Decision: How the Supreme Court Decides Cases

By Bernard Schwartz | Go to book overview

5
Burger Rebuffed

He looked, a reporter wrote, "as though he had been cast by Hollywood for the part of Chief Justice." With his snow white hair and broad shoulders, Warren E. Burger was an almost too perfect symbol of the law's dignity as he delivered his last Supreme Court opinion on July 7, 1986. What no one in the crowded courtroom realized was that the opinion announced by the Chief Justice was not the one that he had wanted to deliver. That opinion had been rejected by the Justices, and the manner in which they did so and induced Burger to rewrite his opinion to meet their views strikingly illustrates how the Court, rather than the Chief Justice, may control the decision process.


BURGER ON OLYMPUS

The great Chief Justices have all known how to make the most of the potential inherent in their position in the Court's center chair. We have just seen that this was notably true of Earl Warren. He brought more authority to the position of Chief Justice than had been the case for years, and the Warren Court bore the image of its Chief Justice as unmistakably as had the earlier Courts of John Marshall and Charles Evans Hughes. The high bench was emphatically the Warren Court.

This was not the case under Warren E. Burger. To be sure, Chief Justice Warren was a tough act to follow. But, even on its own terms, the Burger tenure was not marked by strong leadership in molding Supreme Court jurisprudence.

Burger may in appearance have been the casting director's ideal, but he was miscast when it came to leading the Court in the Marshall-Warren manner.

Burger himself was formed from a different mold than Warren. Although, as a reporter once pointed out, his "white maned, broad-shouldered presence on

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Decision: How the Supreme Court Decides Cases
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xiii
  • Introduction 3
  • Cases Covered 9
  • 1 - Rehnquist and Roe 12
  • 2 - Webster and the Decision Process 36
  • 3 - The Chief Leads the Court 65
  • Super Chief in Action 88
  • 5 - Burger Rebuffed 120
  • 6 - The Court Leads the Chief 135
  • 7 - Individual Justices Lead the Court 155
  • 8 - Vote Switches 178
  • 9 - More Switches, Near Misses, and Abortion 207
  • 10 - Civil Rights and Other Rehnquist Court Switches 237
  • 11 - Apotheosis of Mediocrity? 256
  • Table of Cases 263
  • Index 265
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