The Final Days


The Final Days

The last days of the Burger Court seemed to summarize the course of its sixteen-year tenure: contentious, contradictory, at once reckless and cautious, deeply dividend and always unpredictable. Both its recent past as a guarantor of civil rights and personal liberties and its likely future as an advocate for state authority were contained in its present. If this Supreme Court did not direct public policy according to a shared vision of social progress, as its predecessor did, it accurately reflected the dilemmas of American society in the final quarter of the century: the unresolvd arguments, the unallayed fears, that unfinished business. We cannot know now for certain, but it appears that we have passed through a period of transition rather than a moment of movement.

In its final decisions before reorganization under a new Chief Justice, Court embroiled itself in political controversy to a dizzying degree. It threw out important sections of Gramm-Rudman-Hollings; it poked into local gerrymandering practices; and it checked out compliance with the Voting Rights Act and its most recent amendments. It narrowly upheld affirmative action plans in New York and Cleveland, and by implication rejected the Reagan Administration's theory that such strategies for reversing discriminatory behavior are themselves examples of "reverse discrimination."

But what got the biggest headlines and may well come to symbolize the final phase of the Burger regime was the decision in a case involving a homosexual in Georgia arrested for having sex with a consenting partner in his own bedroom. For three decades the American judicial system, with the Supreme Court at the head, has been extending the right to privacy under the Constitution to include noninjurious consensual behavior previously prescribed because of religious of moralistic scruples. Sexual matters, in particular, have been given a healthy airing out of the puritanical closet. In landmark decisions, courts have struck down laws against contraception, interracial marriage, and have affirmed a woman's right to an abortion.

The 5-to-4 decision in the Georgia "sodomy" case retreated from that progressive history. With the perverse passion of a medieval monk, Justice Byron White insisted that homosexual relations have no better claim on constitutional protection than "adultery, incest and other sexual crimes," or "the possession in the homes of drugs, firearms or stolen goods." Chief Justice Burger caught the Whizzer's pass and brought it over the line, concurring with eighteenth-century authorities that homosexuality is "the infamous crime against nature," an offense of "deeper malignity" than rape and, that old chestnut, "a crime not fit to be named."

The theoretical issue in the Georgia case was essentially the same as that in the Court's 1972 decision on abortion, Roe v. …

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