Great Men as Supreme Court Justices: Leadership and
Cohesion in the Warren and Burger Courts.-
Capstone PresentationCapstone Presentation
ByBy
Geoff WarrenGeoff Warren
The Warren Court (1953-69) The Burger Court (1969-86)
Would the liberal/activist doctrine of the Warren Would the liberal/activist doctrine of the Warren Court be struck by the more Conservative Burger Court be struck by the more Conservative Burger
Court?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 Burger Court lacked the cohesion marked by the Warren Court as well as the strong leadership the Warren Court as well as the strong leadership
provided by Earl Warrenprovided by Earl Warren..
The Warren Court
The Warren Court was an activist body that played the role of a “super The Warren Court was an activist body that played the role of a “super legislature.”legislature.”
-obscenity, school prayer, libel, criminal defendant rights, desegregation, -obscenity, school prayer, libel, criminal defendant rights, desegregation, gerrymandering, the right to privacy, and equal protection doctrine.gerrymandering, the right to privacy, and equal protection doctrine.
Liberal Wing
Earl WarrenEarl Warren
Hugo BlackHugo Black
William O. DouglasWilliam O. Douglas
Moderate Liberals
William J. BrennanWilliam J. Brennan
Arthur J. GoldbergArthur J. Goldberg
Conservative Justices
John Marshall HarlanJohn Marshall Harlan
Potter StewartPotter Stewart
Felix FrankfurterFelix Frankfurter
Charles E. WhittakerCharles E. Whittaker
Harold H. BurtonHarold H. Burton
Sherman MintonSherman Minton
Stanley F. ReedStanley F. Reed
Unclassified
Tom C. ClarkTom C. Clark
Byron R. WhiteByron R. White
Brown v. Board of Education
--Plessy v. Ferguson Plessy v. Ferguson
-“separate but equal”-“separate but equal”
-“not equal but separate”-“not equal but separate”
-majority decisions to unanimous decisions-majority decisions to unanimous decisions
Earl Warren
-forged coalitions-forged coalitions
-directed the evolution of law-directed the evolution of law
-compromise and consensus building-compromise and consensus building
The Burger Court
““Brain-child” of NixonBrain-child” of Nixon
The Warren Majority
Abe FortasAbe Fortas
Thurgood MarshallThurgood Marshall
William J. BrennanWilliam J. Brennan
William O. DouglasWilliam O. Douglas
Byron White*Byron White*
Hugo Black*Hugo Black*
Conservatives
Warren BurgerWarren Burger
Potter StewartPotter Stewart
John Marshall HarlanJohn Marshall Harlan
Harry A. Blackmun*Harry A. Blackmun*
William Rehnquist*William Rehnquist*
Lewis Powell*Lewis Powell*
John Paul Stevens*John Paul Stevens*
Sandra Day O’Connor*Sandra Day O’Connor*
Conference
-less time in Conference-less time in Conference
-less time for collective deliberation -less time for collective deliberation and consensus buildingand consensus building
-less agreement on Court rulings-less agreement on Court rulings
-greater number of separate opinions-greater number of separate opinions
Miller v. California
-assign a Justice to produce a -assign a Justice to produce a memorandummemorandum
-consensus formed and Justice picked -consensus formed and Justice picked to write opinionto write opinion
-sharpened confrontations between -sharpened confrontations between opposing policy preferences.opposing policy preferences.
-Burger and Brennan openly compete -Burger and Brennan openly compete for votesfor votes
-bare majority accepts Burger’s-bare majority accepts Burger’s
Warren Burger
-scorned by Warren holdovers as well as new -scorned by Warren holdovers as well as new appointeesappointees
-often unprepared for conference-often unprepared for conference
-willing to change position in conference just to -willing to change position in conference just to reach majorityreach majority
-product of the Nixon Whitehouse-product of the Nixon Whitehouse
Statistical Analysis
-The Burger Court from 1969-1980 averaged 138 institutional and -The Burger Court from 1969-1980 averaged 138 institutional and issued 43 separate opinions, 45 concurring opinions, and 105 issued 43 separate opinions, 45 concurring opinions, and 105 dissenting opinions.dissenting opinions.
-The Burger Court issued about two times the number of concurring -The Burger Court issued about two times the number of concurring opinions and 3 times the number of separate opinions.*opinions and 3 times the number of separate opinions.*
-Burger Court 52 days to complete an opinion and the Warren Court -Burger Court 52 days to complete an opinion and the Warren Court 35.35.
-Warren Court averaged 8 cases a year of 5-4 votes, the Burger Court -Warren Court averaged 8 cases a year of 5-4 votes, the Burger Court in first year 18.in first year 18.
-Between 1901 and the last year of the Warren Court, there were 51 -Between 1901 and the last year of the Warren Court, there were 51 cases decided by plurality opinion. The Burger Court handed down cases decided by plurality opinion. The Burger Court handed down 111 in total.111 in total.
Burger Court’s Passive Activism
-helped to solidify judicial activism by means of a -helped to solidify judicial activism by means of a passive course of decision makingpassive course of decision making
-reversals of Warren Court precedents never -reversals of Warren Court precedents never materializedmaterialized
--Brown v. Board of EducationBrown v. Board of Education, , Reynolds v. SimsReynolds v. Sims, , and and Miranda v. ArizonaMiranda v. Arizona still intact still intact
-“secondary” landmark precedents also intact-“secondary” landmark precedents also intact
--New York Times v. SullivanNew York Times v. Sullivan, , Griswold v. Griswold v. ConnecticutConnecticut, and , and Engel v. VitaleEngel v. Vitale
The Activist Burger Court
-became an activist court-became an activist court
-In 16 terms, the Warren Court invalidated -In 16 terms, the Warren Court invalidated 19 provisions of federal statues.19 provisions of federal statues.
-In the 1-In the 1stst through 13 through 13thth terms of the Burger terms of the Burger Court, it struck down 24.Court, it struck down 24.
--Buckley v. ValeoBuckley v. Valeo, , National League of Cities National League of Cities v. Useryv. Usery, and , and Northern Pipeline Northern Pipeline Construction Co. v. Marathon Pipeline Co.Construction Co. v. Marathon Pipeline Co.
Activism in Civil Rights
-continued Warren Court’s activism-continued Warren Court’s activism
-two recurring issues: the desegregation of urban -two recurring issues: the desegregation of urban school districts and the legality of racially school districts and the legality of racially discriminating effects in the absence of discriminating effects in the absence of discriminating purposediscriminating purpose
--Swann v. Charlotte-Mecklenburg Board of Swann v. Charlotte-Mecklenburg Board of EducationEducation
Conservative First Amendment Doctrine
-link between Burger Court’s free speech decisions -link between Burger Court’s free speech decisions and traditional property interestsand traditional property interests
-Burger Court respectful of free speech when it didn’t -Burger Court respectful of free speech when it didn’t conflict with property interestsconflict with property interests
-major concept that the primary office of civil liberties -major concept that the primary office of civil liberties is to safeguard property and contract.is to safeguard property and contract.
--Spence v. WashingtonSpence v. Washington and and First Bank of Boston v. First Bank of Boston v. BellottiBellotti
--Carey v. BrownCarey v. Brown and and United States Postal Service v. United States Postal Service v. Council of Greenburgh Civic AssociationsCouncil of Greenburgh Civic Associations
Personal Privacy as opposed to equality
-heard cases based on personal privacy as -heard cases based on personal privacy as opposed to equalityopposed to equality
-“autonomy” rather than “freedom”-“autonomy” rather than “freedom”
-abortion: -abortion: Griswold v. ConnecticutGriswold v. Connecticut overturns overturns Maher v. RoeMaher v. Roe
-First Amendment: -First Amendment: Buckley v. ValeoBuckley v. Valeo
The Courts and Their Generations
-Warren Court activist but its generation was -Warren Court activist but its generation was notnot
-The Burger Court and its generation were -The Burger Court and its generation were activistactivist
-Burger Court responsive to the breakdown of -Burger Court responsive to the breakdown of the New Dealthe New Deal
-Court should be active in defense of the values -Court should be active in defense of the values esteemed by the generationesteemed by the generation
In Conclusion
-leadership of Earl Warren-leadership of Earl Warren
-Burger Court more activist than the Warren -Burger Court more activist than the Warren CourtCourt
-personal property and personal privacy-personal property and personal privacy