JOHN J. GIBBONS

This is the last essay in this book. Inevitably, some of what is said here has already
been discussed, but some of those thoughts seem worthy of reiteration.

This essay discusses the legacy of the Burger Court. Professor Schwartz chose
the topic, and I have been wondering, ever since he did so, just what it encom-
passed. If there is a legacy of the Supreme Court between 1969, when Chief Justice
Warren E. Burger was sworn in, and 1986, when he retired, it is not at all clear that
it is a Burger legacy. Certainly, the Chief Justice did not leave his imprint on the
Court as an institution in the way that John Marshall did. Unquestionably, there
was a Marshall legacy. Certainly, perhaps for the reasons mentioned by Professor
Tushnet, Chief Justice Burger did not exercise the kind of leadership of his col-
leagues that his immediate predecessor, Chief Justice Earl Warren, exercised-
leadership that earned him the accolade of "Super Chief." ¹ Of the thirteen Chief
Justices who proceeded Chief Justice Burger, perhaps only Marshall, Taney, and
Warren exercised such influence over their colleagues that the Court for their eras
became forever associated with their name. One does not hear, for example, of the
Ellsworth Court, or the Waite Court, or the Vinson Court. Even the eleven years
when the distinguished Chief Justice Charles Evans Hughes presided are more
likely to be referred to as the Court of the Nine Old Men.

Still, in the pantheon of Chief Justices, Warren Burger's place is certainly
higher than many of his predecessors, and perhaps the seventeen years during
which he presided will in the future commonly be referred to as the Burger Court,
if for no other reason than persistent media usage during those years.

In thinking about the legacy of the Court in that period, one is tempted to
focus, as most of the essays in this book have focused, on those decisions that dealt
with individual rights-the clash between claims of individual autonomy and the
collective society represented by the state or national governments. That focus is
appropriate because the protection of individual liberty is the Court's most impor-
tant function.

There is another group of cases, however, that do not resolve disputes between
individuals and governments but, rather, disputes among competing political orga-

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