The Burger Court, 1969-1986
Earl Warren’s successor, Warren Burger, a native of Minnesota, had been a judge of the Court of Appeals for the District of Columbia Circuit for more than a decade. He became Chief Justice in 1969.
One of the most famous of the Court’s rulings involving the conflict between religious freedom and state public schools came under Chief Justice Burger in 1972. It resulted in a victory for three Amish families in rural Wisconsin who were testing the guarantee of religious freedom. They had refused to send their children to public school beyond the eighth grade, asserting that modern secondary education was contrary to the Amish religion and a threat to their children’s salvation. “The Amish . . . have convincingly demonstrated the sincerity of their religious beliefs,” said the Court, and the children were free, after completing elementary school, to follow the centuries-old tradition of learning at home.
When the Internal Revenue Service declared in 1970 that private schools discriminating against blacks could no longer claim tax-exempt status, the action went largely unnoticed by the public. In 1983, it became prime-time news when two religious schools having admission policies based on race sought to regain tax-favored status and the case reached the Supreme Court.
Counsel for Bob Jones University and Goldsboro Christian School argued that their policies were based on sincerely held religious beliefs. But the Court ruled that the First Amendment did not prevent denial of tax-favored status. Eliminating racial discrimination in education substantially outweighed any burden placed on the free exercise of religion, according to the eight-to-one majority.
The Court also held in 1983 that reading a prayer at the opening day session of the Nebraska legislature did not violate the First Amendment’s establishment-of-religion clause. In another highly publicized case, a year later, it ruled that a Nativity scene displayed at Christmastime by the city of Pawtucket, Rhode Island, did not violate the Constitution. This extended the degree which government may use religious symbols to acknowledge the Nation’s heritage.
The long-standing controversy over religion in public schools took yet another form in 1985. The Court struck down an Alabama law that permitted a moment of silence in schools for prayer or mediation. Justice John Paul Stevens, speaking for the Court, said that the law had no secular purpose, but rather was designed to encourage students to pray.
Are religious groups free, under the First Amendment, to distribute literature other than in designated locations in state fairgrounds in disregard of rules applied to all exhibitors? The Court said no in 1981. Are privately owned shopping malls subject to free speech requirements as old-fashioned Main Streets are? In one case the answer was a qualified yes; in another, a qualified no.
Most Americans take freedom of speech and of the press as the most evident and absolute of rights, guaranteed by the First Amendment. Yet in the last three decades, the Supreme Court has been called upon to decide more cases concerning freedom of the press than in the previous 175 years. Controversies involving the press and the broadcast media are extensively reported by them, fairly in their own eyes and in those of some observers, not always so fairly in the eyes of others.
In the 1970s, the press was “subjected to a judicial battering that has been more serious and more fundamental, than the assaults that were mounted in more parlous days,” an attorney representing press interests asserted in a 1979 weekly magazine article.
Free to reply to such criticism when he retired from the Court in 1981, Associate Justice Potter Stewart said that the notion that “traditional protections are being ignored or disregarded or destroyed is a completely fallacious thought.”
Controversy over the Vietnam was at a peak when, on June 13, 1971, the New York Times began publishing installments of a secret, illegally obtained document concerning the United States’ conduct of the war. The government saw grave dangers to U.S. security in the publication of what became known as the Pentagon Papers, and sought injunctions to prevent both the Times and the Washington Post from further dissemination of the stolen information. Within two weeks the case reached the Supreme Court, which heard arguments on June 26 and announced its decision on June 30.
Once again, as it has through the years, the Court refused to countenance restraint prior to publication. In a brief decision, the Court observed that any system of prior restraint bears “a heavy presumption against its constitutional validity.” Each Justice filed a separate opinion; there were three dissents. Among the majority, Justice William J. Brennan denounced prior restraint in nearly absolute terms, but he conceded that in wartime there might be a “single, extremely narrow” class of exceptions. The three dissenters emphasized the “almost irresponsibly feverish” speed with which the case was disposed of; according to Justice John M. Harlan, it should have been conducted under full ground rules.
The Pentagon Papers were published and were a journalistic sensation at home and abroad; but the war in Vietnam went on.
Do news reporters have a right to confidentiality of their sources under the First Amendment? They argue that unless they can protect the identity of people who give them information under promises of secrecy, the sources will dry up.
Not so, said the Court in 1972, speaking through Justice Byron White; when a grand jury is seeking evidence concerning a crime, a reporter’s sources are not necessarily protected. If the reporter believes the testimony is not essential to the case, he or she may ask the court to issue a protective order; but the Court will decide.
Another controversial issue involving First Amendment protection came to the Supreme Court: the explicit treatment of sex in books, magazines, and motion pictures. In 1957 and again in 1966 under Chief Justice Earl Warren, the Court held that the First Amendment protects material challenged as pornography—even if the material might appeal to prurient interests and affront community standards— unless it is shown to be “utterly without redeeming social value.” This test proved difficult to apply in practice, and in 1973 the Court substituted a modified standard: There is First Amendment protection unless “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” At the same time, the Court held that pornography cases should be decided by trial courts on the basis of individual community standards, not national ones.
But in 1982 the Court unanimously upheld a New York criminal statute prohibiting the distribution of material depicting sexual activity by children under the age of 16.
“On the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland, Neb., a town of about 850 people.” This stark recital began the decision that resolved two potentially conflicting guarantees in the Bill of Rights in favor of the First Amendment.
The day after the grisly discovery, Erwin Charles Simants was arrested and soon charged with committing the murders in the course of a sexual assault. The media gave the crime sensational coverage.
The right to a fair trial in all criminal prosecutions is explicitly guaranteed by the Sixth Amendment. The Nebraska Supreme Court sustained a lower court order restricting media coverage on the grounds that prejudicial news stories would make a fair trial for Simants difficult, if not impossible, anywhere in the state.
Unanimously, the Nation’s highest court decided otherwise, again refusing to sanction prior restraint. The majority opinion affirmed the “explicit command” of the Constitution that “freedom to speak and publish shall not be abridged,” echoing the trenchant phases of Chief Justice Charles Evans Hughes half a century earlier in Near v. Minnesota.
Again and again, the Court has struck down state law and lower court decisions that attempted to limit publication. In 1974 it ruled unanimously that the state of Florida could not require a newspaper to grant a “right of reply” to a candidate for public office whom the paper had criticized in print. In effect, such a law would give the state some control over the newspaper’s content, a form of government compulsion the Court held unconstitutional.
In 1978 the Court determined that the Commonwealth of Virginia could not prohibit the accurate reporting of closed-door proceedings of a state commission inquiring into the conduct of a judge, a matter of “utmost public concern.” In 1979, however, it held that the press did not have an absolute right to be present at pretrial proceedings. It sustained the lower court’s exclusion of a reporter, saying that publication of the accused’s confession would prevent a fair trial. The decision brought a barrage of criticism.
Criminal trials themselves are another matter, the Court said in regard to a Virginia murder case a year later in 1979, when it held that the right of the public and the press to attend them is guaranteed by the First and Fourteenth Amendments. The right to be present was specifically extended, in a unanimous decision in 1984, to the jury selection process for criminal trials.
The right of defendants charged with felonies to be represented by counsel, regardless of whether they could afford it, was extended to all state courts in the highly publicized Gideon decision of 1963 under Chief Justice Earl Warren. Less widely known is the decision concerning Jon Richard Argersinger, who had been sentenced by a Florida court to 90 days in prison for carrying a concealed weapon. In responding to his appeal in 1972, the Court expanded the right to counsel well beyond Gideon. Under this holding, an accused person may not be sent to prison, even on a misdemeanor charge, unless represented by an attorney; and the state must provide one for indigent defendants.
The exclusionary rule highlights the controversy between advocates of the rights of persons accused of crime and champions of the right of a society to protect itself. This rule, established and refined by a series of Court interpretations over the years, is little understood by the public. Among judges, attorneys, scholars, and legislators, it is a keenly debated and divisive issue, and it is significant, often decisive, in the outcome of serious criminal cases.
The rule prescribes that evidence obtained by illegal means—including confessions obtained in violation of the Miranda warning requirement, conversations overheard through unauthorized electronic “bugging,” or tangible evidence such as drugs or weapons improperly seized—may not be used in trials.
But in recent years, while repeatedly upholding the Amendment against unreasonable search and seizure and the Miranda rule, the Court has modified their application in some respects. In 1984, in New York v. Quarles, it created a “public safety” exception to Miranda in circumstances where the public is in immediate danger, allowing police officers to ask questions to remove a threat without first informing an arrested person of his rights.
During the same term it adopted a “good faith” exception to the exclusionary rule. This allowed evidence to be used if police conducting the search reasonably relied upon a search warrant later determined to be technically defective.
A constitutional crisis seemed imminent on May 31, 1974, as the Watergate episode neared its climax. On that date, the Court granted a petition to hear a case whose outcome could lead to the impeachment of the President, and set July 8 for argument. The very name of the case spoke history and high drama: United States, Petition v. Richard M. Nixon, President of the United States.
The House of Representatives was already considering impeachment proceedings against President Nixon based on his part in a cover-up. Seven former members of his staff had been indicted on felony charges. They were accused of conspiring to obstruct justice by concealing White House involvement in the 1972 break-in at Democratic Party offices in Washington’s Watergate complex. The U.S. District Court ordered President Nixon to produce as evidence tape recordings and notes on 64 conversations that took place in the White House. The President refused to comply.
By 10:00 a.m. on July 8 it was evident that the 192 seats in the Court Chamber could not begin to accommodate the throngs who sought to witness this unique and critical passage in the life of the Republic. But more than 1,500 people attended at least part of the three hours of probing, measured, often quietly eloquent debate.
They heard the President’s advocate, James D. St. Clair, pressed by insistent questions from the Justices, defend the claim of absolute Presidential privilege and immunity from court orders. Even in a criminal conspiracy? Yes, said the President’s lawyer, “even if it’s criminal.”
They heard the Texas accents of Special Prosecutor Leon Jaworski as he invoked the constitutional power of the government to obtain evidence of a crime and also the structure of checks and balances. “Boiled down,” he declared, “this case really presents one fundamental issue: Who is to be the arbiter of what the Constitution says?”
Two weeks later, on a gray and muggy July 24, a tense crowd again filled the Court Chamber. As the hands of the clock marked 11, the traditional cry of “Oyez!” rang out. With somber dignity Chief Justice Warren Burger took note of the recent death of former Chief Justice Earl Warren, “our beloved colleague.” Then he went on to read in measured tones his opinion for a unanimous Court. For 17 minutes the audience strained to capture every word of the unequivocal finding: The President must surrender the tapes.
“Narrow,” some commentators called the decision. It was, in strongly reaffirming the separation of powers and the constitutional roots of executive privilege, but ruling that here the President’s privilege must yield to the demands of a fair trial, equally guaranteed by the Constitution.
“Broad,” others called it. It was, in reaffirming what Chief Justice John Marshall had said in Marbury v. Madison 171 years earlier—that it is “emphatically the province and duty” of this Court “to say what the law is.”
On August 9 President Nixon became the first chief executive in the Nation’s history to resign. Publication of three conversations of the disputed 64 had brought his Presidency to an end. At noon that day, Chief Justice Warren Burger administered the oath of office to Gerald R. Ford, the new President.
Woman’s rights have become such a dominant thread in the fabric of our political, social, and judicial life that it is hard to realize how recently this pattern was established. Not until 1971 did the Supreme Court first hold a government classification by gender unconstitutional; in the following years cases involving charges of sex discrimination have become a more commonplace item on the Court’s docket.
Decision by decision, the Supreme Court struck down laws that arbitrarily favored males over females. Starting with Reed v. Reed in 1971, the Court said that the choice of administrator for an estate “may not lawfully be mandated solely on the basis of sex.” In 1973, the Court invalidated a federal law that provided broader housing and medical benefits for males in the military than it did for females. In 1974 an equal-pay-for-equal-work statute was upheld.
In 1975, the Court was faced with another aspect of discrimination and decreed that widowers with small children are entitled to Social Security survivors’ benefits equal to those of widows in similar situations. Finally, in 1976, the Court held that discrimination against men was just as much a violation of the Constitution as discrimination against women. This decision involved an Oklahoma statute permitting women to buy beer at the age of 18 but denying men the same right until they reached the age of 21.
Not all decisions of the Court have satisfied feminists. In 1979 it upheld a Massachusetts law giving preference to veterans in state employment. Even though more men than women could take advantage of the provision, there was no intent to discriminate by sex, said the Court; women veterans were fully included. Justice Thurgood Marshall, joined by Justice William Brennan, dissented, saying “this degree of preference is not constitutionally permissible.” Then, on June 25, 1981, the Court upheld an all-male military draft registration law. The president of the National Organization for Women said the decision perpetuated “the myth of this country that all men are better than all women.”
Rapid social change has greatly affected the law in the area of sex discrimination. Again and again, the Supreme Court has made clear that the Constitution and laws do not permit discrimination on the basis of sex. In 1982, the Court held that a state university nursing school, which had historically admitted only women, could not exclude a male applicant simply on the basis of gender. In 1984, a unanimous Court held that a federal law banning discrimination based on sex and race was applicable to law-firm hiring and promotion decisions.
Affirmative action programs designed to redress discrimination based on race, religion, sex, or national origin have been repeatedly upheld by the Supreme Court, with some qualifications, since school segregation was outlawed in 1954 and a new Civil Rights Law was adopted by Congress in 1964.
The thorny issues involved have reached the Court in a stream of varied cases. One of the first to draw great national attention was that of “reverse discrimination” charged by Allan Bakke, which reached the high tribunal in 1977. Bakke, white, contested the denial of his admission to the medical school of the University of California at Davis, which reserved 16 of 100 places annually for minority candidates. Under this quota system, said Bakke, he had not been admitted, despite the fact that minority candidates with lower scores were accepted. He argued that this was a clear case of discrimination.
Bakke’s counsel told the Court that his client’s exclusion violated both the equal-protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The latter prohibits the exclusion of anyone on the basis of race or color from any program receiving financial assistance from the federal government.
The implications for minorities, for all student admissions policies, and for the future of civil rights legislation were portentous. News coverage and speculation reached an intensity unknown since the Nixon tapes case; some people saw the whole process of desegregation threatened if Bakke’s position were upheld.
On June 28, 1978, the Court spoke—to a crowded room and to an international audience beyond. That the Justices held strong individual views was clear; there were six separate opinions. By a vote of five to four, the Court determined that Allan Bakke should be admitted to the medical school at Davis. The Court also repudiated the school’s quota system as such, but permitted some consideration of minority status to achieve diversity in graduate and professional school education. Supporters of more categorical positions on both sides criticized the holdings; but, in the judgment of a distinguished legal scholar, they “accomplished the task of defusing tension in a country which had become taut with anticipation.”
A year later, by a five-to-two vote, the Court upheld affirmative action programs established by private employers and unions to end discrimination. In 1980 the Court narrowly sustained an act of Congress which set aside ten percent of local public works programs for a defined category of minority businesses. Toward the goal of equality of economic opportunity, the opinion said, Congress has the “necessary latitude to try new techniques such as the limited use of racial and ethnic criteria.”
But in two other decisions of 1984 and 1986, The Court ruled that white employees under a seniority system may not be laid off to protect the jobs of black workers hired under an affirmative action plan.
Abortion is one of the most emotional and divisive issues in contemporary America. The controversy reached the Supreme Court as a constitutional question in 1972; and on January 22, 1973, in what has been called a sweeping decision, the Court set limits on state power to prohibit or to regulate abortion. In deciding Roe v. Wade and Doe v. Bolton, it held prohibitory statutes in Texas and Georgia invalid, and with them the abortion laws of many other states.
Based upon its determination of when a fetus becomes viable, the Court ruled that for the first three months of pregnancy a state must leave the decision on abortion to the woman and her physician. For the stage beginning with the fourth month, the state may set regulations reasonably related to maternal health. Finally, for the stage after viability—around the seventh month—the state may prohibit abortion unless the mother’s health is endangered.
Two dissenters called this decision an “extravagant exercise of raw judicial power.” In the majority opinion, citing rights protected by the Ninth and Fourteenth Amendments, Justice Harry A. Blackmun acknowledged the Court’s full awareness “of the deep and seemingly absolute convictions that the subject inspires.”
As demonstrators made their views known with marches and banners near the Supreme Court and on the avenues of the city, the Court reaffirmed its landmark ruling 13 years later by a five-to-four majority. It struck down a Pennsylvania statute that admittedly was intended to discourage women from choosing abortions.
Illegitimate children are entitled to equal protection under the Constitution, the Court held in 1974, and struck down a section of the Social Security Act that denied benefits to some of them. From 1900 to 1969, the Court heard only six cases on the status of illegitimate children; since then it has heard more than twenty.
Most state and federal statutes governing legal relations between men and women and their offspring have long been based on conventional forms of marriage and divorce. But as the 1980’s began, hundreds of thousands of couples were choosing to live together outside of marriage, sometimes raising families and staying together over long periods of time.
Adopted children, now grown, are challenging state laws that have sealed their birth records, thus preventing them from learning the identity of their natural parents. Husbands are demanding alimony from wives, and in 1979 the Supreme Court struck down a state law that denied support payments from wife to husband.
In 1980 the Court was called upon to decide whether a new form of life, created from a combination of inanimate components could be patented. Eight years earlier a microbiologist, Ananda M. Chakrabarty of Schenectady, New York, had developed a bacterium capable of breaking down several components of crude oil. Naturally occurring bacteria were able to degrade only one product of genetic engineering, capable of mass production, and promised among its benefits more efficient and rapid control of destructive oil spills.
By a five-to-four vote, the Court held that Chakrabarty’s discovery represented a new and man-made form of life; that it constituted a “manufacture” or “composition of matter” as defined by the parent laws originally drafted by Thomas Jefferson; and that Chakrabarty’s rights as an inventor were entitled to protection. Warnings of hazards from genetic research were brushed aside by the opinion; these considerations, said the Court, should be presented to Congress.
“The most significant constitutional ruling since United States v. Nixon nine years earlier,” said a constitutional historian of an otherwise obscure immigration case decided in June 1983. This time the powers of Congress were at issue, going to the heart of the Constitution’s separation of powers among the executive, legislative, and judicial branches.
The case lacked the drama and popular interest of Watergate but was, said some observers, far broader in its effect. At stake was the constitutionality of the “Legislative veto,” a device used by Congress since 1932 in some 350 legislative acts. In nearly 200 laws still in effect, Congress had delegated powers to the executive branch while retaining the authority to veto the way in which the powers were exercised by departments, agencies, and commissions.
Jagdish Chadha, an Indian born in Kenya and holding a British passport, had been ordered to leave the United States after obtaining a university degree in Ohio. He appealed to the Immigration and Naturalization Service and eventually obtained permission to remain as a hardship case. But the House subcommittee reviewing a list of aliens seeking permanent residence disagreed and removed his name. Chadha fought back with the help of a law firm that appealed his case through the courts. Nine years later it reached the supreme tribunal.
The decision of Congress to deport Chadha was a legislative act, Chief Justice Burger held in his opinion for the Court, and the subcommittee’s “one-house veto” was unlawful. It violated “the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”
All legislation must be passed by both the House and the Senate and be presented to the President checks” on each branch and to maintain the separation of powers; “the carefully defined limits on the power of each Branch must not be eroded,” the Court said.
Justice Byron White, who was joined by Justice William H. Rehnquist in dissent, reading his opinion aloud from the bench to give it added emphasis, described the veto as “a central means by which Congress secures the accountability of executive and independent agencies.” The legislative veto, he said, is a useful invention for “the modern administrative state,” enabling Congress to delegate authority while retaining responsibility.
“Not since the New Deal collisions of the 1930s,” said one national publication, “had Congress felt so keenly the power of the Court to curtail its actions,” thus altering the “delicate balance” of power between the legislative and executive branches.
But the Court’s last words on the matter were definitive: “with all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”
Life itself is weighed on the scales of justice when a crime is punishable by death. On one side of the scales are the rights of the accused, protected in the body of the Constitution and in no fewer than five Amendments. On the other side is society’s need, loudly and frequently voiced in an era of mounting crime and violence, to deter and punish criminals.
On the constitutionality of capital punishment, the Court has spoken firmly in landmark cases. In Furman v. Georgia, announced on June 29, 1972, it found that the death penalty as applied in that case would be “cruel and unusual punishment,” forbidden by the Eighth Amendment. For 631 men and two women waiting on death row in 32 states, the decision brought hope for new sentences or new trials.
More than half the states moved to rewrite their statutes to conform with the decision. The rewritten laws also came up for scrutiny; and in 1976 the Court cleared the air and flatly rejected the claim that the death sentence is in itself always cruel and unusual punishment. The Court upheld three of the new laws and invalidated two others. It held that the Eighth Amendment requires the sentencing judge or jury to consider not only the crime but also the individual character of the offender, as well as any mitigating circumstances in the case.
The Court went a step further in 1977. In a case involving the rape of an adult woman, it found the death sentence “grossly disproportionate and excessive” and thus unconstitutional. Two Justices dissented strongly, characterizing rape as among the crimes constitutionally within the power of legislatures to make punishable by execution.
Since then a divided Court has refused to overturn the death penalty as such in a number of cases, with Justices Brennan and Marshall consistently dissenting from any imposition of capital punishment. However, in 1986 the Court held that the Eighth Amendment prevents states from executing insane convicts.
Partly because of cases pending in the Supreme Court, there were no executions in the United States from 1968 through 1976. In the eleven years following, under state laws revised to accord with Supreme Court rulings, more than 90 persons convicted of violent crimes were put to death.
When Warren Burger stepped down in 1986, he had served longer than any Chief Justice appointed in the 20th century. President Ronald Reagan, as several of his predecessors had done, turned to the Court itself for the new Chief Justice: He named William H. Rehnquist, an Associate Justice since 1972.