The Burger Court was a transitional institution. It reflected the conflicting currents produced by the transition from the America of John F. Kennedy and Lyndon B. Johnson to the America of Ronald Reagan and his successors. In some areas, it ranged well beyond the civil libertarian aspects of the Warren Court. At the same time, it engendered many of the conservative tendencies that were to prevail during subsequent decades under Chief Justice William H. Rehnquist.
The composition of the Burger Court reflected its nature. In its heyday, the Warren Court had comprised Chief Justice Earl Warren leading a slim but solid liberal majority of justices made up of Hugo Black, William O. Douglas, William J. Brennan, and at different times, Arthur Goldberg, Abe Fortas, and Thurgood Marshall.
By 1972, four new justices had been appointed—Chief Justice Burger, and Justices Harry Blackmun, Lewis F. Powell, and William H. Rehnquist—replacing the liberal Warren, Fortas, and Black, and the conservative John M. Harlan, respectively. Four years later Justice Douglas left, replaced by John Paul Stevens, and in 1981 the conservative Potter Stewart was succeeded by the first female justice, Sandra Day O’Connor.
The Supreme Court of the second half of the twentieth century was thus an accurate reflection of the nation: activist liberalism led by a slim liberal majority during the 1950s and 1960s, some additional liberal advances, and a gradual movement towards conservatism in the 1970s and 1980s, and vigorous conservatism in the 1990s.
The most controversial of the Burger Court decisions was Roe v. Wade (1973), which found that ‘‘the right of privacy founded in the Fourteenth Amendment’s concept of personal liberty’’ barred a state’s prohibiting women from terminating a pregnancy on the advice of their doctors. In a seven-to-two decision written by Justice Blackmun, with only Justices White and Rehnquist dissenting, the Court established a three trimester system: virtually no state regulation of the abortion procedure was permissible during the first trimester; ‘‘reasonable’’ regulation of abortion to protect the health of the mother was acceptable during the second trimester; and abortions could be prohibited during the last trimester unless the health of the mother was endangered by the pregnancy. In a companion case, Doe v. Bolton (1973), the same seven-to-two majority struck down state regulations of abortion that it deemed inconsistent with the right established in Roe.
The decision did not come out of nowhere. In 1965, the Warren Court had recognized a right of privacy for married couples to use contraceptives. Griswold v. Connecticut (1965). The year before Roe, the Court had extended the right to use contraceptives to single people in Eisenstadt v. Baird (1972), and for several years prior to Roe, lower courts and some state courts had also struck down abortion laws. Also, some states, notably California under Governor Ronald Reagan, and New York, had legislatively liberalized their abortion laws.
Nevertheless, the decision set off a firestorm of protest, particularly among some religious groups, and the Republican Party made overturning Roe v. Wade a central feature of its party platform. A substantial majority of the public accepted the decision, however, and wanted it retained.
Three subsidiary issues soon arose: public funding; the rights of minors to terminate a pregnancy without parental consent or notification; and state and local regulation of the abortion procedure.
Five years after Roe, the Court ruled that Connecticut did not have to use Medicaid funds for first trimester abortions, even if it chose to pay for childbirth or ‘‘medically necessary’’ abortions (Maher v. Roe ). Three years later the Court ruled that Congress may even bar Medicaid funding for medically necessary abortions (Harris v. McRae ).
Minors who sought to terminate their pregnancy without either notifying or obtaining the consent of either or both parents were allowed to do so, but only with court approval (Bellotti v. Baird , Planned Parenthood of Kansas City v. Ashcroft ).
As the abortion wars heated up and the anti-abortion forces gained strength, state and local governments adopted a wide array of regulations designed to make it more difficult for women to obtain an abortion and for abortion providers to operate. All were struck down by the Burger Court, over persistent dissents by Justices White, Rehnquist, and O’Connor, and increasingly Chief Justice Burger.
After Justice Powell’s departure in 1987, the justices unhappy with Roe v. Wade were in the majority, and in 1992 they cut back sharply on that decision while affirming its ‘‘central holding.’’ In Planned Parenthood of S.E. Pa. v. Casey (1992), Justices O’Connor, Anthony Kennedy who succeeded Justice Powell, and David Souter, who followed Justice Brennan, redefined the right established in Roe as the right not to be encumbered by ‘‘undue burdens’’ in obtaining an abortion. The state’s interest in potential life from the inception of the pregnancy was recognized, and the trimester system was abandoned. The plurality and the dissenters went on to uphold five of the six state regulations limiting abortion at issue, all of which had earlier been struck down, including provisions requiring waiting periods, favoring childbirth over abortion, and ‘‘informed consent;’’ only the requirement that a spouse be notified before an abortion was struck down. As of 2005, over four hundred state and local laws designed to make an abortion more difficult to provide and to obtain have been enacted.
During these years, homosexuals, among the most oppressed of American minorities, also tried to free themselves from the legal burdens they faced, especially laws that made sexual intercourse between members of the same sex a criminal offense. These laws were rarely enforced but could be used for blackmail and to justify employment and other disabilities.
By the mid-1980s, some twenty-six states no longer had such laws. Nevertheless, in 1986, the last year of Chief Justice Burger’s tenure, a five-to-four majority of the Court refused to strike down a Georgia sodomy statute (Bowers v. Hardwick ).
Bowers remained the law for seventeen years. During this period, many states repealed such laws or had them struck down by their highest courts. Finally, in 2003, the Court overruled Bowers and struck down a Texas law on due process grounds (Lawrence v. Texas ).
Religion has always played a central role in American life and politics. At the same time, the Constitution mandates a separation between church and state. Reconciling these two forces has resulted in a complex, often baffling series of Supreme Court decisions, a high proportion of which were issued during the Burger Court.
The difficulties and resulting inconsistencies appeared in the Supreme Court’s first decision on the use of public funds for aid to religious schools. In Everson v. Board of Education (1947), the Court, speaking through Justice Black, erected a ‘‘wall of separation between church and state’’ as a result of which, ‘‘[n]either [a state nor the federal government] can aid one religion, aid all religions, or prefer one religion over another.’’ Despite the apparent comprehensiveness of that statement, a five-to-four majority of the Court went on to approve New Jersey’s willingness to fund bus transportation for children attending religious schools. That inconsistency pervaded the many subsequent separation decisions.
Guiding principles were announced early in the life of the Burger Court by the Chief Justice in Lemon v. Kurtzman (1971): ‘‘First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’’’ In Lemon, the Court ruled that government may not fund salary supplements for teachers of secular subjects at religious schools or pay for their secular textbooks or other instructional materials or services, because that would ‘‘excessively entangle’’ the government in the administrative affairs of the church in order to ensure that the grant was not used for religious purposes. The chief justice also raised the dangers of political divisiveness because of religious strife over aid.
Although Chief Justice Burger sought to weaken the ‘‘wall of separation’’ metaphor by calling it ‘‘blurred, indistinct and variable,’’ the Court initially took a strong separationist position, holding that the Constitution bars the loan of maps, magazines, tape recorders, and laboratory equipment to parochial schools (Meek v. Pittinger , Wolman v. Walter ), as well as remedial and therapeutic services on parochial school premises (Aguilar v. Felton ). The Rehnquist Court later overruled these decisions in Mitchell v. Helms (2000) and Agostini v. Felton (1995). The Burger Court did, however, allow the state to provide standardized testing and diagnostic services even when done on religious school premises in Wolman. In Committee for Public Education v. Nyquist (1973), the Court had also refused to allow government-funded tuition rebates and tax deductions for attendance at nonpublic schools. Ten years later, however, in Mueller v. Allen (1983), a five-tofour majority held that a tax deduction for parents of children in all schools (public and nonpublic) for tuition, textbooks, and transportation was constitutionally permissible. Writing for the Court, then- Justice Rehnquist stressed that the aid was ‘‘channel [ed]’’ through the parents for the benefit of the child, rather than given to the schools, and was ‘‘neutrally available’’ to a broad spectrum of citizens. The prospect of religious strife was disparaged and the fact that 96 percent of the nonpublic schoolchildren went to religious schools was deemed irrelevant. In succeeding years, individual choice and neutrality became key factors.
With respect to higher education, the Burger Court took a less restrictive position right from the start. In Tilton v. Roemer (1971), and Roemer v. Board of Pub. Works (1973), the Court allowed states to provide money for building construction and for other non-sectarian activities because religious indoctrination was less likely either to be attempted or to be successful, given the nature of both the courses and the less impressionable nature of college students. In a case at the intersection of the establishment and free speech clauses, the Court allowed the speech clause to override separationist concerns. In Widmar v. Vincent (1981), the Court refused to allow a state university to deny a religious group use of the university’s facilities to meet for religious discussion and prayer. The university grounded its refusal on the establishment clause, but the Court rejected its defense and found that an ‘‘equal access’’ policy was required to avoid discrimination against religious speech, once the university created a public forum; the assistance to religion was deemed only ‘‘incidental.’’ And in one of the last Burger Court decisions, the Court unanimously agreed to allow state payment to assist a visually handicapped person who was studying to become a minister (Witters v. Washington Dept. of Service for the Blind ).
The Court also dealt with other forms of governmental religious involvement in public schools. In Wallace v. Jaffree (1985), the Court struck down an Alabama law that mandated a moment of silence for ‘‘meditation or voluntary prayer’’ because it was clear to seven of the nine justices (the chief justice and Justice Rehnquist dissenting) that the inclusion of ‘‘voluntary prayer’’ in the Alabama legislation was an ‘‘‘effort to return voluntary prayer’ to the schools.’’ And in Stone v. Graham (1980), for similar reasons, a five-to-four majority of the Court summarily refused to allow public schools to hang a copy of the Ten Commandments in public school classrooms, issuing a per curiam opinion without oral argument concluding that there was ‘‘no secular legislative purpose.’’
One of the Burger Court’s few important free exercise cases also arose in education. In Wisconsin v. Yoder (1972), a six-to-one majority concluded that the Old Order Amish, a religious order, could withdraw their children from the public schools after the eighth grade despite the state’s compulsory school attendance law. Since the Amish believe that their salvation ‘‘requires life in a church community separate and apart from the world and worldly influence,’’ the state’s interest in education was subject to strict scrutiny because it impinged on rights protected by the free exercise clause. The state could not meet that test because the Amish alternative of informal education achieved whatever goals the state sought to deliver with its compulsory school attendance.
Because religion has been so intertwined with public life in America, the Burger Court had to struggle with two other issues: religious worship in public bodies and displays of religious symbols on public property. In Marsh v. Chambers (1983), a six-tothree majority ignored the Lemon test and looked to history and tradition to allow the Nebraska legislature to open each legislative day with a prayer by a Presbyterian minister paid by the state. The following year, in Lynch v. Donnelly (1984), a five-to-four majority of the Court allowed Pawtucket, Rhode Island to erect a nativity scene in a local park at Christmas time. The Court called it an ‘‘accommodation’’ to religious belief that did not advance religion but ‘‘depict[ ed] the pastoral origins of this merely traditional event long recognized as a national holiday.’’ Both opinions for the Court were written by Chief Justice Burger, but the most influential opinion in the two cases was Justice O’Connor’s opinion in Lynch, in which she reinterpreted the effects prong of the Lemon test to focus on whether the government ‘‘endorsed’’ the religion in question. The O’Connor formulation, which was frequently used in subsequent years, reflected a persistent disenchantment with the Lemon test. Nevertheless, the test continued to be invoked throughout the Rehnquist Court era, although it was also often ignored and even criticized by many of the justices.
Since 1930, when the Supreme Court first struck down a statute for violating the free speech clause of the First Amendment, speech cases have accounted for a substantial portion of the Court’s docket. The Burger Court’s leading speech cases fall into four categories: electoral campaign financing; commercial speech; offensive speech including obscenity, pornography and vulgarity; and the rights of the press.
Perhaps the most perplexing speech issue to come before the Burger Court was its response to Congress’s effort in 1974 to limit electoral campaign contributions and expenditures in the wake of the Watergate scandals. In Buckley v. Valeo (1976) (per curiam), the Court ruled that although limitations on both forms of financing would reduce political speech and association, Congress could restrict contributions by individuals and groups, including political action committees, in order to avoid both the actuality and appearance of corruption; the Court later made an exception for individual contributions to a public interest group in connection with a proposed ballot measure (Citizens Against Rent Control v. Berkeley ). Expenditure limits, however, were struck down, including limits that Congress tried to impose on a candidate’s expenditure of personal funds. The Court found that unlike contribution limits, expenditure limits on explicit advocacy for or against a specific candidate—which is how the Court read the statute to avoid finding it unconstitutionally vague— ‘‘impose direct and substantial restraints on the quantity of political speech,’’ and were not justifiable; fiscally equalizing the electoral playing field was not an acceptable goal. Fourteen years later, however, the Rehnquist Court allowed Michigan to require the Chamber of Commerce and other business corporations to insist on a segregated fund for expenditures on elections for public office (Austin v. Michigan Chamber of Commerce ), although expenditures on referenda and similar issues could not be so limited (First National Bank v. Belloti ).
Overturning prior law, in 1976 the Court ruled that speech that ‘‘does no more than propose a commercial transaction’’ was entitled to constitutional protection unless it was false or misleading or against public policy (Va. St. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc. ). Restraints on such speech, however, including prior restraints, would not be subject to the most stringent level of judicial scrutiny— strict scrutiny—so long as the restraint advanced a substantial governmental interest and was no more extensive than necessary (Central Hudson Gas & Electric Co. v. P.S.C. of New York ). Commercial speech thus received less judicial protection than political, artistic, or other forms of speech, which were normally entitled to strict scrutiny protection. In later years, the Rehnquist Court further refined the Central Hudson test.
For over fifteen years, the Warren Court had struggled to define a limited category of speech that would be denied First Amendment protection because it could be categorized as ‘‘obscene.’’ The result was confusion. Finally, a newly constituted majority of the Burger Court ruled that expression would be considered ‘‘obscene’’ if ‘‘(a) . . . ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) . . . the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole lacks serious literary, artistic, political or scientific value’’ (Miller v. California ). Local juries would apply ‘‘contemporary community standards’’ to determine ‘‘pruriency’’ and ‘‘patent offensiveness.’’
Concerned about child abuse, the Court also refused to protect material that put children in sexually explicit settings even if the material would not be considered obscene under Miller (New York v. Ferber ). And though the Burger Court refused to allow the banning of ‘‘indecent’’ speech, regulating the location of adult movies houses was upheld (City of Renton v. Playtime Theatres, Inc. ). Also, the government’s power to regulate broadcasting was used to uphold Federal Communications Commission sanctions against a broadcaster for airing indecent speech (F.C.C. v. Pacifica Foundation ).
On the other hand, in Cohen v. California ), the Court refused to allow California to make it illegal to wear a jacket with the words ‘‘Fuck the Draft,’’ underscoring the principle that the state cannot deny protection to speech that is merely offensive, whether morally, aesthetically, or politically.
One of the Warren Court’s landmark decisions was New York Times Co. v. Sullivan (1964), in which the Court ruled that the First Amendment required a plaintiff in a libel case to prove that the defendant had defamed him with ‘‘actual malice—that is, with knowledge that it [the statement] was false or made with reckless disregard of whether it was false or not.’’ Ten years after the Sullivan case, the Court ruled that only ‘‘public figure’’ plaintiffs had to meet this demanding standard in Gertz v. Robert Welch, Inc. (1974); the states could define for themselves the standards for suits by private plaintiffs. It remained uncertain when a private citizen who is thrust into public prominence involuntarily would be considered a ‘‘public figure.’’ The Court later ruled that if defamatory statements do not involve matters of public concern, but only private matters such as a confidential credit report, they would not be subject to the Times v. Sullivan standard (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. ).
The Court consistently refused to grant the press privileges or protection unavailable to the general public. In 1972, it refused to create a privilege for journalists who were called before a grand jury and ordered to reveal information received confidentially or the source of the information (Branzburg v. Hayes ). In libel case litigation (Herbert v. Lando ), the Court required the press to open its files for a libel plaintiff suing under the Sullivan case, in order to enable the plaintiff to prove actual malice.
The press suffered other defeats at the hands of the Burger Court. In Zurcher v. Stanford Daily (1978), the Court denied a college newspaper any special protection against an ex parte warrant of the newsroom. In Pell v. Procunier (1974), the Court refused to require a prison administration to allow press interviews with individual inmates, and in 1978, it ruled that both the media and the general public could be denied any access to prisons and most other public institutions (Houchins v. KQED ).
The press did gain some significant victories from the Burger Court. The most celebrated victory came in the Pentagon Papers case, or New York Times Co. v. United States (1971), in which a bitterly divided sixto- three majority refused to allow the government to enjoin publication of a classified Defense Department study of the origins of the Vietnam War, declaring such an injunction to be an unconstitutional prior restraint. In Nebraska Press Ass’n v. Stuart (1976), the Court also found an unlawful prior restraint in a ‘‘gag order’’ against publication of an accused’s confession or admissions in a widely publicized murder case. On the other hand, a former government employee was enjoined from publishing information about official activities because he had signed an agreement not to divulge such information without government approval (Snepp v. United States ).
Finally, the print press was released from any obligation to allow a target of press criticism a right of reply in Miami Herald Pub. Co. v. Tornillo (1974). A year earlier, the Court had also allowed the broadcast networks to refuse to sell air time to the Democratic National Committee and others for political advocacy in Columbia Broadcasting System v. Democratic Nat’l Committee (1973), but Congress was allowed to mandate ‘‘reasonable access’’ to the air waves for federal political candidates in CBS, Inc. v. F.C.C. (1981).
The Burger Court’s shifting nature was also reflected in its decisions on the rights of prisoners. For decades, the federal courts had refused to exercise any oversight over prison conditions. As part of the increasing concern for social justice in the 1960s, however, the federal courts began to accept prisoner petitions filed under 42 U.S.C. } 1983, the 1871 Civil Rights law. In a summary opinion in 1972 decided without a signed opinion, the unanimous Court made it possible for prisoners to file their own suits, and set a high standard for dismissal of such suits (Haines v. Kerner ). The Court followed this up with decisions allowing suits challenging prison conditions to be filed in federal court without first exhausting state judicial and administrative remedies. In short order, the prisoner’s right to practice his religion was given protection, mail censorship was limited, arbitrary disciplinary procedures were changed, physical abuse and corporal punishment were condemned, prisoner expression within the institution received some protection, unnecessary visiting restrictions were voided, improvements in medical care were ordered, strip searches were limited, and parole procedures were improved. In many cases, the entire state system was condemned.
In 1974, the tide began to turn. Although prisoners continued to receive some protection, their right to fair procedures in disciplinary hearings was curtailed in Wolff v. McDounell. That same year, the Court upheld the authority of states to deny the right to vote to persons convicted of a felony, influencing elections for many years to come in Richardson v. Ramirez. In 1979, the rights of pretrial detainees were severely curtailed in Bell v. Wolfish. Although it was still possible to bring suits challenging brutal and inhumane conditions, as in Hutto v. Finney (1978), by 1986, there was a return to almost total deference to administrative discretion. In later years, the Rehnquist Court would extend such deference to more and more contexts, in the process limiting or overturning Burger Court precedents. Compare, for example, Lewis v. Casey (1996) with Bounds v. Smith (1978) (prisoners’ access to law libraries).
The transition to a more conservative federal judiciary initiated by the Burger Court is now complete. The Rehnquist Court developed and expanded many of the conservative doctrines originated during Chief Justice Burger’s tenure, and as this is being written, the Court is again being reshaped along conservative lines. Nevertheless, many of the advances in civil liberties made during Chief Justice Burger’s tenure and earlier are still in effect and will probably remain, if only because of the American judiciary’s respect for precedent. But predictions about the Supreme Court are notoriously unreliable, and the civil liberties legacy of the Burger Court is unpredictable.
References and Further Reading
Cases and Statutes Cited
See also Abortion; Access to Prisons; Accommodation of Religion; Amish and Religions Liberty; Birth Control; Burger, Warren E.; Campaign Finance Reform, No. 1021; Commercial Speech; Defamation and Free Speech; Equal Protection Clause and Religious Freedom; Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clause; Felon Disenfranchisement; Freedom of Speech and Press: Nineteenth Century; Freedom of the Press: Modern Period (1917–Present); Freedom of Speech and Press under Constitution: Early History (1791–1917);Gag Orders in Judicial Proceedings; Lemon Test; Miller Test; National Security Prior Restraints; Newsroom Searches; Obscenity; Politics and Money; Prisoners and the Free Exercise Clause Rights; Prisons and Freedom of Speech; Privacy; Public Vulgarity and Free Speech; Rehnquist Court; Rehnquist, William H.; Release Time from Public Schools (For Religious Purposes); Religious Symbols on Public Property;Reporter’s Privilege;Right to Reply and Right of the Press; Sodomy Laws; State Aid to Religious Schools; Subpoenas to Reporters; Ten Commandments on Display in Public Buildings; Warren Court; Warren, Earl