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Warren Burger - History

Warren Burger - History

Warren Burger

1907- 1995

Supreme Court Justice

Chief Justice of the US Supreme Court Warren Burger was born in St. Paul, Minnesota on September 17, 1907 , the son of immigrant parents. He studied at the University of Minnesota and the St. Paul College of Law (later the Mitchell College of Law). After spending 20 years in private practice as a lawyer, he was appointed Assistant Attorney General in charge of the civil division of the Justice Department.
Burger first came into the public eye when he supported the federal prosecution of John Peters for disloyalty, despite the US solicitor general's refusal to prosecute. In 1953, he became Assistant Attorney General for the United States, and was appointed a federal judge of the US Court of Appeals for the District of Columbia in 1955.
President Nixon appointed Burger, an active Republican, Chief Justice of the US Supreme Court in 1969. Although Burger's court was more conservative than the previous Warren Court, it was judicially active. Two of the most famous and controversial decisions of the Burger Court were the Roe v. Wade abortion decision and the University of California v. Bakke affirmative action decision. In 1986, Burger resigned from his post and became head of the US Bicentennial Commission.


Warren E. Burger

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Warren E. Burger, in full Warren Earl Burger, (born Sept. 17, 1907, St. Paul, Minn., U.S.—died June 25, 1995, Washington, D.C.), 15th chief justice of the United States (1969–86).

After graduating with honours from St. Paul (now William Mitchell) College of Law in 1931, Burger joined a prominent St. Paul law firm and gradually became active in Republican Party politics. In 1953 he was appointed an assistant U.S. attorney general, and in 1955 he was nominated by President Dwight D. Eisenhower to the U.S. Court of Appeals for the District of Columbia. Burger’s generally conservative approach during his 13-year service (1956–69) on the nation’s second highest court commended him to President Richard M. Nixon, who in 1969 named Burger to succeed Earl Warren as chief justice of the Supreme Court. He was quickly confirmed and in June 1969 was sworn in as the nation’s chief justice.

Contrary to some popular expectations, Burger and his three fellow Nixon-appointed justices did not try to reverse the tide of activist decision making on civil-rights issues and criminal law that was the Warren court’s chief legacy. The court upheld the 1966 Miranda decision, which required that a criminal suspect under arrest be informed of his rights, and the court also upheld busing as a permissible means of racially desegregating public schools and the use of racial quotas in the distribution of federal grants and contracts to minorities. Under Burger’s leadership the court did dilute several minor Warren-era decisions protecting the rights of criminal defendants, but the core of the Warren court’s legal precedents in this and other fields survived almost untouched. Burger voted with the majority in the court’s landmark 1973 decision ( Roe v. Wade) that established women’s constitutional right to have abortions.

Burger himself took a pragmatic and accommodating stance toward controversial legal issues, and his opinions were not particularly noted either for their intellectual consistency or for their comprehensive and systematic application of legal principles. He instead became deeply involved in the administrative functions of his office, and he worked to improve the efficiency of the entire judicial system.

Burger retired from the Supreme Court in 1986 to devote himself full-time to the chairmanship of the commission planning the bicentennial celebration of the U.S. constitution (1987). He was awarded the Presidential Medal of Freedom in 1988.

This article was most recently revised and updated by Michael Levy, Executive Editor.


Warren Burger - History

In our Liberty Update this week, we highlight the latest illegal leak of thousands of supposedly confidential Internal Revenue Service (IRS) taxpayer returns spanning over 15 years, confirming that the partisan and power-hungry IRS simply cannot be trusted to safeguard our sensitive records, let alone to begin collecting sensitive private information from nonprofit organizations on donors who contribute to them in violation of the First Amendment.

Getting to the substance of the ProPublica/IRS leaked documents themselves, former Senator Phil Gramm and U.S. Policy Metrics partner Mike Solon explain in The Wall Street Journal how there's nothing scandalous in the least in what they reveal:

ProPublica’s 'blockbuster' story showing that the wealthy 'pay income taxes that are only&hellip[more]

Warren Burger Meme Bungles 2nd Amendment
By Timothy H. Lee
Thursday, September 26 2019

A fatuous new meme has gained sudden social media popularity among gun-grabbers in their ongoing campaign to render the Second Amendment meaningless.

The meme features a portrait of former Chief Justice of the United States Warren Burger, alongside a 1990 quote that somehow sprang to life after thirty years of dormancy.

The backstory is that Burger wrote a pop interest piece for Parade Magazine on January 14, 1990, employing surprisingly intemperate language to air his personal opinion about the Second Amendment:

The gun lobby&rsquos interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies &ndash the militia &ndash would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

That reflects poorly upon an otherwise respectable retired Chief Justice, and it&rsquos intellectually defective for multiple reasons.

First, it must be noted that Burger had retired four years earlier, after serving on the Supreme Court since his nomination by President Richard Nixon in 1969. At no point during his tenure did the Supreme Court address the question of whether the Second Amendment confers an individual or collective right. That wouldn&rsquot occur for another 18 years, when the Supreme Court ruled in the seminal District of Columbia v. Heller case.

Second, Burger attempts a curiously defective textual argument when he references &ldquothe very language of the Second Amendment&rdquo in his piece. Yet he conspicuously ignores the most pivotal &ldquolanguage of the Second Amendment,&rdquo which specifies &ldquothe right of the people to keep and bear Arms.&rdquo

Here&rsquos why that&rsquos a critical error.

The term &ldquothe people&rdquo is employed multiple times in the text of the Bill of Rights, and each time it protects an individual right, not some mythical collective right. For example, it&rsquos facially absurd to suggest that the First Amendment somehow protects the rights of a collective or government entity, or that the Fourth Amendment protects some collective or government entity against unreasonable searches and seizures. Yet Burger and other Second Amendment restrictionists ask us to accept that the Second Amendment somehow stands unique as a sole exception?

Indeed, the Tenth Amendment specifically and separately distinguishes between states and &ldquothe people&rdquo in its text when it references &ldquoto the States respectively, or to the people.&rdquo Thus, the Framers were perfectly capable of referring to state authorities when they so chose, and could have done so in the Second Amendment if that&rsquos what they intended.

That&rsquos not Burger&rsquos only error in interpreting &ldquothe very language of the Second Amendment,&rdquo however. Had the Supreme Court actually taken a case interpreting the Second Amendment as the Court did in 2008, he might&rsquove had the opportunity to understand as the Heller majority did that the term &ldquomilitia&rdquo at the time of ratification referred to all able-bodied men, not some hypothetical &ldquostate army&rdquo that he references.

Burger then descends to straw man argumentation when he asserts that the Second Amendment wasn&rsquot &ldquointended to guarantee every citizen an unfettered right to avoid any kind of weapon he or she desires.&rdquo

Which pro-Second Amendment scholar has ever advanced such a claim?

As the Heller majority explicitly stated, the fact that the Second Amendment protects an individual right to keep and bear arms doesn&rsquot mean that no restrictions are permissible. To illustrate by analogy, the First Amendment protects an individual right to free speech, but that doesn&rsquot mean that defamation laws are unconstitutional. Similarly, the Fourth Amendment protects an individual right against unreasonable searches and seizures, but that doesn&rsquot mean that warrant exceptions are unconstitutional.

Accordingly, the fact that some restrictions withstand constitutional scrutiny doesn&rsquot in any way undermine the fact that the Second Amendment protects an individual right, not some hypothetical collective right.

Finally, there&rsquos an amusing paradox and glaring intellectual inconsistency among Second Amendment restrictionists who assert the discredited &ldquocollective right&rdquo argument that Burger stated.

Namely, on the one hand they seek to outlaw so-called &ldquoassault&rdquo weapons and &ldquomilitary-grade&rdquo firearms. Yet on the other hand they claim that the Second Amendment was ratified to protect only &ldquostate armies&rdquo in Burger&rsquos words. But taking that argument to its logical end, &ldquoassault&rdquo weapons and &ldquomilitary-grade&rdquo firearms would be precisely the ones most protected by the Second Amendment, since they&rsquod be precisely the types of weapons useful to those hypothetical &ldquostate armies.&rdquo

They&rsquove got to pick one argument or the other.

Instead of reviving obscure, decades-old quotations from a retired Chief Justice who never actually participated in a significant Second Amendment case during his tenure, anyone engaging in the Second Amendment debate should simply read the Heller majority opinion to understand the constitutional and historical realities.

It&rsquos unfortunate that Burger chose to opine in such a careless, conclusory manner in an offhand pop-culture Parade Magazine piece. But fortunately, a more informed opinion prevailed when the Supreme Court finally settled the matter in Heller.


Tracing The 'Rise Of The Judicial Right' To Warren Burger's Supreme Court

Burger served as chief justice of the Supreme Court from 1969 until 1986. Linda Greenhouse, author of The Burger Court, says those years helped establish the court's conservative legal foundation.

by Michael J. Graetz and Linda Greenhouse

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This is FRESH AIR. I'm Terry Gross. One of the things at stake in this presidential election is the future direction of the Supreme Court. Since the death of Justice Scalia, the court has had only eight justices and has sometimes been stalemated 4-4. Assuming Congress continues to block President Obama's appointment of Merrick Garland, the next president will have at least one justice to appoint to the court, and that is likely to tip the balance.

You can see the influence one president can have on the court by looking at Richard Nixon who appointed four justices. His first appointment, Warren Burger, in 1969, was also chosen by Nixon to be the chief justice. Nixon's final appointment, William Rehnquist, became the next chief justice after Burger retired in 1986.

The Burger Court has often been described as playing a transitional role between the liberal Warren Court and the conservative Rehnquist Court. But my guest Linda Greenhouse says that the Burger Court played a crucial role in establishing the conservative legal foundation for the even more conservative courts that followed.

She co-wrote the new book, "The Burger Court And The Rise Of The Judicial Right" with Michael Graetz, a law professor at Columbia Law School and Yale University. Greenhouse covered the Supreme Court for The New York Times for nearly 30 years and now writes a biweekly column for The Times website. She also teaches at Yale Law School.

Linda Greenhouse, welcome back to FRESH AIR. Why did you want to look at the Burger Court?

LINDA GREENHOUSE: The book, really, Terry, is a - is an exercise in historical reconstruction. And what came jumping out at us is that this era of Supreme Court history is quite profoundly misunderstood. It's kind of written off in the legal academy and, I think, in the popular mind as a, quote, "transitional phase of court history" when, quote, "nothing really happened" between the very activist Warren Court and a very conservative Rehnquist Court.

And we just started digging into it and thought, you know, there was a lot going on there, and it's worth a book.

GROSS: Why is the Burger Court relevant today?

GREENHOUSE: A couple of reasons - first, the resonance of what's going on these days in our politics. So Richard Nixon ran against the Supreme Court, ran very successfully against the Warren Court as a court that coddled criminals and had ushered in the crime wave that was then very salient in the country. He got elected, of course, and within three years, he had four vacancies. And he recreated - he created a new Supreme Court and obviously that resonates with our politics.

But to go back to what the Burger Court actually accomplished, there were a number of major cases that either set out new principles or prevented new principles from taking hold. And those cases are still almost all still good law and continue to define the constitutional landscape on which we live today.

GROSS: So you say that the Warren Court, you know, is perceived as a very liberal court that was succeeded by the Burger Court, which was kind of, you know, neither here nor there and then the Rehnquist court, which was very conservative. But you say that the Warren Court painted its liberal decisions in broad strokes, but didn't fill in the blanks. And it was up to the Burger Court to then hear the cases that would fill in the blanks and that the Burger Court filled in those blanks usually pretty conservatively.

And an example that you give of that is the really important decision, Brown v. Board of Education that - where the court said that the schools have to be desegregated, that, you know, separate but equal isn't equal. But the Burger Court had to define, well, how do we go about desegregating the schools? And how did the Burger Court set limits on bussing and spending in schools?

GREENHOUSE: Right, I mean, your observation is completely correct. Any court that followed the Warren Court would have had to fill in those blanks because between 1954, when the Warren Court decided Brown against Board of Education and 1969, when Chief Justice Warren retired, there had been precious little desegregation throughout the South and there was growing segregation, not by law, but by housing patterns in the North. So what to do about that? What's the role of courts? What kind of remedy? These were open questions.

Burger Court comes in, upholds a busing order in the South, in the Charlotte-Mecklenburg case. That was very interesting - initial cut at the problem. But when the question moves to the North to school systems that were functionally segregated because of housing patterns, inner cities ringed by white suburbs, that's where the Burger Court drew the line in a case from Detroit, Milliken against Bradley. Five to 4 said, no, the busing order may not cross district lines. And that's another one of those cases like the school finance case that really gave us a legacy that we've been struggling with ever since.

GROSS: Would you describe the school finance case that you just referred to?

GREENHOUSE: That was a challenge to the way school districts were financed in Texas - happened to be in Texas, but it was all over the country where school - the school budgets were based on the wealth that could be raised from the local property tax. And that led to, of course, great disparities, great inequalities of wealth, led to inequalities of resources available to the school systems.

So the question was, what does the 14th Amendment Guarantee of Equal Protection have to say about that? And the Burger Court's answer was really nothing. So that left the disparities in school financing and resources in place.

GROSS: So in continuing with one of the themes of your book, which is that the Warren Court was a very liberal court, but its decisions were kind of open-ended and it was up to the Burger Court to kind of fill in how those blanks would be filled in in subsequent decisions. So let's look at an example of that, which is crime.

Chief Justice Warren's biggest opponents criticized him among other things for the court's Miranda ruling that, you know, someone who is arrested has to be read their rights before they're questioned. So you say it was up to the Burger Court to define how that would actually work out. So what did the - how did the Burger Court fill in the blanks?

GREENHOUSE: So the Miranda case is a very good example of why the Burger Court, in our view - my view and that of my co-author Michael Graetz - has been so misunderstood because you're absolutely right. The Miranda ruling by the Warren Court was very controversial. And by the end of the Burger Court, it was still on the books. So people say, well, you know, Miranda, very controversial, liberal, pro-defendant decision still in the books and so the Burger Court didn't really do anything about that.

What we show by discussing a series of Miranda-related decisions by the Burger Court, is that by the end of the Burger Court, the Miranda ruling was really left standing, yes, but hollowed out from the inside - you know, a bunch of termites had been let in there. And so there were many situations where a criminal suspect was - would be deemed to have waived his Miranda rights. Questioning could proceed despite him not having received his Miranda rights.

So by the end of the period - and this is continued through the Rehnquist Court and into today in the Burger Court - the Miranda decision itself is sort of a tattered remnant of what, I think, it was in the minds of the Warren Court justices who came up with that way of protecting the criminal suspect's rights against compelled self-incrimination.

GROSS: If you're just joining us, my guest is Linda Greenhouse, co-author of the new book, "The Burger Court And The Rise Of The Judicial Right." She covered the Supreme Court for The New York Times for nearly 30 years. Let's take a short break, then we'll talk more. This is FRESH AIR.

GROSS: This is FRESH AIR. And if you're just joining us, my guest is Linda Greenhouse, co-author of the new book "The Burger Court And The Rise Of The Judicial Right." And Chief Justice Burger was appointed by Richard Nixon. He resigned from the court in 1986. And Linda Greenhouse was The New York Times Supreme Court correspondent for nearly 30 years and now writes a biweekly column for The Times website. She teaches at Yale Law School.

So in continuing with the theme of the Burger Court and race and ethnicity, let's look at affirmative action. What did the Burger Court have to say about affirmative action, and how does that relate to the affirmative action case that came before the Supreme Court this term?

GREENHOUSE: It's really quite an amazing and surprising story, Terry. So in 1978, the Burger Court was faced with a challenge to affirmative action in higher education admissions. This was a medical - a state medical school in California. The University of California, Davis had a - set aside an actual quota for non-white applicants to the medical school. This was challenged by a man named Allan Bakke. The court was very divided - four on one side, four on the other side. In the middle was Justice Lewis Powell, one of the most important and influential members of the Burger Court. And he embraced the notion that diversity is the watchword in university admissions.

If a university feels that its interests and more generally society's interests are served by having a diverse class, you can't have a quota but you can take race into account in the admissions program. This kind of settled the waters for a few years. But there was a lot of turmoil, a lot of political pushback, brought us a challenge to affirmative action at the University of Michigan in the Rehnquist Court. It was narrowly upheld there. And the University of Texas affirmative action admissions system was challenged multiple times, reached the Supreme Court this past term for the second time.

Most people - myself included - expected some kind of whack to be taken out of affirmative action by the current Supreme Court. But quite surprisingly, in an opinion by Justice Anthony Kennedy, the court upheld the University of Texas system, citing the Bakke case, citing the Bakke rationale for diversity. And so kind of amazingly a generation later that's where things still stand.

GROSS: One of the things that makes this year's decision interesting is that Scalia, who most certainly would have voted against the University of Texas program, he died before the decision was handed down. And Elena Kagan had to recuse herself 'cause she was solicitor general when as - when the case was making its way up through the courts. And Kennedy was the swing vote, so you didn't expect him to go the way he did?

GREENHOUSE: No, based on his earlier dissenting opinion, for instance, in the Michigan case back in 2003 and his opinion in the earlier round of this University of Texas case where he wrote a majority opinion that vacated the lower court opinion that upheld the Texas plan. You know, I think people figured, well, it's not exactly clear how far the court's going to go, but it's not going to accept the plan that it first cast very strong doubts about.

I might point out that had Justice Scalia been alive to vote the other way, it would have been a 4-4 tie because, as you mention, Elena Kagan was recused. So only - when Scalia was alive, only eight justices would have been sitting on the case. If they were sitting on the case when the case was argued back in the winter before Justice Scalia died, that 4-4 tie would have automatically affirmed the lower court, the Fifth Circuit, which actually had upheld the plan.

So in a way, Justice Scalia's death didn't change the outcome, but it enabled Justice Kennedy to write a pretty strong opinion embracing the notion of diversity and upholding this very long-challenged plan in Texas.

GROSS: So one of the Roberts Court's most momentous decisions is Citizens United, which basically said that corporations have First Amendment rights like people do and that they can spend unlimited amount of money in political campaigns because money is the equivalent of speech. You say the precedent for that goes to the Burger Court. And in fact, the Citizens United decision quotes a decision from the Burger Court. What was that decision?

GREENHOUSE: So this was a case in the late 1970s called Bellotti against First National Bank of Boston. And this was the first time that the court had said, yes, corporations have a First Amendment right to spend money in politics. Now, as - it was a far cry from what eventually became Citizens United. But in 2010, when the Roberts Court came down with Citizens United and people were shocked at the notion that the First Amendment enabled corporations to spend money in politics, this was really not new. It was - it was new in the context in which Citizens United put it.

I don't want to say that there was anything inevitable about the old case, the Bank of Boston case, that led inevitably to Citizens United, which was a 5-4 very closely fought opinion. But the framework, the First Amendment framework, was established in the Burger Court along with this sort of empowered First Amendment that sustains commercial speech, advertising of various kinds that we're inundated with today.

GROSS: Right 'cause advertising counted as free speech in a Burger Court decision.

GREENHOUSE: Yes. I mean, before the Burger court, advertising - that is to say speech that does nothing more than propose a commercial transaction - that's the kind of jargon for that - was not deemed to have any First Amendment protection. And the Burger court changed that.

It's very interesting that the one justice who dissented from the real - the first real initiative of the Burger court in this area was William Rehnquist, very conservative then associate justice who then succeeded Chief Justice Burger as chief justice. He saw around the corner, and he said, you know, if we give First Amendment rights to advertisers, if we bring commercial speech within the First Amendment, who knows where that's going to lead? And where it's led in the Roberts court is really an empowered First Amendment that has been, one might say - I have said - hijacked as a tool of deregulation in the power that it gives to corporations. So it's a pretty interesting trajectory.

GROSS: You describe the Burger court as very pro-business. And perhaps the most pro-business member of the court was Nixon appointee Lewis Powell. And just a couple of months before he was appointed to the Supreme Court, he sent a memo - a now famous memo - to the U.S. Chamber of Commerce. And this memo was commissioned - he was commissioned to write this by the chamber's education director. The memo was titled "Attack On The American Free Enterprise System." What are some of the most important parts of that memo?

GREENHOUSE: So Lewis Powell, who had never been a judge - he was a big-time lawyer in Richmond, Va., he'd been president of the American Bar Association, in his law practice represented a big swath of corporate America - wrote a memo that said, you know, businesses have basically ceded the ground to the liberals. We have the American Civil Liberties Union bringing all kinds of lawsuits. We have the civil rights community bringing all kinds of lawsuits. Who's speaking up in court for business? And you - the Chamber of Commerce - you have an obligation to start building some infrastructure from which corporate America can be defended, can defend its own interests in the courts.

And the Chamber took his advice and built up something called the National Chamber Litigation Center to sort of aggregate legal talent in bringing cases and defending cases. A few months after that, as you said, Richard Nixon appointed Lewis Powell to the Supreme Court.

GROSS: And in that memo, Powell wrote that the judiciary may be the most important instrument for social, economic and political change, and then he became a Supreme Court justice. So did he use his power in a very pro-business way?

GREENHOUSE: Well, of course, his power only resided in getting four people to agree with him. That's the interesting thing about the Supreme Court. But he commanded a lot of respect within the court. Yes, I think it's fair to say - I want to be fair to Lewis Powell, who I have a good deal of regard for - but he really did have a vision that the country would be better off if business had a voice in public affairs within the courts and could spend money accordingly. And he was able to persuade his colleagues - not in every case, but - to go along with him.

GROSS: You know, the Burger court had the type of split that we're seeing today in the Supreme Court. Burger was - I guess you would have called it then a constructionist. He believed in interpreting the Constitution as closely to the interpretation of the Founders as possible.

You quote excerpts of a speech that Burger gate in 1976 during the bicentennial and an excerpt of a speech that Thurgood Marshall, the first African-American Supreme Court justice, gave that same day. Burger said, if we remain on course, keeping faith with the vision of the Founders with freedom under ordered liberty, we will have done our part to see that the great new idea of government by consent, by we the people, remains in place.

Thurgood Marshall says, the focus of the celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the more perfect union it is that we now enjoy. Then he described how the government framers devised a constitution defective from the start, requiring several amendments, a civil war and momentous social transformation. Those quotes seem so relevant today.

GREENHOUSE: Totally. And those quotes define two ways of looking at the Constitution, at American history, at the role of the courts. You know, the kind of really self-satisfied, almost platitudinous remarks that Warren Burger, who by then had retired from the court - Thurgood Marshall was still on the court - his remarks in Philadelphia - and Thurgood Marshall just reminding us that it took us a battle to get to where we are, and we've got to keep fighting that battle.

GROSS: My guest is Linda Greenhouse. She co-wrote the new book "The Burger Court And The Rise Of The Judicial Right." After a break, we'll talk about today's Supreme Court after the death of Justice Scalia and how the next president might influence the future direction of the court. I'm Terry Gross, and this is FRESH AIR.

GROSS: This is FRESH AIR. I'm Terry Gross, back with Linda Greenhouse. She co-wrote a new book about how the Supreme Court under Chief Justice Warren Burger moved the court to the right, establishing the conservative legal foundation for the more conservative courts that followed. Burger was appointed by President Nixon in 1969 and served as chief justice until 1986. Greenhouse's book is called "The Burger Court And The Rise Of The Judicial Right." She covered the Supreme Court for The New York Times for nearly 30 years.

Now, your book is about how the Burger court pushed the Supreme Court to the right - and thereby pushing the country to the right. But it was the Burger court that legalized abortion. So that doesn't really fit with the narrative.

GREENHOUSE: That's right. But I will explain. What we mean by that is that yes, of course, Roe against Wade was a Burger court decision in 1973. The vote in Roe was 7-2. Three of Nixon's four appointees, all except Justice Rehnquist, joined in that 7-2 majority, including Chief Justice Burger.

So what does that tell us? It tells us that the political polarity around abortion had not yet emerged. The members of the Burger court - all men in those days - in 1973 - really were channeling the view that was very widely held, at least based on the Gallup poll that came down a few months before the Roe decision came down.

Every demographic group in the country believed that it was time to change the old 19th century regime of criminal abortion laws - the public health community, even a majority of Catholics and a strong majority of Republicans. So in announcing the right to abortion in Roe against Wade, the Burger court really didn't think it was doing anything particularly radical.

I'm totally convinced of that. Of course, the next case that comes down - next big case that faces them is - OK, the federal government, through Medicaid, pays for medical services - many medical services - for poor women. Does it have to also pay for abortions for women who can't afford them?

An enactment called the Hyde Amendment had come into Congress. That may be familiar to listeners because it's still the law today. We still have the Hyde Amendment that forbids the federal government from spending money to subsidize abortions for poor women. So there was a challenge, of course, to the Hyde Amendment. And the case was assigned to Justice Potter Stewart.

We haven't mentioned him yet, but he was a stalwart member of the Burger court. He'd been appointed by President Eisenhower. The vote is 5-4. It comes to Justice Stewart. And he writes an opinion that says, you know, the fact that women - some women - don't have the money to pay for abortions and thereby can't get an abortion is not the fault of the government. It's just the fault of their - as he put it, their indigency.

And the Constitution really has nothing to say about that. The Constitution - the government didn't create the problem. And the government is under no obligation to solve the problem. And that really - what we say in that chapter is - that was the Burger court's Constitution in the raw. There's - there was a right.

But there was no obligation to enable people to claim their right - to effect the right. And that's why I think it's fair to say that the entire handling of the abortion issue is really - instead of being sort of outside the narrative of the Burger court - was really essentially a part of it.

GROSS: As part of your research for your new book, you read justice's papers. What kind of insights do you get from reading papers? And what papers do you have access to?

GREENHOUSE: So I'll just say, I mean, it's enormous fun. It's like reading other people's mail. And it's very addictive. So there are archives of the - some justice's papers - unfortunately, not all of them - and some of them not terrifically accessible. Warren Burger's own papers are not open to the public. They remain closed until 2026, 10 years from now, at the College of William and Mary.

But Justice Harry Blackmun's papers are open at the Library of Congress. And he was a total pack rat. He saved everything. And Lewis Powell also was quite a pack rat. And he gave his papers to his alma mater, Washington and Lee in Virginia, which has a wonderful library and has been nice enough to digitize most of his files.

And they're up online through the Washington and Lee website. So I would urge anybody who's curious to go on that website and just pick a favorite case during the time that Justice Powell was on the court in the 1970s up until 1987. And take a look at his files, his notes to himself, his editing of drafts, his responses to other justice's drafts.

So that's a great set of papers. And then we also had Potter Stewart's papers, which, very conveniently, are at the Yale - the main Yale library, which is right across the street from Yale Law School, where my office is. And so that was an easy few dozen steps to have access to Potter Stewart's papers. So those were the basic archives that we used.

GROSS: Tell us something fascinating you learned by reading former justice's papers.

GREENHOUSE: Well, one thing that we were discussing a little while ago on the abortion question - what about the government's obligation to pay for abortions for poor women? So that case was assigned to Potter Stewart. And we see in his case file in that case - case called Harris against McRae - he's writing out - he's working on his opinion rejecting the notion that the government has any obligation.

And he has a law clerk who is obviously very uncomfortable with this outcome. But of course, the law clerk is working for his justice. He's not going to change the justice's mind.

So he tries to insert a couple of paragraphs - just a kind of expression of empathy for the plight of a woman who needs an abortion and can't afford one - and just saying it's really too bad that the government has taken this position in the Hyde Amendment. But we're just sorry to say - we wish it were otherwise - but we're just sorry to say that the Constitution has nothing to do about that.

And in Potter Stewart's file, there's this draft by the law clerk inserted into a draft of the opinion over which Potter Stewart has placed a large X. And that, of course, never appears in the opinion. When I found that, sort of the hair on the back of my neck stood up.

GROSS: If you're just joining us, my guest is Linda Greenhouse. She's the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." Let's take a short break, and we'll talk some more. This is FRESH AIR.

GROSS: This is FRESH AIR. And if you're just joining us, my guest is Linda Greenhouse. She's the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." She covered the Supreme Court for The New York Times for nearly 30 years. She now writes a bi-weekly column for The Times website, and she teaches at Yale Law School.

So let's look at the Supreme Court without Justice Scalia. He died in February. What role has Chief Justice Roberts taken in this new 4-4 court, with four liberals and four conservatives?

GREENHOUSE: Right. I mean, certainly Justice Scalia's departure created a new dynamic on the court. So one example is a case that was argued before he died, a case called Friedrichs against California Teachers Association. And that was a challenge to the ability of public employee unions to collect dues - a portion of dues from members who don't want to join the union and object to the union but can be assessed under longstanding Supreme Court precedent for that portion of the dues that goes to represent them in collective bargaining.

And people who don't like unions hate this doctrine - cobbled up a case challenging it, brought it to the Supreme Court. The court agreed to hear it. The court heard it. And it was clear from the argument as well as from the fact that the court took this case in the first place that there was going to be a 5-to-4 decision to overturn the longstanding precedent and basically cut the financial legs out from under public employee unions.

That was in the works. The case was, as far as anybody can tell, assigned to Justice Sam Alito, who was the kind of leading force behind getting this issue onto the Supreme Court's docket. And he was, one assumes, drafting an opinion to accomplish this. And then Justice Scalia died, and then the vote was 4 to 4. And a 4-to-4 tie affirms the lower court opinion. The lower court, of course, had upheld the old Supreme Court precedent and said unions could collect this money. And that was the end of that.

So that was a very dramatic example of the impact of Justice Scalia's death. I think it kind of cut off the ability to have these conservative agenda items make headway in the current Supreme Court. And in terms of what happens to the court after the election, it's just a - it's a reminder of how much every vote counts and how closely divided the court is on many if not most of the issues that people care the most about.

GROSS: Justice Scalia was an originalist, believing that the Constitution should be interpreted as literally as possible and as close to the Founders' interpretation and intention as possible. And Justice Thomas is also an originalist. Do you think that Justice Thomas's role in the court is changing at all after the death of Justice Scalia?

And I should mention that a contrast between the two of them is Justice Scalia was very outspoken. He was known for writing a lot of decisions. He was famous for his writing, whereas Justice Thomas is known as not speaking on the court. So is Thomas's position changing at all?

GREENHOUSE: Actually no, I don't think so. He does have a view that we need to go back to the beginning in every doctrine, that most of modern constitutional law is illegitimate. He doesn't believe in the role of precedent, which, by the way, Justice Scalia did. Even precedents that he disagreed with, when they were kind of foundational, he would accept them and kind of go on from there.

That is not Justice Thomas's way. And because of that, he's not really a player in the court's decision-making function. Of course, he's got a vote, and everybody's vote is equal. But he will never get an assignment to write for a majority in an important case because his views are so eccentric that even if there's a majority that agrees with him on the bottom line - that is to say affirm the lower court opinion or reverse it - there's not a majority that's going to go for his constitutional analysis. So he's really, you know, off on his own project, and he's taken himself out of - he never was really in the mix of people actually trying to sort out today's questions by invoking the body of precedent that's been built up in the Supreme Court for more than 200 years.

GROSS: What's your take on Congress blocking President Obama's appointment of Judge Merrick Garland?

GREENHOUSE: My personal take as a citizen is that I think it's outrageous. And also, I think it's important to understand that it is completely new. There is no precedent for it. The Republicans somehow cobble up some notion that, you know, this is sort of an everyday occurrence when there's an election pending. That is not true. Of course, the Senate's free to reject any nominee of any president and has done so, you know, consistently over time. But to not even give the nominee a hearing is - just kind of defies belief. So, you know, it seems as if they're getting away with it, but we shall see.

GROSS: So if the next president's only job was to appoint Supreme Court justices, it would still be a very important job. Just in terms of the Supreme Court, what's at stake in this election?

GREENHOUSE: Well, basically, what's at stake in this election is the outcome of most of the constitutional disputes and even statutory disputes that we the public care the most about. It's noted - commonly noted both by you and everybody how closely divided the court is and also commonly noted that there's going to be a couple of vacancies. It's hard to think of a single subject area - whether it's race, crime, it's hard to think of a single subject area whether it's race, crime, women's rights, abortion rights, the rights of businesses, the future of campaign finance, for instance - where the change of a justice or two could make a major change in the outcome. So it's almost hard to exaggerate how important this is.

GROSS: Well, Linda Greenhouse, I want to thank you so much for talking with us.

GREENHOUSE: Thanks for having me, delighted to be here.

GROSS: Linda Greenhouse is the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." After we take a short break, a new comic adventure podcast for kids - "The Radio Adventures Of Eleanor Amplified." This is FRESH AIR.

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History of the Courts – The Burger Court, 1969-1986

Earl Warren’s successor, Warren Burger, a native of Minnesota, had been a judge of the Court of Appeals for the District of Columbia Circuit for more than a decade. He became Chief Justice in 1969.

One of the most famous of the Court’s rulings involving the conflict between religious freedom and state public schools came under Chief Justice Burger in 1972. It resulted in a victory for three Amish families in rural Wisconsin who were testing the guarantee of religious freedom. They had refused to send their children to public school beyond the eighth grade, asserting that modern secondary education was contrary to the Amish religion and a threat to their children’s salvation. “The Amish . . . have convincingly demonstrated the sincerity of their religious beliefs,” said the Court, and the children were free, after completing elementary school, to follow the centuries-old tradition of learning at home.

When the Internal Revenue Service declared in 1970 that private schools discriminating against blacks could no longer claim tax-exempt status, the action went largely unnoticed by the public. In 1983, it became prime-time news when two religious schools having admission policies based on race sought to regain tax-favored status and the case reached the Supreme Court.

Counsel for Bob Jones University and Goldsboro Christian School argued that their policies were based on sincerely held religious beliefs. But the Court ruled that the First Amendment did not prevent denial of tax-favored status. Eliminating racial discrimination in education substantially outweighed any burden placed on the free exercise of religion, according to the eight-to-one majority.

The Court also held in 1983 that reading a prayer at the opening day session of the Nebraska legislature did not violate the First Amendment’s establishment-of-religion clause. In another highly publicized case, a year later, it ruled that a Nativity scene displayed at Christmastime by the city of Pawtucket, Rhode Island, did not violate the Constitution. This extended the degree which government may use religious symbols to acknowledge the Nation’s heritage.

The long-standing controversy over religion in public schools took yet another form in 1985. The Court struck down an Alabama law that permitted a moment of silence in schools for prayer or mediation. Justice John Paul Stevens, speaking for the Court, said that the law had no secular purpose, but rather was designed to encourage students to pray.

Are religious groups free, under the First Amendment, to distribute literature other than in designated locations in state fairgrounds in disregard of rules applied to all exhibitors? The Court said no in 1981. Are privately owned shopping malls subject to free speech requirements as old-fashioned Main Streets are? In one case the answer was a qualified yes in another, a qualified no.

Most Americans take freedom of speech and of the press as the most evident and absolute of rights, guaranteed by the First Amendment. Yet in the last three decades, the Supreme Court has been called upon to decide more cases concerning freedom of the press than in the previous 175 years. Controversies involving the press and the broadcast media are extensively reported by them, fairly in their own eyes and in those of some observers, not always so fairly in the eyes of others.

In the 1970s, the press was “subjected to a judicial battering that has been more serious and more fundamental, than the assaults that were mounted in more parlous days,” an attorney representing press interests asserted in a 1979 weekly magazine article.

Free to reply to such criticism when he retired from the Court in 1981, Associate Justice Potter Stewart said that the notion that “traditional protections are being ignored or disregarded or destroyed is a completely fallacious thought.”

Controversy over the Vietnam was at a peak when, on June 13, 1971, the New York Times began publishing installments of a secret, illegally obtained document concerning the United States’ conduct of the war. The government saw grave dangers to U.S. security in the publication of what became known as the Pentagon Papers, and sought injunctions to prevent both the Times and the Washington Post from further dissemination of the stolen information. Within two weeks the case reached the Supreme Court, which heard arguments on June 26 and announced its decision on June 30.

Once again, as it has through the years, the Court refused to countenance restraint prior to publication. In a brief decision, the Court observed that any system of prior restraint bears “a heavy presumption against its constitutional validity.” Each Justice filed a separate opinion there were three dissents. Among the majority, Justice William J. Brennan denounced prior restraint in nearly absolute terms, but he conceded that in wartime there might be a “single, extremely narrow” class of exceptions. The three dissenters emphasized the “almost irresponsibly feverish” speed with which the case was disposed of according to Justice John M. Harlan, it should have been conducted under full ground rules.

The Pentagon Papers were published and were a journalistic sensation at home and abroad but the war in Vietnam went on.

Do news reporters have a right to confidentiality of their sources under the First Amendment? They argue that unless they can protect the identity of people who give them information under promises of secrecy, the sources will dry up.

Not so, said the Court in 1972, speaking through Justice Byron White when a grand jury is seeking evidence concerning a crime, a reporter’s sources are not necessarily protected. If the reporter believes the testimony is not essential to the case, he or she may ask the court to issue a protective order but the Court will decide.

Another controversial issue involving First Amendment protection came to the Supreme Court: the explicit treatment of sex in books, magazines, and motion pictures. In 1957 and again in 1966 under Chief Justice Earl Warren, the Court held that the First Amendment protects material challenged as pornography—even if the material might appeal to prurient interests and affront community standards— unless it is shown to be “utterly without redeeming social value.” This test proved difficult to apply in practice, and in 1973 the Court substituted a modified standard: There is First Amendment protection unless “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” At the same time, the Court held that pornography cases should be decided by trial courts on the basis of individual community standards, not national ones.

But in 1982 the Court unanimously upheld a New York criminal statute prohibiting the distribution of material depicting sexual activity by children under the age of 16.

“On the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland, Neb., a town of about 850 people.” This stark recital began the decision that resolved two potentially conflicting guarantees in the Bill of Rights in favor of the First Amendment.

The day after the grisly discovery, Erwin Charles Simants was arrested and soon charged with committing the murders in the course of a sexual assault. The media gave the crime sensational coverage.

The right to a fair trial in all criminal prosecutions is explicitly guaranteed by the Sixth Amendment. The Nebraska Supreme Court sustained a lower court order restricting media coverage on the grounds that prejudicial news stories would make a fair trial for Simants difficult, if not impossible, anywhere in the state.

Unanimously, the Nation’s highest court decided otherwise, again refusing to sanction prior restraint. The majority opinion affirmed the “explicit command” of the Constitution that “freedom to speak and publish shall not be abridged,” echoing the trenchant phases of Chief Justice Charles Evans Hughes half a century earlier in Near v. Minnesota.

Again and again, the Court has struck down state law and lower court decisions that attempted to limit publication. In 1974 it ruled unanimously that the state of Florida could not require a newspaper to grant a “right of reply” to a candidate for public office whom the paper had criticized in print. In effect, such a law would give the state some control over the newspaper’s content, a form of government compulsion the Court held unconstitutional.

In 1978 the Court determined that the Commonwealth of Virginia could not prohibit the accurate reporting of closed-door proceedings of a state commission inquiring into the conduct of a judge, a matter of “utmost public concern.” In 1979, however, it held that the press did not have an absolute right to be present at pretrial proceedings. It sustained the lower court’s exclusion of a reporter, saying that publication of the accused’s confession would prevent a fair trial. The decision brought a barrage of criticism.

Criminal trials themselves are another matter, the Court said in regard to a Virginia murder case a year later in 1979, when it held that the right of the public and the press to attend them is guaranteed by the First and Fourteenth Amendments. The right to be present was specifically extended, in a unanimous decision in 1984, to the jury selection process for criminal trials.

The right of defendants charged with felonies to be represented by counsel, regardless of whether they could afford it, was extended to all state courts in the highly publicized Gideon decision of 1963 under Chief Justice Earl Warren. Less widely known is the decision concerning Jon Richard Argersinger, who had been sentenced by a Florida court to 90 days in prison for carrying a concealed weapon. In responding to his appeal in 1972, the Court expanded the right to counsel well beyond Gideon. Under this holding, an accused person may not be sent to prison, even on a misdemeanor charge, unless represented by an attorney and the state must provide one for indigent defendants.

The exclusionary rule highlights the controversy between advocates of the rights of persons accused of crime and champions of the right of a society to protect itself. This rule, established and refined by a series of Court interpretations over the years, is little understood by the public. Among judges, attorneys, scholars, and legislators, it is a keenly debated and divisive issue, and it is significant, often decisive, in the outcome of serious criminal cases.

The rule prescribes that evidence obtained by illegal means—including confessions obtained in violation of the Miranda warning requirement, conversations overheard through unauthorized electronic “bugging,” or tangible evidence such as drugs or weapons improperly seized—may not be used in trials.

But in recent years, while repeatedly upholding the Amendment against unreasonable search and seizure and the Miranda rule, the Court has modified their application in some respects. In 1984, in New York v. Quarles, it created a “public safety” exception to Miranda in circumstances where the public is in immediate danger, allowing police officers to ask questions to remove a threat without first informing an arrested person of his rights.

During the same term it adopted a “good faith” exception to the exclusionary rule. This allowed evidence to be used if police conducting the search reasonably relied upon a search warrant later determined to be technically defective.

A constitutional crisis seemed imminent on May 31, 1974, as the Watergate episode neared its climax. On that date, the Court granted a petition to hear a case whose outcome could lead to the impeachment of the President, and set July 8 for argument. The very name of the case spoke history and high drama: United States, Petition v. Richard M. Nixon, President of the United States.

The House of Representatives was already considering impeachment proceedings against President Nixon based on his part in a cover-up. Seven former members of his staff had been indicted on felony charges. They were accused of conspiring to obstruct justice by concealing White House involvement in the 1972 break-in at Democratic Party offices in Washington’s Watergate complex. The U.S. District Court ordered President Nixon to produce as evidence tape recordings and notes on 64 conversations that took place in the White House. The President refused to comply.

By 10:00 a.m. on July 8 it was evident that the 192 seats in the Court Chamber could not begin to accommodate the throngs who sought to witness this unique and critical passage in the life of the Republic. But more than 1,500 people attended at least part of the three hours of probing, measured, often quietly eloquent debate.

They heard the President’s advocate, James D. St. Clair, pressed by insistent questions from the Justices, defend the claim of absolute Presidential privilege and immunity from court orders. Even in a criminal conspiracy? Yes, said the President’s lawyer, “even if it’s criminal.”

They heard the Texas accents of Special Prosecutor Leon Jaworski as he invoked the constitutional power of the government to obtain evidence of a crime and also the structure of checks and balances. “Boiled down,” he declared, “this case really presents one fundamental issue: Who is to be the arbiter of what the Constitution says?”

Two weeks later, on a gray and muggy July 24, a tense crowd again filled the Court Chamber. As the hands of the clock marked 11, the traditional cry of “Oyez!” rang out. With somber dignity Chief Justice Warren Burger took note of the recent death of former Chief Justice Earl Warren, “our beloved colleague.” Then he went on to read in measured tones his opinion for a unanimous Court. For 17 minutes the audience strained to capture every word of the unequivocal finding: The President must surrender the tapes.

“Narrow,” some commentators called the decision. It was, in strongly reaffirming the separation of powers and the constitutional roots of executive privilege, but ruling that here the President’s privilege must yield to the demands of a fair trial, equally guaranteed by the Constitution.

“Broad,” others called it. It was, in reaffirming what Chief Justice John Marshall had said in Marbury v. Madison 171 years earlier—that it is “emphatically the province and duty” of this Court “to say what the law is.”

On August 9 President Nixon became the first chief executive in the Nation’s history to resign. Publication of three conversations of the disputed 64 had brought his Presidency to an end. At noon that day, Chief Justice Warren Burger administered the oath of office to Gerald R. Ford, the new President.

Woman’s rights have become such a dominant thread in the fabric of our political, social, and judicial life that it is hard to realize how recently this pattern was established. Not until 1971 did the Supreme Court first hold a government classification by gender unconstitutional in the following years cases involving charges of sex discrimination have become a more commonplace item on the Court’s docket.

Decision by decision, the Supreme Court struck down laws that arbitrarily favored males over females. Starting with Reed v. Reed in 1971, the Court said that the choice of administrator for an estate “may not lawfully be mandated solely on the basis of sex.” In 1973, the Court invalidated a federal law that provided broader housing and medical benefits for males in the military than it did for females. In 1974 an equal-pay-for-equal-work statute was upheld.

In 1975, the Court was faced with another aspect of discrimination and decreed that widowers with small children are entitled to Social Security survivors’ benefits equal to those of widows in similar situations. Finally, in 1976, the Court held that discrimination against men was just as much a violation of the Constitution as discrimination against women. This decision involved an Oklahoma statute permitting women to buy beer at the age of 18 but denying men the same right until they reached the age of 21.

Not all decisions of the Court have satisfied feminists. In 1979 it upheld a Massachusetts law giving preference to veterans in state employment. Even though more men than women could take advantage of the provision, there was no intent to discriminate by sex, said the Court women veterans were fully included. Justice Thurgood Marshall, joined by Justice William Brennan, dissented, saying “this degree of preference is not constitutionally permissible.” Then, on June 25, 1981, the Court upheld an all-male military draft registration law. The president of the National Organization for Women said the decision perpetuated “the myth of this country that all men are better than all women.”

Rapid social change has greatly affected the law in the area of sex discrimination. Again and again, the Supreme Court has made clear that the Constitution and laws do not permit discrimination on the basis of sex. In 1982, the Court held that a state university nursing school, which had historically admitted only women, could not exclude a male applicant simply on the basis of gender. In 1984, a unanimous Court held that a federal law banning discrimination based on sex and race was applicable to law-firm hiring and promotion decisions.

Affirmative action programs designed to redress discrimination based on race, religion, sex, or national origin have been repeatedly upheld by the Supreme Court, with some qualifications, since school segregation was outlawed in 1954 and a new Civil Rights Law was adopted by Congress in 1964.

The thorny issues involved have reached the Court in a stream of varied cases. One of the first to draw great national attention was that of “reverse discrimination” charged by Allan Bakke, which reached the high tribunal in 1977. Bakke, white, contested the denial of his admission to the medical school of the University of California at Davis, which reserved 16 of 100 places annually for minority candidates. Under this quota system, said Bakke, he had not been admitted, despite the fact that minority candidates with lower scores were accepted. He argued that this was a clear case of discrimination.

Bakke’s counsel told the Court that his client’s exclusion violated both the equal-protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The latter prohibits the exclusion of anyone on the basis of race or color from any program receiving financial assistance from the federal government.

The implications for minorities, for all student admissions policies, and for the future of civil rights legislation were portentous. News coverage and speculation reached an intensity unknown since the Nixon tapes case some people saw the whole process of desegregation threatened if Bakke’s position were upheld.

On June 28, 1978, the Court spoke—to a crowded room and to an international audience beyond. That the Justices held strong individual views was clear there were six separate opinions. By a vote of five to four, the Court determined that Allan Bakke should be admitted to the medical school at Davis. The Court also repudiated the school’s quota system as such, but permitted some consideration of minority status to achieve diversity in graduate and professional school education. Supporters of more categorical positions on both sides criticized the holdings but, in the judgment of a distinguished legal scholar, they “accomplished the task of defusing tension in a country which had become taut with anticipation.”

A year later, by a five-to-two vote, the Court upheld affirmative action programs established by private employers and unions to end discrimination. In 1980 the Court narrowly sustained an act of Congress which set aside ten percent of local public works programs for a defined category of minority businesses. Toward the goal of equality of economic opportunity, the opinion said, Congress has the “necessary latitude to try new techniques such as the limited use of racial and ethnic criteria.”

But in two other decisions of 1984 and 1986, The Court ruled that white employees under a seniority system may not be laid off to protect the jobs of black workers hired under an affirmative action plan.

Abortion is one of the most emotional and divisive issues in contemporary America. The controversy reached the Supreme Court as a constitutional question in 1972 and on January 22, 1973, in what has been called a sweeping decision, the Court set limits on state power to prohibit or to regulate abortion. In deciding Roe v. Wade and Doe v. Bolton, it held prohibitory statutes in Texas and Georgia invalid, and with them the abortion laws of many other states.

Based upon its determination of when a fetus becomes viable, the Court ruled that for the first three months of pregnancy a state must leave the decision on abortion to the woman and her physician. For the stage beginning with the fourth month, the state may set regulations reasonably related to maternal health. Finally, for the stage after viability—around the seventh month—the state may prohibit abortion unless the mother’s health is endangered.

Two dissenters called this decision an “extravagant exercise of raw judicial power.” In the majority opinion, citing rights protected by the Ninth and Fourteenth Amendments, Justice Harry A. Blackmun acknowledged the Court’s full awareness “of the deep and seemingly absolute convictions that the subject inspires.”

As demonstrators made their views known with marches and banners near the Supreme Court and on the avenues of the city, the Court reaffirmed its landmark ruling 13 years later by a five-to-four majority. It struck down a Pennsylvania statute that admittedly was intended to discourage women from choosing abortions.

Illegitimate children are entitled to equal protection under the Constitution, the Court held in 1974, and struck down a section of the Social Security Act that denied benefits to some of them. From 1900 to 1969, the Court heard only six cases on the status of illegitimate children since then it has heard more than twenty.

Most state and federal statutes governing legal relations between men and women and their offspring have long been based on conventional forms of marriage and divorce. But as the 1980’s began, hundreds of thousands of couples were choosing to live together outside of marriage, sometimes raising families and staying together over long periods of time.

Adopted children, now grown, are challenging state laws that have sealed their birth records, thus preventing them from learning the identity of their natural parents. Husbands are demanding alimony from wives, and in 1979 the Supreme Court struck down a state law that denied support payments from wife to husband.

In 1980 the Court was called upon to decide whether a new form of life, created from a combination of inanimate components could be patented. Eight years earlier a microbiologist, Ananda M. Chakrabarty of Schenectady, New York, had developed a bacterium capable of breaking down several components of crude oil. Naturally occurring bacteria were able to degrade only one product of genetic engineering, capable of mass production, and promised among its benefits more efficient and rapid control of destructive oil spills.

By a five-to-four vote, the Court held that Chakrabarty’s discovery represented a new and man-made form of life that it constituted a “manufacture” or “composition of matter” as defined by the parent laws originally drafted by Thomas Jefferson and that Chakrabarty’s rights as an inventor were entitled to protection. Warnings of hazards from genetic research were brushed aside by the opinion these considerations, said the Court, should be presented to Congress.

“The most significant constitutional ruling since United States v. Nixon nine years earlier,” said a constitutional historian of an otherwise obscure immigration case decided in June 1983. This time the powers of Congress were at issue, going to the heart of the Constitution’s separation of powers among the executive, legislative, and judicial branches.

The case lacked the drama and popular interest of Watergate but was, said some observers, far broader in its effect. At stake was the constitutionality of the “Legislative veto,” a device used by Congress since 1932 in some 350 legislative acts. In nearly 200 laws still in effect, Congress had delegated powers to the executive branch while retaining the authority to veto the way in which the powers were exercised by departments, agencies, and commissions.

Jagdish Chadha, an Indian born in Kenya and holding a British passport, had been ordered to leave the United States after obtaining a university degree in Ohio. He appealed to the Immigration and Naturalization Service and eventually obtained permission to remain as a hardship case. But the House subcommittee reviewing a list of aliens seeking permanent residence disagreed and removed his name. Chadha fought back with the help of a law firm that appealed his case through the courts. Nine years later it reached the supreme tribunal.

The decision of Congress to deport Chadha was a legislative act, Chief Justice Burger held in his opinion for the Court, and the subcommittee’s “one-house veto” was unlawful. It violated “the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”

All legislation must be passed by both the House and the Senate and be presented to the President checks” on each branch and to maintain the separation of powers “the carefully defined limits on the power of each Branch must not be eroded,” the Court said.

Justice Byron White, who was joined by Justice William H. Rehnquist in dissent, reading his opinion aloud from the bench to give it added emphasis, described the veto as “a central means by which Congress secures the accountability of executive and independent agencies.” The legislative veto, he said, is a useful invention for “the modern administrative state,” enabling Congress to delegate authority while retaining responsibility.

“Not since the New Deal collisions of the 1930s,” said one national publication, “had Congress felt so keenly the power of the Court to curtail its actions,” thus altering the “delicate balance” of power between the legislative and executive branches.

But the Court’s last words on the matter were definitive: “with all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”

Life itself is weighed on the scales of justice when a crime is punishable by death. On one side of the scales are the rights of the accused, protected in the body of the Constitution and in no fewer than five Amendments. On the other side is society’s need, loudly and frequently voiced in an era of mounting crime and violence, to deter and punish criminals.

On the constitutionality of capital punishment, the Court has spoken firmly in landmark cases. In Furman v. Georgia, announced on June 29, 1972, it found that the death penalty as applied in that case would be “cruel and unusual punishment,” forbidden by the Eighth Amendment. For 631 men and two women waiting on death row in 32 states, the decision brought hope for new sentences or new trials.

More than half the states moved to rewrite their statutes to conform with the decision. The rewritten laws also came up for scrutiny and in 1976 the Court cleared the air and flatly rejected the claim that the death sentence is in itself always cruel and unusual punishment. The Court upheld three of the new laws and invalidated two others. It held that the Eighth Amendment requires the sentencing judge or jury to consider not only the crime but also the individual character of the offender, as well as any mitigating circumstances in the case.

The Court went a step further in 1977. In a case involving the rape of an adult woman, it found the death sentence “grossly disproportionate and excessive” and thus unconstitutional. Two Justices dissented strongly, characterizing rape as among the crimes constitutionally within the power of legislatures to make punishable by execution.

Since then a divided Court has refused to overturn the death penalty as such in a number of cases, with Justices Brennan and Marshall consistently dissenting from any imposition of capital punishment. However, in 1986 the Court held that the Eighth Amendment prevents states from executing insane convicts.

Partly because of cases pending in the Supreme Court, there were no executions in the United States from 1968 through 1976. In the eleven years following, under state laws revised to accord with Supreme Court rulings, more than 90 persons convicted of violent crimes were put to death.

When Warren Burger stepped down in 1986, he had served longer than any Chief Justice appointed in the 20 th century. President Ronald Reagan, as several of his predecessors had done, turned to the Court itself for the new Chief Justice: He named William H. Rehnquist, an Associate Justice since 1972.


Warren Burger - History

Despite its conservative image, the Supreme Court under Chief Justices Warren Burger and William Rehnquist has been active in the area of sex discrimination and women's rights. In contrast to the Warren Court, which ruled on only one major sex discrimination case--upholding a law that excluded women from serving on juries--the Burger and Rehnquist Courts have considered numerous cases involving women's rights.

The Burger Court issued its first important discrimination decision in the landmark case, Griggs v. Duke Power Company (1971). The Supreme Court established the principle that regardless of an employer's intentions, any employment practice is illegal if it has a "disparate" impact on women or minorities and "if it cannot be shown to be related to job performance." In subsequent cases, the Supreme Court legitimized the use of statistics in measuring employment discrimination and approved the use of back pay in compensating discrimination victims.

In 1975, the Burger Court reversed the Warren Court by striking down a Louisiana statute calling for all-male juries. In subsequent decisions, the high court ruled against a Utah law setting different ages at which men and women became adults and overturned an Alabama law setting minimum height and weight requirements for prison guards--standards that meant that almost no woman would qualify.

The Supreme Court has yet to set an absolute rule that laws and employment practices must treat men and women the same. In 1976, it adopted its current standard for sex discrimination. In order to be constitutional, a policy that discriminates on the basis of sex must be "substantially related to an important government objective."

The Supreme Court's most controversial decision involving women's rights was delivered in the case of Roe v. Wade (1973). A single, pregnant, Texas waitress, assigned the pseudonym Jane Roe in order to protect her privacy, brought suit against Dallas District Attorney Henry Wade to prevent him from enforcing a 19th-century Texas statute prohibiting abortion. The Supreme Court ruled on the woman's behalf and struck down the Texas law and all similar laws in other states. In its ruling, the Court declared that the decision to have an abortion is a private matter of concern only to a woman and her physician, and that only in the last three months of pregnancy could the government limit the right to abortion.

Many Americans--including many Catholic lay and clerical organizations--bitterly opposed the Supreme Court's Roe v. Wade (1973) decision and banded together to form the "right to life" movement. The major legislative success of the right to life movement was adoption by Congress of the so-called Hyde Amendment, which permitted states to refuse to fund abortions for indigent women.


The 50th Anniversary of Warren Burger's Appointment as Chief Supreme Court Justice

Professor Jeffrey B. Morris began teaching at the City College of CUNY and then taught at the University of Pennsylvania. Beginning in 1988, he taught law as a Professor at the Jacob D. Fuchsberg Law Center of Touro College. Professor Jeffrey B. Morris has written or edited over a dozen books and was commissioned to write histories of the U.S. Court of Appeals for the Second Circuit, the U.S. Court of Appeals for the District of Columbia Circuit, the U.S. District Court of the Eastern District of New York, and U.S. District Court for the District of Columbia.

Warren Burger was appointed Chief Justice during a tumultuous time. 1968, a year of assassinations and riots had just passed. In May 1969, almost all American institutions were under attack, casualties of the Vietnam War and a decade of racial tension. Lyndon Johnson, elected in a landslide in 1964, has been too unpopular to stand for reelection. His successor, Richard Nixon, proved to be among the most controversial American political figures of the Twentieth Century. Earl Warren, Burger&rsquos predecessor, had been among the most controversial Chief Justices in history as a result of decisions attempting to bring about racial equality and giving expansive readings to the Bill of Rights. The man Johnson had chosen to replace Warren, his close friend and advisor, Abe Fortas, not only was unable to win confirmation, but days before Burger was appointed, resigned from the Supreme Court bench under an ethical cloud.

Burger&rsquos Appointment

Earl Warren announced his resignation in the summer of 1968. After Fortas failed to be confirmed because of a successful filibuster by Senate Republicans and Southern Democrats, President Johnson refused &ndash some thought petulantly &ndash to nominate anyone else, so the vacancy awaited filling by President Nixon, who asked Warren to remain as Chief Justice until the end of the Court&rsquos term.

Several leading possibilities had taken themselves out of the running &ndash former New York Governor and Presidential candidate Thomas E. Dewey, Eisenhower&rsquos Attorney General, Herbert Brownell, and Justice Potter Stewart. After Fortas&rsquos resignation, Nixon believed it important that he not choose a close personal friend. That eliminated Secretary of State William Rogers and his old friend, Charles Rhyne.

President Nixon was more keenly aware than most Presidents have been of the importance of nominating a Chief Justice and was more careful and more personally involved than many of his predecessors. Nixon appears to have given particular weight to such factors as age, legal qualifications and integrity.


Warren Burger on the Second Amendment

An image has resurfaced on Facebook lately highlighting a quote from former Supreme Court Chief Justice Warren Burger:

I did a litte digging just to make sure this wasn’t Snopes-worthy, and it turns out that this quote came from a PBS News Hour interview in 1991 and is correctly attributed to Chief Justice Burger.

With two school shootings in two weeks, (Oregon last week, and Arizona yesterday), it seems only right to be asking questions.

An article originally published in Parade magazine in 1990, asks some really good ones (excerpt below), and I submit it here for consideration. At the time of this update, you can still see the full article at Google Books (click the link for page 377):

  1. to provide that, to acquire a firearm, an application be made reciting age, residence, employment and any prior criminal convictions?
  2. to required that this application lie on the table for 10 days (absent a showing for urgent need) before the license would be issued?
  3. that the transfer of a firearm be made essentially as with that of a motor vehicle?
    to have a “ballistic fingerprint” of the firearm made by the manufacturer and filed with the license record so
  4. that, if a bullet is found in a victim’s body, law enforcement might be helped in finding the culprit?

What is clear is that in today’s society, the domestic tranquility is not being preserved, nor are the inalienable rights of life, liberty, and the pursuit of happiness mentioned in the Declaration of Independence. School shootings appear in the news regularly, but less-reported is the daily slaughter in our inner cities and elsewhere, for example the recent murders of a dog walker and a backpacker by three drifters in California. Articles like this surface, are news for a day, and are then forgotten, and nobody seems to care that gang-bangers are killing each other and innocent bystanders with reckless abandon. For the victims of such acts of violence, somehow those inalienable rights are failing to apply, and it must stop.

The gun lobby’s interpretation of the Second Amendment can be summarized by two flags that I’ve seen flying in my own neighborhood:

both of which echo the “cold dead hands” sentiment originated by the Citizens Committee for the Right to Keep and Bear Arms and popularized by Charlton Heston.

One of my European colleagues asked, at a Facebook discussion of this issue,

You do realize that, seen from abroad, you all seem to have taken leave of your senses?

A libertarian friend of mine responded,

And from an American’s perspective, … you appear to be incredibly vulnerable.

These are the views from the polar opposites. We have to find a middle ground, and we have to stop the carnage. Not to do so is to sacrifice our humanity at the altar of death. With the words of Warren Burger ringing in my ears – and it’s to be remembered that he was a conservative justice, not a liberal one – the questions he asks appear both valid and sane.

My additional thoughts on the subject can be found at Guns are in America’s DNA


Warren E. Burger went to the John A. Johnson High School from where he passed in 1925. He was an extremely active student &ndash both in academics and sports. His articles were published in local newspapers. To support the needs of his higher education, Burger worked as an insurance agent and attended night classes at the University of Minnesota. He was very interested in Politics and Law and earned his law degree from the St. Paul College of Law in 1931.

Warren E. Burger started his career at a law firm dealing with civil cases. Eventually, he moved into politics as a Republican. Youthful and energetic, Burger campaigned for Harold Stassen during the governor elections from 1938 to 1942. In 1952, he became the Assistant Attorney General with nearly 200 lawyers under him. He was working for Dwight Eisenhower who became the President. This was the platform from where Burger could successfully launch his career.

Four years later, Warren E. Burger was promoted and served at the U.S. Courts of Appeal for the Columbia district. In 1969, after 13 years of hard and sincere work, Burger was nominated to be the 15th Chief Justice of the U.S. Burger gave some revolutionary decisions regarding social reforms making laws against racial practices in schools stricter.

Although President Nixon nominated Warren E. Burger, he wasn&rsquot influenced by politics. He was instrumental in terminating the death penalty laws in the country. However, looking at the nature of the crime, he made death penalties legal again for the rarest and most heinous crimes. (Gregg vs. Georgia case).

In 1973, Warren E. Burger granted women the right to abortions &ndash a case that was highly controversial. He was also behind the resignation of President Nixon declaring him guilty after the 1974 Watergate recordings came into light.

Warren E. Burger championed the cause of other lawyers and judges leading to an increase in their salaries and benefits. He served as the Chief Justice of the US for nearly 17 years and retired in 1986. After that, he became the Chancellor of the College of William and Mary.


Watch the video: RICHARD NIXON TAPES: Discussing Porn Law with the Chief Justice (January 2022).