The Warren, Burger and Rehnquist Courts compared.

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The Warren, Burger and Rehnquist Courts compared.
Warren
Burger
Rehnquist
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President Eisenhower appointed Earl Warren
(1953-69) President Nixon appointed Warren
Earl Burger (1969-1986) President Reagan
appointed William Rehnquist (1986-2005)
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Earl Warren

• Formerly Governor of California
• Chief Justice (1953 -1969)
• A Loose Constructionist
• Promoted judicial activism
• (the courts should have a role
• In shaping government policy
• especially regarding sensitive
• social issues)

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Seen as too liberal by many conservatives, there
were calls to remove Earl Warren from his
post. He also headed the investigation in to
the assassination of President Kennedy which
produced the famous Warren Commission report.
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Evaluation of the Warren Court

• Why would conservatives have reacted negatively
  to the overall record of the Warren Court ?
• Did the Warren court take the concept of judicial
  activism too far or did it address long overdue
  issues of legal reform ?

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Negative conservative reactions.

• The Warren Court kick-started the civil rights
  movement in 1954 with Brown vs Board of
  Education.
• Criticised as protecting the rights of criminals
  at the expense of law enforcement.
• Maintained a strict separation of church and
  state over religion prayer in public schools.
  Would have alienated conservative Christians.

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Judicial activism taken too far ?

• Warren Court made some highly political
  judgements which displeased conservatives but
  pleased liberal reformers.
• President Nixon promised in the 1968 election to
  appoint more strict constructionists to the court
  to redress the balance.

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Warren E. Burger

• Active Republican
• 1955, President Eisenhower appointed Burger to
  the U.S. Court of Appeals for the District of
  Columbia.
• Appointed by Nixon as Chief Justice
• "He left his mark on every facet of our judicial
  system," said Associate Justice Sandra Day
  O'Connor, who noted he was "kind and considerate"
  to her from her first day on the court, when he
  led her by the arm to face "the battery of
  press."
• She noted that he wrote more than 250 opinions,
  including landmark decisions that enhanced
  women's rights and strengthened the
  constitutional separation of powers.
• Supreme Court Chief Justice William Rehnquist,
  who succeeded Burger said, "I expected him to be
  stiff and formal, as I expected all chief
  justices were. I could not have been more wrong."
  

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The Burger Court

• Nixon had wanted a more conservative court.
• The Democrat controlled Senate rejected two of
  his nominees (Haynesworth And Carswell) as too
  conservative.
• Burger was an active Republican supporter and
  seen as a conservative successor to Warren but he
  did not reverse the direction of the court.

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Going off the reservation

• Presidents do not always get the Supreme Court
  justices they expect.
• The Burger Court passed Roe v Wade with a 7-2
  majority. It also ruled against the death
  penalty in furman v Georgia. Burger was
  conservative on gay rights.
• The court also upheld affirmative action cases
  (University of California v Baake in 1978)
• The Court also forced Nixon to hand over the
  Watergate tapes secret phone recordings made by
  Nixon during the Watergate Scandal.

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• Which of the Burger Court rulings can be
  characterised as loose constructionist ?
• Roe v Wade (interpreting the 14th Amendment right
  to privacy)
• Furman v Georgia (interpreting the 8th Amendment
  ban on cruel and unusual punishments

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How contradictory was the Burger Court ?

• How?
• Showed loose constructionism and judicial
  activism.
• However it made some conservative rulings.
• Why the contradiction ?
• Judges follow judicial reasoning and can set
  aside their political beliefs.
• The court always looks at past decisions or
  precedent (called stare decisis in Latin) and
  amicus curiae (evidence submitted by interest
  groups)
• Public opinion shifted to the right in the late
  70s and early 80s. The Supreme Court seems to
  have responded to this.

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The Rehnquist Court

• Reagan was determined to mould a truly
  conservative court after the disappointment of
  the Burger Court
• He appointed Rehnquist after Burgers retirement
  in 1986.
• Rehnquist is seen as the most conservative
  Justice of recent times.

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Bush v Gore in 2000
Hanging Chads
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The Rehnquist Court in 2001

• Ronald Reagan (R) appointed - 4
• George Bush (R) Senior appointed 2
• Gerald Ford (R )appointed 1
• Bill Clinton (D) appointed 2
• Since Rehnquists death in 2005 George W Bush (R)
  has appointed 2 (C.J. Roberts and Samuel Alito)
• See page 154 of Duncan Watts

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Limits on the Supreme Court

• The Supreme Court is always influenced by past
  rulings or precedents (as are British courts)
• These are often referred to by the Latin term
  stare decisis (stand by things decided).
• A past precedent seen as impossible to ignore is
  called a super-precedent or super stare
  decisis.

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"when you talk about judges who would change the
right of a woman to choose, overturn Roe vs.
Wade, I think confirmation (to the Supreme Court)
is unlikely. Republican Senator Arlen Specter,
Senate Judiciary Committee
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Some limits on the Supreme Court

• The Supreme Court has no enforcement powers of
  its own.
• The court can only judge cases brought before it.
  It cannot seek out cases of its initiative.
• It depends on its prestige and moral authority
  for its rulings to be obeyed.
• A too politically biased court would lose
  respect, credibility and therefore compliance.
• The Supreme Court in the Brown case was out of
  step with public opinion and the ruling needed
  federal troops to be enforced

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Comparison of the Warren, Burger, Rehnquist courts