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

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.

The justices put a halt to plans for busing across district boundaries between Detroit and its suburbs in 1974. Since then, the Burger court has upheld desegregation orders from cities such as Dayton, Ohio, and Indianapolis, but has done so only when there is evidence of “intentional segregation” on the part of school officials. Just last month, in the first case of its kind, the justices refused to halt the dismantling of a busing program in Norfolk, Va.

FREEDOM OF SPEECH: The Burger court’s most notable decisions in this area extended the rights of those willing to use their money to make themselves heard.

In 1976, the justices struck down parts of the federal election laws enacted by Congress to put limits on campaign spending. It said that the “governmental interest in equalizing the relative ability of individuals (to) influence the outcome of elections” is “wholly foreign to the First Amendment.”

The same year, the justices threw out a Virginia law that prohibited pharmacies from advertising the prices of their products. The court concluded for the first time that “commercial speech, like other varieties, is protected” by the First Amendment.

Just last week, however, the court upheld a Puerto Rican law prohibiting casino owners from advertising on the island, a ruling that might be used to support bans on the advertising of tobacco and other products deemed harmful to the public.

The court has regularly upheld property rights over free speech. In 1972, the justices said that shopping center owners could stop anti-war demonstrators from passing out leaflets, and in 1981, they said that the Minnesota State Fair could ban leafleting by religious groups.

The court also ruled against protesters who dramatized the plight of the homeless by camping out in the park across the street from the White House, and political candidates who posted signs on public utility poles in Los Angeles.

This pattern led University of Chicago law professor Geoffrey Stone to denounce the Burger court, in a recent issue of the ABA Journal, for “selective activism.” The court, while upholding a corporate right to free speech, he wrote, “seems unable to grasp the fact that there are groups and individuals in our society who do not have large amounts of cash to spend on political campaigns and do not have ready access to television, radio, newspapers and other mainstream means of communication.”

ABORTION AND WOMEN’S RIGHTS: Where the Warren court made its mark by striking down laws that discriminated by race, the Burger court took the lead in knocking down distinctions based on sex. In 1971, the justices threw out an Idaho law requiring that executors of estates be male. In 1975, the Burger court, reversing a decision of the Warren court, declared that states could not bar women from juries.

In its single most controversial decision, the Burger court held, in Roe vs. Wade in 1973, that states may not prohibit abortion in the early stages of pregnancy. Although “not explicitly mentioned in the Constitution,” Blackmun wrote for a seven-member majority, the general “right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

He added, however, that “this right is not unqualified and must be considered against important state interests in regulation.”

State Limits Struck Down

Since then the justices, in bitterly divided rulings, have struck down state laws intended to regulate abortions, but the court has not required the federal government to pay for them. In 1980, it upheld the federal Hyde Amendment, which said that Medicaid could pay poor women’s medical fees for childbirth but not for abortions, except in cases of “rape or incest” or “where the life of the mother would be endangered.”

RELIGION--The Burger court has neither upheld the firm “wall of separation” between church and state, as envisioned by Thomas Jefferson, nor yielded to conservative demands that prayer be allowed in the public schools.

In 1971, the court struck down two state laws that paid the salaries of some parochial school teachers. Since then, the justices have invalidated a Kentucky law requiring the posting of the Ten Commandments in classrooms, and struck down a federal program that paid for reading tutors for poor children in parochial as well as public schools.

The court has tilted the other way on occasion. In 1983, it upheld Nebraska’s practice of keeping a chaplain on the legislative payroll, and in 1984, it permitted Pawtucket, R.I., to place a Nativity scene on government property.

Church-State Cases Pending

Two of the most difficult church-state issues are pending as Burger leaves: whether a law calling for “a moment of silence” in schools is constitutional, and whether Congress may give student religious groups equal access to school meeting rooms.

AFFIRMATIVE ACTION: The court, like the nation, has split over whether laws or policies that benefit minorities unfairly discriminate against others.

In the 1978 Bakke decision, five justices ruled that a highly qualified white student was discriminated against by the UC Davis Medical School because 16 admissions were set aside for generally less qualified minority students. But, with Powell joining the majority on both decisions, five justices also endorsed “race-conscious” policies that sought to overcome past discrimination.

In the next two years, the justices upheld a privately devised plan to give black trainees preference in hiring and upheld federal laws requiring that 10% of construction funds be spent with minority-owned contractors. In these two cases, the court concluded that “innocent” parties--white steel workers and white contractors--were not greatly harmed.

In cases involving Memphis firefighters in 1984 and Michigan schoolteachers in 1986, however, the justices overturned affirmative action plans that meant laying off white workers while blacks with less seniority kept their jobs.

Affirmative-Action Stance

Last week, the justices upheld lower court orders setting goals for promoting black firefighters in Cleveland and for hiring black sheet metal workers in New York. Those rulings seemed finally to clarify the court’s stance: in favor of affirmative action plans that have no immediately identifiable white victims, but opposed to plans that harm innocent whites, such as the Memphis firefighters and Michigan teachers.

DEATH PENALTY: In 1972, the court startled the legal world by striking down state death penalty laws. The court majority stopped short of saying that the Constitution’s ban on “cruel and unusual punishment” outlawed all capital punishment, and concluded merely that inconsistencies among the various state laws allowed for “arbitrary” and “freakish” results. Four years later, the court declared that states could execute criminals under a policy of “guided discretion.”

The next year, the court prohibited use of the death penalty for rapists and for accomplices who did not participate in a murder. By 1983, however, court sentiment had shifted so far that Burger complained that too many lawyers were appealing death verdicts repeatedly, in “calculated efforts to frustrate valid judgments.”

CRIMINAL LAW: The Burger court regularly voted against the rights of accused criminals and in favor of police and prosecutors, although scholars differ on whether the justices have merely whittled away at the rights recognized by the Warren court or substantially eroded them.

Stone said: “Nixon has achieved more of his agenda in this area than is generally recognized.”

Police Searches Liberalized

The court, for example, has limited the Fourth Amendment protection against “unreasonable searches and seizures” without a warrant. In 1973, it said that frisking a suspect was not a search as envisioned by the Constitution, and it held in 1981 that a police examination of the inside of a car was not such a search. Likewise, it has upheld police searches of bank records and of home telephone registers, and helicopter searches of private yards for marijuana.

The court also allowed several exceptions to the controversial 1966 Miranda ruling, which said police may not compel confessions from suspects. In 1971, the court said that a prosecutor could use an illegally obtained confession against a suspect who took the witness stand in a trial. And in 1984, the court held that police need not stop to read suspects their rights if a gun, knife, or bomb is present.

The Burger court took the lead in knocking down distinctions based on sex.