Great Men as Supreme Court Justices: Leadership and Cohesion in the Warren and Burger Courts.- Capstone Presentation By Geoff Warren.

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