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Rulings Displeased Both Right, Left : Burger Court Leaves an Unclear Legacy

July 07, 1986|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — The Burger Supreme Court, which comes to a close this week after 17 years, has pleased practically no one.

Conservatives, who had been counting on Chief Justice Warren E. Burger to reverse the judicial activism of the court under his predecessor, Earl Warren, got something less. The Burger court first sanctioned large-scale busing to desegregate schools and then, in a decision as strikingly activist as any of the Warren court rulings, said that women have a constitutional right to choose abortion.

Nor were the liberals satisfied with Burger. They complain that the Burger court undermined the rights of the accused, favored corporations and the wealthy over the poor and backed away from social goals such as the desegregation of public schools.

Even those who were looking for nothing more than clear enunciations of legal principles have been disappointed. On a host of vital questions such as freedom of speech, capital punishment and the role of religion in American society, the Burger court has left the law in a "muddle," said University of Virginia law professor A. E. Dick Howard. "They've careened from one result to another without establishing clear principles."

The general disappointment reflects the widely shared observation that Burger, despite his title, never established himself as the Supreme Court's dominant figure.

"The chief has not been a producer of memorable opinions and cares more for the administrative and ceremonial part of the job than the intellectual," said Stanford University law professor Gerald Gunther.

He predicted that Justice William H. Rehnquist, whom President Reagan named to replace Burger as chief justice, would bring the court "a much more formidable, intellectually conservative position."

Both Burger and Rehnquist were appointed by Richard M. Nixon, who sought to fill the court with "strict constructionists"--justices who would rule narrowly on legal questions and not use the court to expand rights not expressly granted by law or in the Constitution.

Nixon also named Harry A. Blackmun and Lewis F. Powell to the current court, and his Republican successor, Gerald R. Ford, appointed John Paul Stevens. Serving with them are two other Republican appointees, William J. Brennan (Dwight D. Eisenhower) and Sandra Day O'Connor (Reagan). For 11 years, the high court has had only two justices named by Democrats: Byron R. White, who was chosen by John F. Kennedy, and Thurgood Marshall, picked by Lyndon B. Johnson.

"We have rarely had a time with such a lopsided political control of the court," said Columbia University law professor Vincent Blasi. "We've gone 19 years since a Democrat has named a justice."

Yet, as Blasi argued in a 1983 book, the Burger court has been "the counterrevolution that wasn't."

"Most people predicted the Burger court to be very conservative, but that was plainly in error," said Jesse Choper, dean of the UC Berkeley Law School. "The problem was, they were always compared to the Warren court, which was the most liberal and activist court in our history. The most you can say is that they (Burger justices) called a halt to the liberal trend of the Warren court."

Nor has the Burger court been the voice of judicial restraint that Nixon sought, according to most legal scholars.

"This court expanded the judicial terrain into areas that the Warren court hardly touched--abortion, gender discrimination and capital punishment," Howard said. "These were striking, activist moves."

The Burger court was certainly not to Nixon's liking on the cases of deepest interest to him. It ruled against the Nixon Administration's attempt to stop the publication of the Pentagon Papers in 1971, and during the height of the Watergate scandal, it pushed Nixon over the brink when it ruled unanimously that he must turn over incriminating tape recordings to a District Court.

Swing Votes in Control

That kind of unpredictable result--the so-called "Nixon court" repudiating Nixon--has marked the Burger years, according to most scholars. With a strong liberal wing held down by Marshall and Brennan and an equally strong conservative faction anchored by Burger and Rehnquist, the outcome has depended on a number of swing votes.

Most of the Burger court's key decisions fell into a handful of controversial regions of the law:

SCHOOL DESEGREGATION: In perhaps its best known decision, the Warren court in 1954 declared racially segregated schools "inherently unequal" and, therefore, unconstitutional. But it left to the Burger court the actual desegregation of the schools.

In 1971, the justices ordered cross-town busing to desegregate the schools of Charlotte, N.C., a district once legally segregated. Two years later, the court upheld a broad busing plan in Denver, a city that had none of the Deep South's history of segregation, but where some school zones were rigged to isolate Latino students.

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