadelphia police department to institute reforms responding to allegations of police brutality; Rehnquist admonished the judge to refrain from interfering in the affairs of local government. Similarly, in prison cases, the Burger Court has emphasized the importance of federal judges' deference to state prison officials' judgment about questions of prison security and administration.

In important respects, however, the Burger Court has done little to place notable limits on federal courts' equity powers. Especially is this true in school desegregation cases. A wide range of remedies has been approved, including busing, redrawing of attendance zones, and other devices. Although the Court has maintained the distinction between de facto and de jure segregation (thus requiring evidence of purposeful segregation as part of a plaintiff's prima facie case), decisions such as those from Columbus and Dayton (both in 1979) show great deference to findings of lower courts used to support remedial orders against local school districts.

Painting a coherent portrait of the Burger Court is no easy task. An effort to describe the Court in terms of general themes, such as the Justices' attitude to judicial activism, founders on conflicting remarks in the Court's opinions. Likewise, an attempt to generalize about the Burger Court's behavior in any given area encounters difficulties.

Consider, for example, the expectation—understandable in light of President Nixon's explicit concern about the Warren Court's rulings in criminal justice cases—that the Burger Court would be a "law and order" tribunal. In the early years of the Burger Court (until about 1976), the Court, especially in its rulings on police practices, seemed bent on undermining the protections accorded in decisions of the Warren years. The majority showed their attitude to the exclusionary rule by referring to it as a "judicially created remedy," one whose benefits were to be balanced against its costs (such as to the functioning of a grand jury). In the late 1970s, the Court seemed more sympathetic to Miranda and to other devices meant to limit police practices. But in the early 1980s, especially in search and seizure cases, the Court seemed once again markedly sympathetic to law enforcement.

Or consider the Court's attitudes to federalism. In some decisions, the Burger Court has seemed sympathetic to the interests of states and localities. In limiting state prisoners' access to federal writs of habeas corpus, the Court shows respect for state courts. In rebuffing attacks on inequalities in the financing of a state's public schools, the Court gives breathing room to local judgments about running those schools. In limiting federal court intervention in prison affairs, the Court gives scope for state judgments about how to run a prison.

Yet many Burger Court decisions are decidedly adverse to state and local governments' interests. The Court's section 1983 rulings have exposed municipalities to expensive damage awards. The Burger Court has been more active than the Warren Court in using the dormant commerce clause to restrict state laws and regulations found to impinge upon national interests. And in the highly controversial decision of garcia v. san antonio metropolitan transit authority (1985) the Court said that, if the states have Tenth Amendment concerns about acts of Congress, they should seek relief from Congress, not from the courts (in so ruling, the Court in Garcia overturned national league of cities v. usery, 1976, itself a Burger Court decision).

How does one account for such a mixed record, replete with conflicting signals about basic jurisprudential values? The temperament and habits of the Justices of the Burger Court play a part. Pundits often imagine the Justices coming to the Court's conference table with "shopping lists," looking for cases on which to hang doctrinal innovations. For most (although not necessarily all) of the Justices, this picture is not accurate. By and large, the Justices tend to take the cases as they come. This tendency is reinforced by the Court's workload pressures. Far more cases come to the Burger Court than came to the Warren Court. Complaints by the Chief Justice about the burden thus placed on the Court are frequent, and in 1975 it was reported that at least five Justices had gone on record as favoring the concept of a National Court of Appeals to ease the Supreme Court's workload.

The Burger years on the Court have lacked the larger-than-life figures of the Warren era, Justices like hugo l. black and Felix Frankfurter, around whom issues tended to polarize. Those were judges who framed grand designs, a jurisprudence of judging. Through their fully evolved doctrines, and their arm-twisting, they put pressure on their colleagues to think about cases in doctrinal terms. Since the departure of the great ideologues, the Justices have been under less pressure to fit individual cases into doctrinal tableaux. Ad hoc results become the order of the day.

The Burger Court has been a somewhat less ideological bench than was the Warren Court. Many of the Court's most important decisions have turned upon the vote of the centrists on the bench. It is not unusual to find, especially in 5–4 decisions, that Justice Powell has cast the deciding vote. Powell came to the bench inclined to think in the pragmatic way of the practicing lawyer; as a Justice he soon came to be identified with "balancing" competing interests to arrive at a decision. The Burger Court's pragmatism, its tendency to gravitate to the center, blurs ideological lines and makes its jurisprudence often seem to lack any unifying theme or principle.

A Burger Court decision—more often, a line of decisions—often has something for everyone. In Roe v. Wade the Court upheld the right of a woman to make and effectuate a decision to have an abortion. Yet, while invalidating state laws found to burden the abortion decision directly, the Court has permitted state and federal governments to deny funding for even therapeutic abortions while funding other medical procedures. In regents of the university of california v. bakke (1978) a majority of the Justices ruled against racial quotas in a state university's admissions process, but a university, consistent with Bakke, may use race as a factor among other factors in the admissions process.

Burger Court decisions show a distaste for categorical values. The Warren Court's fondness for prophylactic rules, such as Miranda or the Fourth Amendment exclusionary rule, is not echoed in the Burger Court. The Burger bench may not have jettisoned those rules outright, but most Justices of this era show a preference for fact-oriented adjudication rather than for sweeping formulae.

Burger Court opinions are less likely than those of the Warren Court to ring with moral imperatives. Even when resolving so fundamental a controversy as that over abortion, a Burger Court opinion is apt to resemble a legislative committee report more nearly than a tract in political theory. A comparison of such Warren Court opinions as Brown v. Board of Education and Reynolds v. Sims and a Burger Court opinion such as Roe v. Wade is instructive. Warren Court opinions often read as if their authors intended them to have tutorial value (Justice Goldberg once called the Supreme Court "the nation's schoolmaster"); Burger Court opinions are more likely to read like an exercise in problem solving.

For most of its existence, the Burger Court has been characterized by a lack of cohesive voting blocs. For much of its history, the Burger years have seen a 2–5–2 voting pattern—Burger and Rehnquist in one wing, Brennan and Marshall in the other wing, the remaining five Justices tending to take more central ground. Justice Stewart's replacement by Justice O'Connor (a more conservative Justice) tended to reinforce the Burger-Rehnquist wing, while Justice Stevens gravitated more and more to the Brennan-Marshall camp. Even so, the Burger Court was a long way from the sharp ideological alignments of the Warren years.

The Court's personalities and dynamics aside, the nature of the issues coming before the Burger Court help account for the mixed character of the Court's record. The Warren Court is well remembered for decisions laying down broad principles; Brown, Mapp, Miranda, and Reynolds are examples. The task of implementing much of what the Warren Court began fell to the Burger Court. Implementation, by its nature, draws courts into closer judgment calls. It is one thing to lay down the principle that public schools should not be segregated by race, but quite another to pick one's way through the thicket of de facto-de jure distinctions, interdistrict remedies, and shifting demographics. Had the Warren Court survived into the 1970s, it might have found implementation as difficult and splintering as has the Burger Court.

If the Warren Court embodied the heritage of progressivism and the optimistic expectations of post-World War II America, the Burger years parallel a period of doubt and uncertainty about solutions to social problems in the years after the Great Society, the vietnam war, and Watergate. In a time when the American people might have less confidence in government's capacity in other spheres, the Supreme Court might well intuitively be less bold in imposing its own solutions. At the same time, there appeared, in the Burger years, to be no turning back the clock on the expectations of lawyers and laity alike as to the place of an activist judiciary in public life. Debate over the proper role of the judiciary in a democracy is not insulated from debate over the role of government generally in a society aspiring to ordered liberty. Judgments about the record of the Burger Court, therefore, tend to mirror contemporary American ideals and values.

A. E. Dick Howard
(1986)

Bibliography

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