Government by Judiciary

18. Liberals and the Burger Court

Judiciary_351-400.indd 8 5/7/11 1:13 PM 18 Liberals and the Burger Court LAMENTATIONS over the "regressive" course of the Burger Court in the field of civil liberties fill the air. The New York Times, for example, stated: "There was a time not so far distant when the United States Supreme Court was the staunch and ultimate defender of civil rights and liberties ... [T]he Court seems clearly to be beating a path of retreat from its once proud forward position in this delicate and difficult area of the relationship between citizen and state."1 Undoubtedly the Court is tilting the scales from what many regarded as excessive tenderness toward criminals;2 it is haltingly attempting to return some criminal administration to the States.3 But, as Leonard Levy points out, r. N .Y. Times, March JI, I976, at 36; see also Nathan Lewin, "Avoiding the Supreme Court," The New York Times Magazine, October I7, I976, at 31. 2. Edward R. Korman, "Book Review," 4 Hofstra L. Rev. 549, 556 (I976), refers to "the near hysterical response in certain quarters that accompanies every opinion of the 'Nixon Court' affirming the conviction of a murderer, rapist or robber." Professor Louis Jaffe stated that judges "have been insensitive to the public's need for a sense ofsecurity." "Was Brandeis an Activist? The Search for Intermediate Premises," So Harv. L. Rev. 986, rom (I967). 3· Cf. Stone v. Powell, 96 S. Ct. 3037 (I976), limiting the use of habeas corpus for review of state court convictions on the basis of illegally obtained evidence. "Between I937 and I96I the Court's constitutional rulings in criminal cases had rarely touched law enforcement and trial practices that were generally permitted by state law and were in widespread use." Lusky I 59·Justice Harlan, dissenting in Chapman v. Alabama , 386 U .S. I8, 46- 47 (I967), stated, "I regard the Court's assumption of what amounts to a general supervisory power over the trial of federal constitutional issues in state courts as a startling constitutional development that is wholly out of keeping with our federal system and completely unsupported by the Fourteenth Amendment where the source of such power must be found." A swing of the pendulum was acknowledged by Justice Lewis F. Powell in an address on August II, I976, before the American Bar Association convention. The changes were due to a " 'leveling off' in activism by the Judiciary_351-400.indd 9 5/7/11 1:13 PM Liberals and the Burger Court 359 "That the Nixon Court favored law-enforcement values" should come as "no surprise. Burger, Blackmun, Powell and Rehnquist got their seats on the bench because of their supposed or known lack of sympathy for the rights of the criminally accused."4 This, however, is only the latest of what G. E. White felicitously described as a "series of minor courtpacking plans."5 Now that a new set of predilections is displacing their own, libertarians who rejoiced in the "creative" role of the "wise and able men" are despondent. But the "revolutionary" changes in the criminal process6 by the Warren Court had not won the assent ofthe people.7 And it cannot be gainsaid that the Burger Court rulings in this area are closer to the original design than were those of the Warren Court. For, as we have seen, the Bill ofRights was not made applicable to the States, either by its framers or in the 39th Congress. Not that the Burger Court is abjuring lawmaking; its "six-man jury" decision furnished evidence to the contrary.8 It has not held that the Court has no business regulating State death penalties because the "cruel and unusual punishment" phrase of the Bill ofRights has no application to the States, or because, as ChiefJustices Warren and Burger and Justice Black stated, it did not encompass a death penalty for murder.9 Instead , in Gregg v. Georgia and companion cases it has weighed whether a death penalty is or is not a "cruel and unusual punishment" on an apothecary's scale.10 It would be inopportune to show in detail that the "strict constructionist" Burger Court clings as firmly to judicial goverCourt "; "a more traditional, and in my view, a sounder balance is evolving between the rights of accused persons and the right of a civilized society to have a criminal justice system that is effective as well as fair." N .Y. Times, August 12, 1976, at 18. 4· Levy, Against the...