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History of the Burger Court

The Burger Court marks the tenure of Warren E. Burger as Chief Justice of the United States. Chief Justice Burger replaced Earl Warren in 1969 and retired from the bench in 1986 (following the 1985 October Term).

Electoral Mandate

Richard Nixon campaigned for president in 1968 on his opposition to the Warren Court, which was known for its many decisions expanding civil rights and civil liberties, including Brown v. Board of Education (1954), Miranda v. Arizona (1966), Mapp v. Ohio (1961), and Engel v. Vitale (1962). Then-candidate Nixon voiced opposition to judicial activism and called for a return to strict construction of the Constitution. As Henry Abraham (1992, 298) put it, Nixon promised to seek Justices "who would see 'their duty as interpreting law and not making law', who would follow a 'properly conservative' course of judging that would, in particular, protect society's 'peace forces' against the 'criminal forces'; who would 'see themselves as caretakers of the Constitution and servants of the people, not superlegislators with a fee hand to impose their social and political viewpoints upon the American People.'"

President Nixon had a vacancy on the Supreme Court awaiting him. Chief Justice Warren had submitted his resignation to then-President Lyndon Johnson in 1968, but Johnson's nominee for chief Justice, Abe Fortas, faced opposition in the Senate and was defeated through a filibuster. The opportunity to replace Chief Justice Warren then fell to President Johnson's successor. In addition to his appointment of Warren Burger as chief Justice, President Nixon appointed three associate Justices during his tenure as president. In 1970, he appointed Harry Blackmun, and then appointed Lewis Powell and William Rehnquist in 1971. These appointments shifted the Court's ideological composition to the right.

Major Decisions

Conservative supporters of President Nixon hoped that these appointments and the rightward shift on the Supreme Court would enable the high court to reverse some of the controversial decisions reached by the Warren Court. First, the Warren Court's decisions in criminal procedure had given new breadth to the rights of the accused. Among the more disputed decisions was Mapp v. Ohio (1961), which held that illegally seized evidence could not be used in proceedings against an accused. Although some scholars characterize the Burger Court's views on criminal procedure as the "counter-revolution that wasn't," the Burger Court did issue important decisions that eroded the Warren Court decisions. One such example is United States v. Leon (1984) where the Burger Court recognized an exception to Mapp's exclusionary rule for evidenced seized on the basis of a mistakenly issued search warrant (otherwise known as the good-faith exception).

In the area of religious liberty, the Burger Court addressed Establishment Clause issues raised during the Warren Court. In Engel v. Vitale (1962), the Court ruled that government-written prayers could not be used in public schools. The Burger Court heard several cases implicating the Establishment Clause of the First Amendment. In one of these, Lemon v. Kurtzman (1971), the Court established a new standard for evaluating the constitutionality of government assistance to religion. In Wallace v. Jaffree (1985), a law was challenged that permitted a moment of silence and other regular religious prayer services in public schools. The Burger Court struck down this Alabama state law ruling that the law's intent was to endorse religion. Outside of the schoolhouse, the Burger Court heard a challenge to the placement of crèches on public property. The Court ruled that it was permissible if it evidenced a legitimate secular purpose, which was the case here.

In the realm of civil rights, one of the Warren Court's landmark decisions was Brown v. Board of Education (1954), which struck down segregated schools as unconstitutional. The implementation of that decision had foundered in the following years. The Court addressed the powers of federal courts to shape remedies in Swann v. Charlotte-Mecklenburg Board of Education (1971), ruling that judicial powers are broad when directed at schools that had violated earlier mandates. The question, however, of whether government could implement affirmative action policies to reverse the effects of past discrimination was addressed in Regents of the University of California v. Bakke (1978).

The Burger Court advanced the Warren Court's privacy decisions to abortion. In 1965, the Warren Court recognized a constitutional right to privacy in Griswold v. Connecticut. In Griswold, the Court struck down a state law that banned birth control counseling or medical treatment for married couples. In Roe v. Wade (1973), the Burger Court extended the right to privacy to abortion. That decision was subjected to legislative efforts to restrict its applicability, including limits on federal funding. The Burger Court issued several decisions to strike down these restrictions, although it upheld the funding restriction in Harris v. McRae (1980).

The Burger Court, in retrospect, was a period of transition from the more liberal Warren Court to the more conservative Rehnquist Court.