The Court That Tilted and Veered

By Richard Lacayo

When Warren Burger was made Chief Justice in 1969, there were those who saw the potential for a revolution against the activism of the Earl Warren Court. Seventeen years and five more Republican appointments later, the Burger Court has not undone the Warren legacies so much as consolidated them, affirming the earlier rulings even as it modified and diluted them. It was a court that could move boldly when it needed to. It upheld the right of the press to publish the Pentagon papers. It ruled unanimously that Richard Nixon could not withhold the damning White House tapes sought by the Watergate special prosecutor. But it did not reverse outright a single one of the major Warren doctrines.

"The Burger Court will be remembered, if it's remembered at all, as a moderate court, neither retrenching nor avant-garde," says Duke University Law Professor William Van Alstyne. Its prudence derived from the respect it, like previous courts, accorded to the precedents set by predecessors. Thus the Warren rulings became the basis upon which the Burger Court built its reasonings. It left standing the chief emblem of the Warren era's expansion of defendants' rights, the Miranda decision, which requires police to inform suspects of their rights before interrogation. But it allowed police to dispense with Miranda warnings in emergency situations, weakened the rights of suspects during pretrial procedures and identified some circumstances in which illegally obtained evidence could be admitted in court.

The Burger Court was expected to apply the provisions of the Constitution narrowly rather than find in them an opportunity to mandate its own far- reaching solutions to social problems. Even so, it practiced its share of judicial activism. It upheld busing as a legitimate tool for desegregating schools and overturned laws that discriminated on the basis of sex. In its most difficult advance into new territory, it ruled that women have a right to abortion. "This court has moved into areas the Warren Court never came near," says American University Law Professor Herman Schwartz. Yet when it moved, it was typically with a lumbering tread, tilting and veering with the shifts of the Justices at its center: Blackmun, Powell, Stevens, White and the late Potter Stewart. The Burger era may be remembered as one in which the centrists played the crucial role as swing votes in a court that was always swaying. But durable voting blocs were hard to forge among Justices who faced the divisive task of implementing broad principles that the Warren Court had merely sketched out: first the agreeable axioms of equality, then the vexing arithmetic of affirmative action. So in the landmark Bakke case, five Justices voted to invalidate a racial quota at a California medical school but five (Powell was in both camps) also approved the use of some race-conscious affirmative-action programs. In a string of decisions since then, the shifting coalitions on the court have tilted back and forth on when and how affirmative action can be applied.

The Burger Court also tinkered with the barrier between church and state, though again in ways that left both sides dissatisfied. The same is true of its mixed treatment of free speech and the press. But after the announcement of his resignation last week, the Chief Justice told reporters that he had written more opinions favorable to the press than any other Justice: "The First Amendment isn't one damn bit more important to you than it is to me."

"This court had a couple of Justices with vision," says University of Michigan Law Professor Yale Kamisar. "Brennan on the left and Rehnquist on the right. But nobody had the votes." As a result, the legacy of the Burger Court, insofar as it makes sense to speak of a Burger Court, lies mainly in the details. "It met the hard cases, decided the finer points and didn't push things along any further," says University of Texas Law Professor Scot Powe. For an era of rapid and thus often heated social change, that amounts to a respectable epitaph.

With reporting by David Beckwith and Anne Constable/Washington