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

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

2. The Warren Court (1953-69) The Burger Court (1969-86) Would the liberal/activist doctrine of the Warren Court be struck by the more Conservative Burger Court?

3. 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 Warren Court as well as the strong leadership provided by Earl Warren.

4. The Warren Court The Warren Court was an activist body that played the role of a “super legislature.” -obscenity, school prayer, libel, criminal defendant rights, desegregation, gerrymandering, the right to privacy, and equal protection doctrine.

5. Liberal Wing Earl Warren Hugo Black William O. Douglas

6. Moderate Liberals William J. Brennan Arthur J. Goldberg

7. Conservative Justices John Marshall Harlan Potter Stewart Felix Frankfurter Charles E. Whittaker Harold H. Burton Sherman Minton Stanley F. Reed

8. Unclassified Tom C. Clark Byron R. White

9. Brown v. Board of Education -Plessy v. Ferguson -“separate but equal” -“not equal but separate” -majority decisions to unanimous decisions

10. Earl Warren -forged coalitions -directed the evolution of law -compromise and consensus building

11. The Burger Court “Brain-child” of Nixon

12. The Warren Majority Abe Fortas Thurgood Marshall William J. Brennan William O. Douglas Byron White* Hugo Black*

13. Conservatives Warren Burger Potter Stewart John Marshall Harlan Harry A. Blackmun* William Rehnquist* Lewis Powell* John Paul Stevens* Sandra Day O’Connor*

14. Conference -less time in Conference -less time for collective deliberation and consensus building -less agreement on Court rulings -greater number of separate opinions

15. Miller v. California -assign a Justice to produce a memorandum -consensus formed and Justice picked to write opinion -sharpened confrontations between opposing policy preferences. -Burger and Brennan openly compete for votes -bare majority accepts Burger’s

16. Warren Burger -scorned by Warren holdovers as well as new appointees -often unprepared for conference -willing to change position in conference just to reach majority -product of the Nixon Whitehouse

17. Statistical Analysis -The Burger Court from 1969-1980 averaged 138 institutional and issued 43 separate opinions, 45 concurring opinions, and 105 dissenting opinions. -The Burger Court issued about two times the number of concurring opinions and 3 times the number of separate opinions.* -Burger Court 52 days to complete an opinion and the Warren Court 35. -Warren Court averaged 8 cases a year of 5-4 votes, the Burger Court in first year 18. -Between 1901 and the last year of the Warren Court, there were 51 cases decided by plurality opinion. The Burger Court handed down 111 in total.

18. Burger Court’s Passive Activism -helped to solidify judicial activism by means of a passive course of decision making -reversals of Warren Court precedents never materialized -Brown v. Board of Education, Reynolds v. Sims, and Miranda v. Arizona still intact -“secondary” landmark precedents also intact -New York Times v. Sullivan, Griswold v. Connecticut, and Engel v. Vitale

19. The Activist Burger Court -became an activist court -In 16 terms, the Warren Court invalidated 19 provisions of federal statues. -In the 1st through 13th terms of the Burger Court, it struck down 24. -Buckley v. Valeo, National League of Cities v. Usery, and Northern Pipeline Construction Co. v. Marathon Pipeline Co.

20. Activism in Civil Rights -continued Warren Court’s activism -two recurring issues: the desegregation of urban school districts and the legality of racially discriminating effects in the absence of discriminating purpose -Swann v. Charlotte-Mecklenburg Board of Education

21. Conservative First Amendment Doctrine -link between Burger Court’s free speech decisions and traditional property interests -Burger Court respectful of free speech when it didn’t conflict with property interests -major concept that the primary office of civil liberties is to safeguard property and contract. -Spence v. Washington and First Bank of Boston v. Bellotti -Carey v. Brown and United States Postal Service v. Council of Greenburgh Civic Associations

22. Personal Privacy as opposed to equality -heard cases based on personal privacy as opposed to equality -“autonomy” rather than “freedom” -abortion: Griswold v. Connecticut overturns Maher v. Roe -First Amendment: Buckley v. Valeo

23. The Courts and Their Generations -Warren Court activist but its generation was not -The Burger Court and its generation were activist -Burger Court responsive to the breakdown of the New Deal -Court should be active in defense of the values esteemed by the generation

24. In Conclusion -leadership of Earl Warren -Burger Court more activist than the Warren Court -personal property and personal privacy