You Can’t Go Home Again

When Warren E. Burger succeeded Earl Warren as chief justice of the United States in 1969, many expected to see the more striking constitutional doctrines of the Warren years pulled back or even abandoned. The reapportionment cases, Brown v. Board of Education and other decisions against racial discrimination, the criminal-law decisions imposing what amounted to a code of fair procedure on the states, the cases enlarging the freedom of speech and the press: in these, it was often said, the Warren Court had launched a constitutional revolution. Now a counterrevolution was seemingly at hand.

It is fourteen years later as I write. Six members of the Warren Court are gone, replaced by nominees of Republican presidents: Nixon, four; Ford, one; Reagan, one. And what has happened to those controversial Warren Court doctrines? They are more securely rooted now than they were in 1969, accepted by the Burger Court as the premises of constitutional decision making. Of course particular results have swung away from the trend apparent before 1969; of course this decision or that has disappointed those who welcomed the changes of the Warren years. But there has been nothing like a counterrevolution. It is fair to say, in fact, that the reach of earlier decisions on racial equality and the First Amendment has been enlarged. Even the most hotly debated criminal-law decision, Miranda, establishing the right of a suspect to consult counsel before being questioned by police, stands essentially unmodified.

The Burger Court approved busing as a judicial remedy for school segregation. The Burger Court made the press virtually immune to “gag orders,” forbidding publication of stories about pending criminal cases, and said that newspapers could not be made to balance critical stories by publishing replies; it held unconstitutional a state tax imposed on newspapers alone and held for the first time that the press and the public have a right to observe certain public proceedings, in particular trials.

There was a decision day toward the end of the 1982 term that symbolized the commitment of the Burger Court to the spirit of the Warren doctrines. On May 24, 1983, the Court decided by a vote of eight to one that racist private schools are ineligible for tax exemptions because they are not “charitable” in the common-law sense of advancing agreed public policy. The opinion of the Court, rejecting arguments to the contrary by the Reagan administration, was written by Chief Justice Burger. “Racial discrimination in education,” he said, “violates a most fundamental national policy.” That same day Justice Sandra Day O’Connor, President Reagan’s appointee, wrote the opinion for a five to four majority holding that a state violated the due process clause of the Fourteenth Amendment when it revoked a convicted burglar’s probation for failure to pay a $550 fine without giving him alternatives to prison or showing that he had not made a bona fide effort to raise the money. This was an innovative decision squarely in the tradition of Earl Warren’s approach to criminal justice.

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