You Can’t Go Home Again

When Warren E. Burger succeeded Earl Warren as chief justice of the United States in 1969, many expected to see the more striking constitutional doctrines of the Warren years pulled back or even abandoned. The reapportionment cases, Brown v. Board of Education and other decisions against racial discrimination, the criminal-law decisions imposing what amounted to a code of fair procedure on the states, the cases enlarging the freedom of speech and the press: in these, it was often said, the Warren Court had launched a constitutional revolution. Now a counterrevolution was seemingly at hand.

It is fourteen years later as I write. Six members of the Warren Court are gone, replaced by nominees of Republican presidents: Nixon, four; Ford, one; Reagan, one. And what has happened to those controversial Warren Court doctrines? They are more securely rooted now than they were in 1969, accepted by the Burger Court as the premises of constitutional decision making. Of course particular results have swung away from the trend apparent before 1969; of course this decision or that has disappointed those who welcomed the changes of the Warren years. But there has been nothing like a counterrevolution. It is fair to say, in fact, that the reach of earlier decisions on racial equality and the First Amendment has been enlarged. Even the most hotly debated criminal-law decision, Miranda, establishing the right of a suspect to consult counsel before being questioned by police, stands essentially unmodified.

The Burger Court approved busing as a judicial remedy for school segregation. The Burger Court made the press virtually immune to “gag orders,” forbidding publication of stories about pending criminal cases, and said that newspapers could not be made to balance critical stories by publishing replies; it held unconstitutional a state tax imposed on newspapers alone and held for the first time that the press and the public have a right to observe certain public proceedings, in particular trials.

There was a decision day toward the end of the 1982 term that symbolized the commitment of the Burger Court to the spirit of the Warren doctrines. On May 24, 1983, the Court decided by a vote of eight to one that racist private schools are ineligible for tax exemptions because they are not “charitable” in the common-law sense of advancing agreed public policy. The opinion of the Court, rejecting arguments to the contrary by the Reagan administration, was written by Chief Justice Burger. “Racial discrimination in education,” he said, “violates a most fundamental national policy.” That same day Justice Sandra Day O’Connor, President Reagan’s appointee, wrote the opinion for a five to four majority holding that a state violated the due process clause of the Fourteenth Amendment when it revoked a convicted burglar’s probation for failure to pay a $550 fine without giving him alternatives to prison or showing that he had not made a bona fide effort to raise the money. This was an innovative decision squarely in the tradition of Earl Warren’s approach to criminal justice.

How has it happened, this extraordinary continuity of doctrine? Why have judges appointed by conservative presidents clung to the libertarian principles of the previous judicial generation and even enlarged upon them? These questions are evoked again and again in The Burger Court, a fascinating collection of analyses of the Court’s work since 1969.^*

An irony must be part of the answer. Conservative judges—meaning by that term those who are more cautious in lawmaking—are naturally committed to the doctrine of stare decisis. It follows logically that they should respect a precedent once established, even though they opposed that result during the process of decision. For such a true conservative as Justice John Marshall Harlan, this consideration was certainly a factor; he might warn in dissent against what he foresaw as the baleful effects of a decision, but he would hesitate thereafter to subject it to repeated litigation. He valued stability over perfection.

A psychological truism supports stare decisis. Yesterday’s surprise becomes today’s commonplace. That is true of life generally in a changing world and of judicial life in particular, for it is the nature of the judicial process in our legal system to use yesterday’s innovation as the accepted premise, the platform for further decision. Not only most judges but virtually all lawyers reason that way: they incrementally consolidate the past into the future. It is the lawyer’s way of thinking, taught in law schools.

Moreover, the public believes it is entitled to a certain reliance on constitutional decisions of the Supreme Court—and judges sense that. Reconsideration of doctrine in the light of changed circumstances is one thing; our view of race was different after Hitler from what it had been in 1896, when Plessy v. Ferguson was decided. But reconsideration after a few years because of the changing cast of judges is something quite different.

It is also true that doctrines seen as radical when they first appear in Supreme Court opinions have a way of turning out to feel familiar and right. The decision that state legislators and members of the federal House of Representatives must be elected from districts of roughly equal population did force a lot of change—but it was change quite acceptable to the public. The United States still has much racial injustice, and much hypocrisy on the subject, but few Americans would want to go back to the Plessy v. Ferguson rule and have the Supreme Court say that segregation in public facilities meets the Constitution’s demand for “the equal protection of the laws.” Probably the most bitterly disputed decision of the Burger Court is Roe v. Wade, the abortion case, which a majority reaffirmed during the last term. But if it were overruled by the Court itself or by constitutional amendment, would the American public easily accept now the criminal prosecution of women or doctors involved in abortions?

However conservative their political outlook, very few judges today are prepared to break boldly—radically—from prevailing constitutional doctrines. On the Supreme Court, only Justice William Rehnquist really goes back to first premises in his opinions and is willing to rethink doctrines in terms of a personal constitutional ideology. He is today’s equivalent of Hugo Black—at the other end of the judicial spectrum. Perhaps this is only a transitional period, and Justice Rehnquist will be joined by others as ready as he is to uproot established doctrine. Then the Burger years might be seen in history as no more than what Justice Holmes called “that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction.”

But as it stands, the Burger Court is doing what comes naturally to judges in the post-Warren era: trimming here and there, notably where egalitarianism looks to have costly consequences, but also building on the cases of the 1950s and 1960s when the spirit moves it—and doing so without any great concern for “self-restraint.” That was the approach so often advocated in dissent by Justice Felix Frankfurter, who remembered that willful conservative judges had brought the Court to the edge of disaster in 1937 in their resistance to the New Deal.

One thing to be learned from the essays in The Burger Court is that the great conflict of the 1930s and 1940s between judicial “restraint” and “activism” has become a matter of history. Today’s commentators on the Supreme Court are not survivors of the New Deal struggle, and neither are the justices. They comment and they decide without much self-conscious concern for whether they are keeping to a proper role for the Court.

We are all activists now. So The Burger Court tells us. Vincent Blasi, in his powerful summing up, suggests that this period in Supreme Court history will be seen as one in which judicial intervention came to be accepted—by judges and the rest of us—as a matter of course. The Court has used its power freely and frequently, striking down state and federal statutes without Frankfurterian apologetics about the role of judges. Professor Blasi notes that the willingness of the Supreme Court to declare acts of Congress unconstitutional has been viewed as a test of activism. (After all, it was fifty-four years from the first time the Court did so, in Marbury v. Madison in 1803, to the second—the Dred Scott case.) The Warren Court over sixteen years held nineteen provisions of federal law unconstitutional. The Burger Court had been sitting for thirteen years when Professor Blasi wrote, and in that time struck down twenty-four federal statutes in whole or in part. And then, at the end of the 1982 term, it held the legislative veto unconstitutional: a decision that could undo sixty or more acts of Congress.

Activists for what is a different question. Professor Blasi concludes, convincingly, that the Burger Court’s interventionism has not been programmatic, deriving from some ideological theme. It has lacked what he calls the energizing moral vision of the Warren years, with their emphasis on egalitarian ideals. The present Court acts strongly but pragmatically—one could use the less polite adverb “opportunistically”—reacting to events with moves in this direction or that, avoiding fundamental choices of values. Professor Blasi’s phrase for it is “rootless activism.”

There is a fine irony in the triumph of activism, and Martin Shapiro catches it in his essay in The Burger Court. When the Warren Court was boldly breaking new ground for constitutional social justice, it was sharply criticized by many of the leading academic commentators—who were of the self-restraint school. Nowadays, Professor Shapiro says, “The Court is activist and so are the commentators. Yet this generation of commentators is no happier with the present Court than its predecessor was with the preceding one.” Why? Because the old critics were products of the New Deal who knew what the conservative Supreme Court of the 1930s had done and could never be comfortable with strong-minded judges—even ones with a New Deal vision. The new critics did not inherit that fear of judges, but they want judges with more liberal convictions than prevail today. “In a world in which political goals are not clear and policy consensus is diminished,” Professor Shapiro says, “the Supreme Court is as unlikely as the rest of government to acquire a cheering section.” But at least, he thinks, we are better off arguing about the wisdom of what the Court has done than wishing it had been done by someone else.