The Burger Court was the period in the history of the
Supreme Court of the United States from 1969 to 1986, when
Warren E. Burger served as
Chief Justice of the United States. Burger succeeded
Earl Warren as Chief Justice after the latter's retirement, and served as Chief Justice until his retirement, at which point
William Rehnquist was nominated and confirmed as Burger's replacement. The Burger Court is generally considered to be the last liberal court to date. It has been described as a "transitional" court, due to its transition from having the liberal rulings of the
Warren Court to the conservative rulings of the
Rehnquist Court.[1]
A symbol of the conservative "retrenchment" promised by President
Richard Nixon in the
1968 election, Burger was often overshadowed by the liberal
William Brennan and the more conservative
William Rehnquist.[1] The Burger Court had a less generous interpretation of the protections offered by the
Fourth Amendment and the
Fifth Amendment than those of the Warren Court, but the Burger Court did not overrule any of the major precedents set by the Warren Court.[2]
Membership
In 1969, President
Richard Nixon appointed Warren Burger as the replacement for the retiring
Earl Warren. Warren had attempted to retire in 1968, but President
Lyndon B. Johnson's nomination of Associate Justice
Abe Fortas as Chief Justice was successfully filibustered by Senate Republicans. Fortas resigned from the court in 1969 following an ethics scandal, and Burger was easily confirmed the next month.
Black and Harlan both died in 1971, and Nixon replaced them with
Lewis Powell and
William Rehnquist. Nixon considered
Mildred Lillie for nomination, but according to former White House Counsel
John Dean, Chief Justice
Warren E. Burger was deeply opposed to the idea of a woman on the court.[4] Burger threatened to resign over the nomination,[5] and Nixon chose to nominate Lewis Powell rather than Lillie.
In 1975, Douglas stepped down from the court, and President
Gerald Ford appointed
John Paul Stevens to replace him. In 1981, Stewart retired, and President
Ronald Reagan appointed
Sandra Day O'Connor to replace him. O'Connor was the first woman to serve on the Supreme Court.
The Burger Court ended on September 26, 1986, when Chief Justice Burger retired. He was succeeded as Chief Justice by William Rehnquist, who was elevated to the position of Chief Justice by President Reagan.
Timeline
Bar key:
F. Roosevelt appointee Eisenhower appointee Kennedy appointee L. Johnson appointee Nixon appointee Ford appointee Reagan appointee
The Burger Court issued several notable rulings touching on many aspects of American life. Landmark cases of the Burger Court include:[1][6]
Lemon v. Kurtzman (1971): In an 8–1 decision written by Chief Justice Burger, the Court struck down a state law that allowed school superintendents to reimburse Catholic schools for the salaries of teachers. The court held that this violated the
Establishment Clause, and the court created the
Lemon test to determine whether a law is constitutional under the Establishment Clause.
Roe v. Wade (1973): In a 7–2 decision written by Justice Blackmun, the court held that the right to privacy under the
Due Process Clause extended to a woman's decision to have an
abortion. The opinion struck down several state restrictions on abortion, and the opinion sparked an
ongoing debate regarding abortion. Roe was eventually overturned by Dobbs v. Jackson Women's Health Organization (2022).
Miller v. California (1973): In a 5–4 decision written by Chief Justice Burger, the court laid out the
Miller test, which the court continues to use as a definition for
obscene material. The court held that First Amendment protections extend only to non-obscene material.
United States v. Nixon (1974): In an 8–0 decision written by Chief Justice Burger, the court rejected President Nixon's claim that
executive privilege protected all communications between Nixon and his advisers. The ruling was important to the
Watergate scandal, and Nixon resigned weeks after the decision was delivered.
Milliken v. Bradley (1974): In a 5–4 decision, the court determined that
school desegregation mandates need only be applied to schools within a single district and not to schools across different districts, unless it could be proven that district lines had been drawn with racist intent. The decision enabled de facto segregation by
white flight from urban to suburban school districts.
Gregg v. Georgia (1976): In a 7–2 decision written by Justice Stewart, the court held that the
death penalty did not always qualify as
cruel and unusual punishment, which is barred by the
Eighth Amendment. The court required that the death penalty only be applied in extreme circumstances, and that any death penalty sentence be subject to appellate review.
Bob Jones University v. United States (1983): In an 8–1 decision written by Chief Justice Burger, the court allowed the
Internal Revenue Service to remove the non-profit classification of
Bob Jones University due to the university's policy of racial discrimination. In doing so, the court held that IRS could deny non-profit status on the basis of compelling government interests.
Judicial philosophy
Although Presidents Nixon, Ford, and Reagan all criticized the rulings of the Warren Court and sought to appoint conservative justices, the legacy of the Warren Court remained strong throughout the 1970s.[7] The Burger Court upheld many of the precedents of the Warren Court, even in regards to
due process and criminal law.[8] The latter era of the Warren Court was dominated by liberal justices, but the court shifted to the right early in 1969, following Nixon's appointments.[9] Brennan and Marshall generally took liberal positions, while Stevens (after he replaced the liberal Douglas in 1975), Stewart, and White often took centrist positions, and Rehnquist, Burger, and (to a lesser extent) Powell made up the conservative bloc of the court.[9] During his time on the court, Blackmun shifted from the right towards the center, allowing liberals to claim more victories as the 1970s continued.[9] However, the conservatives on the court were strengthened in 1981 when Stewart was replaced by the more conservative O'Connor, who was also the first female justice.[9] Nonetheless, Justice Brennan was often credited for winning the votes of the more centrist judges with his intellectual leadership.[7] The large number of moderates on the court and the resulting decisions gave the court a paradoxical reputation for being both conservative and liberal.[10] Although Burger was often overshadowed by the intellectual leadership of Brennan and Rehnquist, he earned a reputation as important judicial administrator who helped to create institutions such as the
National Center for State Courts.[1] Burger also often questioned the need for a judicial remedy in cases; Burger was a strong believer that courts could not cure all injustices, and Burger was not reluctant to limit the
standing of plaintiffs.[1]
Appraisal
Law professor Michael J. Graetz and court journalist
Linda Greenhouse characterize the Burger Court as conservative in many respects, handing down decisions that undermined Brown v. Board of Education and other liberal precedents of the Warren Court.[11] More prosaically, publisher
Larry Flynt, whose magazine Hustler was the subject of litigation in 1984, characterized the Burger Court as "nothing but eight assholes and a token cunt".[12]
Gallery
Burger Court (June 9, 1970 – September 17, 1971)
Burger Court (January 7, 1972 – November 12, 1975)
Burger Court (December 19, 1975 – July 3, 1981)
Burger Court (September 25, 1981 – September 26, 1986)
Hirshman, Linda (2015). Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. HarperCollins.
ISBN9780062238481.
Stern, Seth; Wermiel, Stephen (2010). Justice Brennan: Liberal Champion. Houghton Mifflin Harcourt.
ISBN9780547523897.
Williams, Juan (2011). Thurgood Marshall: American Revolutionary. Crown/Archetype.
ISBN9780307786128.
Other relevant works
Abraham, Henry Julian (2008). Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II. Rowman & Littlefield.
ISBN9780742558953.
Hall, Kermit L.; Ely, James W. Jr.; Grossman, Joel B., eds. (2005). The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press.
ISBN9780195176612.
Hall, Kermit L.; Ely, James W. Jr., eds. (2009). The Oxford Guide to United States Supreme Court Decisions (2nd ed.). Oxford University Press.
ISBN978-0195379396.
Hall, Timothy L. (2001). Supreme Court Justices: A Biographical Dictionary. Infobase Publishing.
ISBN9781438108179.
Hoffer, Peter Charles; Hoffer, WilliamJames Hull; Hull, N. E. H. (2018). The Supreme Court: An Essential History (2nd ed.). University Press of Kansas.
ISBN978-0-7006-2681-6.