Great Men as Supreme Court
Justices: Leadership and
Cohesion in the Warren and
Burger Courts.Capstone Presentation
By
Geoff Warren
The Warren Court (1953-69) The
Burger Court (1969-86)
Would the liberal/activist doctrine of the Warren
Court be struck by the more Conservative Burger
Court?
Why would the more conservative Burger Court leave much
of the Warren Court civil liberties and civil rights doctrine in
place but attack the Warren Court First Amendment doctrine?
The Burger Court lacked the cohesion marked by
the Warren Court as well as the strong leadership
provided by Earl Warren.
The Warren Court
The Warren Court was an activist body that played the role of a “super
legislature.”
-obscenity, school prayer, libel, criminal defendant rights, desegregation,
gerrymandering, the right to privacy, and equal protection doctrine.
Liberal Wing
Earl Warren
Hugo Black
William O. Douglas
Moderate Liberals
William J. Brennan
Arthur J. Goldberg
Conservative Justices
John Marshall Harlan
Potter Stewart
Felix Frankfurter
Charles E. Whittaker
Harold H. Burton
Sherman Minton
Stanley F. Reed
Unclassified
Tom C. Clark
Byron R. White
Brown v. Board of Education
-Plessy v. Ferguson
-“separate but equal”
-“not equal but separate”
-majority decisions to unanimous decisions
Earl Warren
-forged coalitions
-directed the evolution of law
-compromise and consensus building
The Burger Court
“Brain-child” of Nixon
The Warren Majority
Abe Fortas
Thurgood Marshall
William J. Brennan
William O. Douglas
Byron White*
Hugo Black*
Conservatives
Warren Burger
Potter Stewart
John Marshall Harlan
Harry A. Blackmun*
William Rehnquist*
Lewis Powell*
John Paul Stevens*
Sandra Day O’Connor*
Conference
-less time in Conference
-less time for collective deliberation
and consensus building
-less agreement on Court rulings
-greater number of separate opinions
Miller v. California
-assign a Justice to produce a
memorandum
-consensus formed and Justice picked
to write opinion
-sharpened confrontations between
opposing policy preferences.
-Burger and Brennan openly compete
for votes
-bare majority accepts Burger’s
Warren Burger
-scorned by Warren holdovers as well as new
appointees
-often unprepared for conference
-willing to change position in conference just to
reach majority
-product of the Nixon Whitehouse
Statistical Analysis
-The Burger Court from 1969-1980 averaged 138 institutional and
issued 43 separate opinions, 45 concurring opinions, and 105
dissenting opinions.
-The Burger Court issued about two times the number of concurring
opinions and 3 times the number of separate opinions.*
-Burger Court 52 days to complete an opinion and the Warren Court
35.
-Warren Court averaged 8 cases a year of 5-4 votes, the Burger Court
in first year 18.
-Between 1901 and the last year of the Warren Court, there were 51
cases decided by plurality opinion. The Burger Court handed down
111 in total.
Burger Court’s Passive Activism
-helped to solidify judicial activism by means of a
passive course of decision making
-reversals of Warren Court precedents never
materialized
-Brown v. Board of Education, Reynolds v. Sims,
and Miranda v. Arizona still intact
-“secondary” landmark precedents also intact
-New York Times v. Sullivan, Griswold v.
Connecticut, and Engel v. Vitale
The Activist Burger Court
-became an activist court
-In 16 terms, the Warren Court invalidated
19 provisions of federal statues.
-In the 1st through 13th terms of the Burger
Court, it struck down 24.
-Buckley v. Valeo, National League of Cities
v. Usery, and Northern Pipeline
Construction Co. v. Marathon Pipeline Co.
Activism in Civil Rights
-continued Warren Court’s activism
-two recurring issues: the desegregation of urban
school districts and the legality of racially
discriminating effects in the absence of
discriminating purpose
-Swann v. Charlotte-Mecklenburg Board of
Education
Conservative First Amendment
Doctrine
-link between Burger Court’s free speech decisions
and traditional property interests
-Burger Court respectful of free speech when it didn’t
conflict with property interests
-major concept that the primary office of civil liberties
is to safeguard property and contract.
-Spence v. Washington and First Bank of Boston v.
Bellotti
-Carey v. Brown and United States Postal Service v.
Council of Greenburgh Civic Associations
Personal Privacy as opposed to
equality
-heard cases based on personal privacy as
opposed to equality
-“autonomy” rather than “freedom”
-abortion: Griswold v. Connecticut overturns
Maher v. Roe
-First Amendment: Buckley v. Valeo
The Courts and Their
Generations
-Warren Court activist but its generation was
not
-The Burger Court and its generation were
activist
-Burger Court responsive to the breakdown of
the New Deal
-Court should be active in defense of the values
esteemed by the generation
In Conclusion
-leadership of Earl Warren
-Burger Court more activist than the Warren
Court
-personal property and personal privacy