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The Burger Court was the period in the history of the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
from 1969 to 1986, when
Warren E. Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the William Mitchell College o ...
served as
Chief Justice of the United States The chief justice of the United States is the chief judge of the Supreme Court of the United States and is the highest-ranking officer of the U.S. federal judiciary. Appointments Clause, Article II, Section 2, Clause 2 of the U.S. Constitution g ...
. Burger succeeded
Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney and politician who served as the 30th governor of California from 1943 to 1953 and as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presid ...
as Chief Justice after Warren's retirement, and served as Chief Justice until his retirement, when
William Rehnquist William Hubbs Rehnquist (October 1, 1924 – September 3, 2005) was an American attorney who served as the 16th chief justice of the United States from 1986 until his death in 2005, having previously been an associate justice from 1972 to 1986. ...
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 The Warren Court was the period in the history of the Supreme Court of the United States from 1953 to 1969 when Earl Warren served as the chief justice. The Warren Court is often considered the most liberal court in U.S. history. The Warren Cou ...
to the conservative rulings of the Rehnquist Court. A symbol of the conservative "retrenchment" promised by President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 until Resignation of Richard Nixon, his resignation in 1974. A member of the Republican Party (United States), Republican ...
in the 1968 election, Burger was often overshadowed by the liberal William Brennan and the more conservative
William Rehnquist William Hubbs Rehnquist (October 1, 1924 – September 3, 2005) was an American attorney who served as the 16th chief justice of the United States from 1986 until his death in 2005, having previously been an associate justice from 1972 to 1986. ...
. 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.


Membership

In 1969, President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 until Resignation of Richard Nixon, his resignation in 1974. A member of the Republican Party (United States), Republican ...
appointed
Warren E. Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the William Mitchell College o ...
as the replacement for the retiring
Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney and politician who served as the 30th governor of California from 1943 to 1953 and as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presid ...
. Warren had attempted to retire in 1968, but President
Lyndon B. Johnson Lyndon Baines Johnson (; August 27, 1908January 22, 1973), also known as LBJ, was the 36th president of the United States, serving from 1963 to 1969. He became president after the assassination of John F. Kennedy, under whom he had served a ...
's nomination of Associate Justice
Abe Fortas Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rho ...
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. The Burger Court thus began on June 23, 1969, with Burger and seven veterans of the
Warren Court The Warren Court was the period in the history of the Supreme Court of the United States from 1953 to 1969 when Earl Warren served as the chief justice. The Warren Court is often considered the most liberal court in U.S. history. The Warren Cou ...
:
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an Associate Justice of the Supreme Court of the United States, ass ...
,
William O. Douglas William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1939 to 1975. Douglas was known for his strong progressive and civil libertari ...
,
John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish hi ...
, William J. Brennan Jr.,
Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who was an associate justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to criminal justice reform ...
,
Byron White Byron Raymond "Whizzer" White (June 8, 1917 – April 15, 2002) was an American lawyer, jurist, and professional American football, football player who served as an Associate Justice of the U.S. Supreme Court, associate justice of the Supreme ...
, and
Thurgood Marshall Thoroughgood "Thurgood" Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme C ...
. Nixon attempted to fill Fortas's vacant seat, but Nixon's nominations of
Clement Haynsworth Clement Furman Haynsworth Jr. (October 30, 1912 – November 22, 1989) was a United States federal judge, United States circuit judge of the United States Court of Appeals for the Fourth Circuit. He was also an Unsuccessful nominations to the Supr ...
and G. Harrold Carswell were both voted down by the Senate. Fortas's replacement,
Harry Blackmun Harold Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultima ...
, was finally confirmed in 1970; the 391-day vacancy was the longest since the 1860s (this was eclipsed by the 419 days between the death of
Antonin Scalia Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...
in February 2016 and the confirmation of
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. He was Neil Gorsuch Supreme Court ...
in April 2017). Black and Harlan both died in 1971, and Nixon replaced them with Lewis F. Powell Jr. and
William Rehnquist William Hubbs Rehnquist (October 1, 1924 – September 3, 2005) was an American attorney who served as the 16th chief justice of the United States from 1986 until his death in 2005, having previously been an associate justice from 1972 to 1986. ...
. Nixon considered Mildred Lillie for nomination, but according to former White House Counsel
John Dean John Wesley Dean III (born October 14, 1938) is a disbarred American attorney who served as White House Counsel for U.S. President Richard Nixon from July 1970 until April 1973. Dean is known for his role in the cover-up of the Watergate scan ...
, Chief Justice
Warren E. Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the William Mitchell College o ...
was deeply opposed to the idea of a woman on the court at the time. Burger threatened to resign over the nomination, and Nixon chose to nominate Lewis Powell rather than Lillie. In November 1975, Douglas retired after 36 years of service. He suffered a debilitating stroke on the last day of 1974 and was unable to return to the Court full-time. President
Gerald Ford Gerald Rudolph Ford Jr. (born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was the 38th president of the United States, serving from 1974 to 1977. A member of the Republican Party (United States), Republican Party, Ford assumed the p ...
, who had led an impeachment inquiry against Douglas in 1970 when he was the House Republican Leader, appointed
John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
to replace him. In July 1981, Stewart retired, and President
Ronald Reagan Ronald Wilson Reagan (February 6, 1911 – June 5, 2004) was an American politician and actor who served as the 40th president of the United States from 1981 to 1989. He was a member of the Republican Party (United States), Republican Party a ...
appointed
Sandra Day O'Connor Sandra Day O'Connor (March 26, 1930 – December 1, 2023) was an American attorney, politician, and jurist who served as an associate justice of the Supreme Court of the United States from 1981 to 2006. Nominated by President Ronald Reagan, O' ...
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. Rehnquist's Associate Justice seat was filled by Antonin Scalia.


Timeline


Other branches

Presidents during this court included
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 until Resignation of Richard Nixon, his resignation in 1974. A member of the Republican Party (United States), Republican ...
,
Gerald Ford Gerald Rudolph Ford Jr. (born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was the 38th president of the United States, serving from 1974 to 1977. A member of the Republican Party (United States), Republican Party, Ford assumed the p ...
,
Jimmy Carter James Earl Carter Jr. (October 1, 1924December 29, 2024) was an American politician and humanitarian who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party ...
, and
Ronald Reagan Ronald Wilson Reagan (February 6, 1911 – June 5, 2004) was an American politician and actor who served as the 40th president of the United States from 1981 to 1989. He was a member of the Republican Party (United States), Republican Party a ...
. Congresses during this court included 91st through the 99th United States Congresses.


Rulings of the Court

The Burger Court issued several notable rulings touching on many aspects of American life. Landmark cases of the Burger Court include: *'' 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 In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The ''Establishment Clause'' an ...
, and the court created the Lemon test to determine whether a law is constitutional under the Establishment Clause. *'' New York Times v. United States'' (1971): In a 6–3,
per curiam In law, a ''per curiam'' decision or opinion (sometimes called an unsigned opinion) is one that is not authored by or attributed to a specific judge, but rather ascribed to the entire court or panel of judges who heard the case. The term is La ...
decision, the court allowed ''
The New York Times ''The New York Times'' (''NYT'') is an American daily newspaper based in New York City. ''The New York Times'' covers domestic, national, and international news, and publishes opinion pieces, investigative reports, and reviews. As one of ...
'' and ''
The Washington Post ''The Washington Post'', locally known as ''The'' ''Post'' and, informally, ''WaPo'' or ''WP'', is an American daily newspaper published in Washington, D.C., the national capital. It is the most widely circulated newspaper in the Washington m ...
'' to publish the
Pentagon Papers The ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States in the Vietnam War, United States' political and militar ...
. In so doing, the court placed the concept of
freedom of the press Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic Media (communication), media, especially publication, published materials, shoul ...
above the Nixon Administration's claimed need to keep the papers secret for national security purposes. *''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a List of landmark court decisions in the United States, landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protected the right to have an ...
'' (1973): In a 7–2 decision written by Justice Blackmun, the court held that the right to privacy under the
Due Process Clause A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due proces ...
extended to a woman's decision to have an
abortion Abortion is the early termination of a pregnancy by removal or expulsion of an embryo or fetus. Abortions that occur without intervention are known as miscarriages or "spontaneous abortions", and occur in roughly 30–40% of all pregnan ...
. 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 ''Dobbs v. Jackson Women's Health Organization'', 597 U.S. 215 (2022), is a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court in which the court held ...
'' (2022). *'' Miller v. California'' (1973): In a 5–4 decision written by Chief Justice Burger, the court laid out the
Miller test The ''Miller'' test, also called the three-prong obscenity test, is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the Unite ...
, which the court continues to use as a definition for
obscene An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin , , "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral ...
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 Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and ot ...
protected all communications between Nixon and his advisers. The ruling was important to the
Watergate scandal The Watergate scandal was a major political scandal in the United States involving the Presidency of Richard Nixon, administration of President Richard Nixon. The scandal began in 1972 and ultimately led to Resignation of Richard Nixon, Nix ...
, and Nixon resigned weeks after the decision was delivered. *'' Milliken v. Bradley'' (1974): In a 5–4 decision, the court determined that
school desegregation In the United States, school integration (also known as desegregation) is the process of ending race-based segregation within American public, and private schools. Racial segregation in schools existed throughout most of American history and ...
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 The white flight, also known as white exodus, is the sudden or gradual large-scale migration of white people from areas becoming more racially or ethnoculturally diverse. Starting in the 1950s and 1960s, the terms became popular in the Racism ...
from urban to suburban school districts. *''
Gregg v. Georgia ''Gregg v. Georgia'', ''Proffitt v. Florida'', ''Jurek v. Texas'', ''Woodson v. North Carolina'', and ''Roberts v. Louisiana'', 428 U.S. 153 (1976), is a landmark decision of the U.S. Supreme Court. It reaffirmed the Court's acceptance of the ...
'' (1976): In a 7–2 decision written by Justice Stewart, the court held that the
death penalty Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence ordering that an offender be punished in s ...
did not always qualify as
cruel and unusual punishment Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdi ...
, 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. *'' Regents of the University of California v. Bakke'' (1978): No single opinion was able to win a majority of the court's vote in this case. Nonetheless, ''Bakke'' upheld the usage of
affirmative action Affirmative action (also sometimes called reservations, alternative access, positive discrimination or positive action in various countries' laws and policies) refers to a set of policies and practices within a government or organization seeking ...
in college admissions while disallowing the use of racial quotas. *'' Bob Jones University v. United States'' (1983): In an 8–1 decision written by Chief Justice Burger, the court allowed the
Internal Revenue Service The Internal Revenue Service (IRS) is the revenue service for the Federal government of the United States, United States federal government, which is responsible for collecting Taxation in the United States, U.S. federal taxes and administerin ...
to remove the non-profit classification of
Bob Jones University Bob Jones University (BJU) is a private university in Greenville, South Carolina, United States. It is known for its Conservatism in the United States, conservative and Evangelicalism in the United States, evangelical cultural and religious posit ...
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. The Burger Court upheld many of the precedents of the Warren Court, even in regards to
due process Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual p ...
and criminal law. 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. 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. During his time on the court, Blackmun shifted from the right towards the center and eventually the left, allowing liberals to claim more victories as the 1970s continued. 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. Nonetheless, Justice Brennan was often credited for winning the votes of the more centrist judges, especially Stevens, with his intellectual leadership. The large number of moderates on the court and the resulting decisions gave the court a paradoxical reputation for being both conservative and liberal. 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 The National Center for State Courts (NCSC) is an independent, non-profit organization focused on improving the administration of justice in the United States and around the world. Its efforts are directed by a 27-member board of directors and th ...
. 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 Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
of plaintiffs.


Appraisal

Law professor Michael J. Graetz and court journalist Linda Greenhouse characterize the Burger Court as conservative in many respects, handing down rulings that undermined ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
'' and other liberal precedents of the Warren Court. More prosaically, publisher
Larry Flynt Larry Claxton Flynt Jr. (; November 1, 1942 – February 10, 2021) was an American publisher and the president of Larry Flynt Publications (LFP). LFP mainly produces pornographic magazines, such as '' Hustler'', pornographic videos, and three p ...
, whose magazine '' Hustler'' was the subject of litigation in 1984, characterized the Burger Court as "nothing but eight assholes and a token cunt".


Gallery


References


Further reading


Works centering on the Burger Court

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Works centering on Burger Court justices

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Other relevant works

* * * * * * * * * * * * {{SCOTUS horizontal 1970s in the United States United States Supreme Court history by court