Court Didn’t Shift to Right, Powell Says : Justices Under Burger Extended Liberal Rulings, He Declares

Justice Lewis F. Powell Jr., declaring there has been no “conservative counterrevolution” on the Supreme Court, today credited Chief Justice Warren E. Burger’s court with extending liberal rulings.

Powell, a member of the court for 15 years, said in a rare, public review of the court’s rulings that the Burger court extended liberal rulings made by the Warren court in such areas as separation of church and state and broken new ground in sex discrimination.

He also disagreed with critics who say the Burger court lacked direction, saying the great strength of the Supreme Court is that “we have no policy” or agenda.

In June, Burger announced he was stepping down after 17 years as chief justice. Justice William H. Rehnquist has been nominated to replace him.

Minority, Women’s Rights

Powell, considered a moderate and a “swing vote” on the high court, said he believes the Burger court did more to expand minority and women’s rights than its predecessor, the court led by liberal Chief Justice Earl Warren.

“However one defines the term conservative, there has been no conservative counterrevolution by the Burger court,” Powell said in a speech at the American Bar Assn. convention. “None of the landmark decisions of the Warren court was overruled and some were extended.”

Powell said the biggest expectation for the Burger court had been that it would reverse the criminal procedure decisions of the Warren era, such as the 1966 Miranda decision requiring police to inform suspects that they have a right to an attorney and a right to remain silent.

Decisions Let Stand

“The Burger court overruled none of these decisions,” Powell said.

However, legal scholars and others agree the Burger court narrowed the application of the Miranda decision and other Warren court decisions that protect the rights of criminal suspects.

And Burger was rarely able to put together a conservative majority on the court to rewrite the rulings of the Warren court, something Rehnquist and his replacement, conservative jurist Antonin Scalia, may be able to do.

In the area of race discrimination, Powell said the court has “not retreated” from the landmark Brown vs. Board of Education decision ending racial segregation.

Sexual Equality Gains

That ruling and others that followed bred a new problem of “reverse discrimination” that the Warren court did not have to tackle, he said.

Powell said the Burger court deserves all the credit for decisions removing barriers to sexual equality. While the Warren court upheld laws barring women from jury service, the Burger court overruled such restrictive statutes, legalized abortion and prohibited a state-funded nursing school from excluding men.

Powell said one of the greatest contributions of the Burger court has been in religious cases. “I believe it is fair to say that no prior court has been more zealous to assure separation of church and state and at the same time to protect the rights guaranteed by the Free Exercise Clause” of the First Amendment, he said.