The Burger Court

Warren Burger began his law career in Minnesota, where he was a member of a private firm until 1953. He was then appointed by President Eisenhower to serve as an assistant attorney general; in 1955 he was awarded a seat on the U.S. Court of Appeals for the District of Columbia Circuit, considered by many to be a way station en route to a seat on the Supreme Court. Burger's opportunity to join the highest court in the land finally came in 1969, when President Richard Nixon tapped him for the Chief Justice's chair formerly occupied by Earl Warren.

In his famous opinion in Marbury v. Madison, asserting the Supreme Court's power of judicial review, Chief Justice Marshall had declared that "it is emphatically the province and duty of the judicial department to say what the law is." Over 160 years later, the Supreme Court under Chief Justice Warren Burger was called upon repeatedly by political activists of all stripes to do just that.

Emboldened by the rulings of the activist Warren Court, liberals pressed to expand their legal victories into new areas. On the other hand, conservatives hoped that the presence of several new Republican appointees on the Court would help to overturn or restrict what they perceived to be the excesses wrought by the Warren Court. Accordingly, during Burger's tenure as Chief Justice, the Supreme Court issued rulings addressing such controversial issues as school busing, religious freedom, obscenity, abortion, capital punishment, affirmative action, freedom of the press, and homosexuality.

Probably the single most controversial decision of the Burger Era came in the 1973 case of Roe v. Wade, which challenged a Texas state law outlawing abortions except when the mother's life was in danger.

By a margin of 7-2, the Court determined that the constitutional right to privacy first announced in a 1965 case was applicable to a woman's decision to terminate her pregnancy. Dividing the nine months of pregnancy into three trimesters, Justice Blackmun, writing for the majority, declared that a woman had an unqualified right to obtain an abortion during the first trimester. Despite numerous efforts to overturn the Court's holding in Roe over the past three decades, it remains the law of the land.

Reflecting its ideological diversity, the Burger Court was often divided in its opinions concerning controversial social issues. However, one instance in which the Court spoke with a unanimous voice came in the landmark 1974 decision, United States v. Nixon. Amid growing pressure in the House of Representatives to begin impeachment proceedings, a federal district court ordered President Nixon to turn over tapes related to the Watergate scandal. Nixon refused, claiming the tapes were protected by executive privilege, and the case quickly went before the Supreme Court. Writing for the Court, Chief Justice Burger rejected Nixon's argument that the doctrine of separation of powers prevented the Court from reviewing the claim of executive privilege and quoted Marshall's statement from Marbury. After being forced to turn over the tapes, Nixon resigned the presidency two weeks later.