Warren Burger
Chief Justice Warren Burger
President Richard Nixon replaced retiring Chief Justice Earl Warren with Warren Earl Burger in 1969. By 1972 Nixon had appointed three more justices. Because Nixon had campaigned vigorously against many of the Warren Court’s decisions, it seemed likely that his appointments would shift the Court in a more conservative direction. The Court did issue conservative decisions in some areas, but it also continued to build on the Warren Court’s legacy of judicial activism.
The Supreme Court’s most explosive decision in this period came in the 1973 case Roe v. Wade, which ruled state prohibitions on abortion unconstitutional. This decision was based on the right to privacy established by the Warren Court. The Court voted 7 to 2 against outlawing abortion, and three of Nixon’s justices, including Burger, sided with the majority. In the decades that followed, the Court addressed abortion in several more cases, but continued to uphold the essential premise of individual privacy in Roe. This conception of privacy regarded the right to an abortion as part of the right of a person to do with her body as she wants. The Constitution creates no such right explicitly, but the Court found one in the substantive due process rights guaranteed by the due process clause of the 14th Amendment. Critics charged that the Court majority had written its own values into the Constitution, insisting that the framers never intended to give the word liberty such a broad meaning.
The Burger Court also bolstered women’s rights by striking down several laws that discriminated against them based on their sex. The Court reasoned that the Equal Protection Clause of the 14th Amendment prohibited such discrimination. The landmark extension of the Equal Protection Clause to women came in the 1976 case Craig v. Boren, in which the Court ruled that gender-based discrimination must “be substantially related” to important legislative goals. This standard, although less rigid than the “strict scrutiny” test applied to racial discrimination, elevated gender to a protected constitutional category. The case also led the Court to be more receptive to claims from other types of groups that they had faced unconstitutional discrimination.
The Supreme Court entered the debate on affirmative action in the 1970s, approving several plans under federal law designed to end discrimination in hiring. In 1978 in the widely discussed reverse-discrimination case Regents of the University of California v. Bakke, the Court upheld the claim of a white applicant to a public medical school that he had been unconstitutionally denied admission solely on the basis of race. Yet in that same case, the sharply divided Court approved the use of race as one of the criteria in selecting applicants. In several later cases, it upheld affirmative action hiring plans designed to foster racial and ethnic diversity in the workplace. It limited affirmative action programs in some others, however. In 2003, in Grutter v. Bollinger, the Court reaffirmed the Bakke decision, ruling that society has a “compelling interest” in assuring racial diversity on college campuses. It was the Court’s first major ruling on affirmative action since Bakke.
Under Chief Justice Burger, the Supreme Court showed a conservative streak only in cases involving the procedural rights of criminal suspects and defendants. But even in these cases the Court rarely overruled the Warren Court’s expansion of these rights. Instead, the Court either refused to extend the logic of the prior cases to new areas, or it limited the scope of the protections that had been granted. In some instances it seemed even more willing to restrict the power of the states. In Furman v. Georgia in 1972, for example, the Court temporarily struck down the death penalty based on the Eighth Amendment’s prohibition of cruel and unusual punishment. But the Court soon overturned its moratorium on capital punishment after states enacted laws with safeguards against arbitrary sentencing decisions. (1)
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