Burger Court's Tenth Year

Report Outline
Shift toward a Centrist Position
Formation of the Burger Court
Quest for Dominant Philosophy
Special Focus

Shift toward a Centrist Position

Strict Constructionism: Nixon-Ford Legacy

When the Supreme Court opens its fall term Oct. 2, it will mark the beginning of Chief Justice Warren E. Burger's tenth year on the court. Burger came to the post of chief justice with the reputation of a conservative, especially on questions of criminal law. He was an outspoken critic of the judicial activism that characterized the court under Chief Justice Earl Warren. President Nixon described Burger as a “strict constructionist” who would return the court to its proper role as interpreter rather than maker of law.

Burger was Nixon's first appointment to the court. His appointment, coming soon after Nixon took office in 1969, was followed by those of Associate Justices Harry A. Blackmun in 1970, and Lewis F. Powell Jr. and William H. Rehnquist in 1972, who all appeared to meet Nixon's strict constructionist and law and order criteria. So did John Paul Stevens, who was appointed to the court in 1975 by President Ford following the retirement of Justice William O. Douglas. With Douglas's departure only four members of the court remained who had served with Warren — William J. Brennan Jr., Potter Stewart, Byron R. White and Thurgood Marshall. Of the four, only Brennan and Marshall could be counted on to take the liberal side on most issues.

At a White House press conference on June 29, 1972 — the last day of the Supreme Court term — Nixon was asked if he now considered the court to be in balance. “I feel at the present time,” Nixon answered, “that the court is as balanced as I have had an opportunity to make it.” Not since Warren G. Harding had one president in his first term had the opportunity to appoint so many members of the Supreme Court. But Nixon's reshaping of the court did not have precisely the result he intended. As Charles Warren noted in 1926: “Nothing is more striking in the history of the court than the manner in which the hopes of those who expected a judge to follow the political views of the president appointing him have been disappointed.”