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² See, generally, Murphy, Walter H., Elements of Judicial Strategy (Chicago: Chicago University Press, 1964).Google Scholar

³ See, generally, Fish, Peter Graham, The Politics of Federal Judicial Administration (Princeton, N.J.: Princeton University Press, 1973).Google Scholar

⁴ The Supreme Court employs not only its own press and printing staff but also its own police, besides caterers, cleaners, clerks and other clerical workers.

⁵ Since the decision of the Court is the majority's decision, authoritative determination of the Constitution or Federal Law requires only five votes, except, of course, when there is not a full bench. Only in circumstances where the Court is divided 5–4 and one of the majority needs replacing will a single new appointment be immediately crucial. Perhaps the classic instance of new appointments radically altering the substance of the Court's output was President Grant's successful nomination of Joseph P. Bradley and William Strong in 1870. Early in 1870, by 5–3, the Court found the Legal Tender Act unconstitutional; a new appointment and an increase in the size of the Court authorized by Congress, enabled this reverse itself to be reversed 5–4 at the end of 1871. Hepburn v. Griswold, 8 Wall., 603 (1870)Google Scholar and Knox v. Lee, 12 Wall., 457 (1871).Google Scholar

⁶ Implicit in the discussion at this stage is the assumption that one can sensibly talk about the Warren Court as a shorthand for a single, coherent body of decisions. See below, p. 184.

⁷ Mason, Alpheus T., ‘The Burger Court in Historical Perspective’, Political Science Quarterly, IXC (1974), 27–45.CrossRefGoogle Scholar

⁸ A splendid example of this is the opinion of William Douglas, the arch-activist in most people's books, for a unanimous court in Lassiter v. Northampton County Board of Elections, 360 US 45 (1959)Google Scholar, upholding a North Carolinian statute requiring electors of all races to be able to read and write any section of the state's constitution in English. ‘We do not sit in judgement on the wisdom of that policy’, he wrote, implying his doubts as to its wisdom.

⁹ See Yarborough, Tinsley E., ‘Litigant Access Doctrine and the Burger Court’, Vanderbilt Law Review, XXI (1978), 33–70.Google Scholar

¹⁰ Zahn v. International Paper Co., 414 US 291 (1973).Google Scholar

¹¹ Eisen v. Carlisle and Jacquelin, 417 US 156 (1974).Google Scholar

¹² Worth v. Seldin, 422 US 490 (1976).Google Scholar

¹³ Younger v. Harris, 401 US 37 (1971)Google Scholar; Huffman v. Pursue Ltd., 420 US 592 (1975)Google Scholar; Juidice v. Vail, 97 S. Ct. 1211 (1977)Google Scholar; Trainar v. Hernandez, 97 S. Ct. 1911 (1977).Google Scholar

¹⁴ Much of Felix Frankfurter's professed ‘self-restraint’ may have been a rationale, or cover, for his essentially conservative policy preferences on some matters. See Spaeth, Harold, ‘The Judicial Restraint of Mr Justice Frankfurter: Myth or Reality?’, Mid-West Journal of Political Science, VIII (1964), 22–38.CrossRefGoogle Scholar

¹⁵ Dahl, R. A., ‘Decision-Making in a Democracy: The Supreme Court as National Policy- Maker’, Journal of Public Law, VI (1957), 279–95.Google Scholar

¹⁶ For a recent discussion and updating of Dahl, see Casper, J. D., ‘The Supreme Court and National Policy Making’, American Political Science Review, LXX (1976), 50–63.CrossRefGoogle Scholar

¹⁷ When Mitchell, Ehrlichman and Haldeman appealed their convictions to the Supreme Court, certiorari was denied. Press reports suggested that Burger, Blackmun and Powell all voted for review, but it takes four votes for a petition actually to be granted. Rehnquist did not participate.

¹⁸ US v. Nixon; Nixon v. US, 418 US 693 (1974).Google Scholar

¹⁹ US v. US District Court, 407 US 297(1972)Google Scholar; Train v. City of New York, 420 US 297 (1975).Google Scholar

²⁰ Tennessee Valley Authority v. Hill, 98 S.Ct. 2279 (1978).Google Scholar

²¹ New York Times v. US, 403 US 713 (1971).Google Scholar Burger, who dissented, has been quoted as saying that on the substantive issue the Court was unanimous; see New York Times, 6 07 1971.Google Scholar Burger's dissent stressed the unseemly haste of the proceedings and the Court's ignorance of all the potentially relevant facts, difficulties which did not seem to worry him when faced with responding to a request to defer a nuclear test on Amchitka island.

²² Cook, Beverley Blair, ‘Sex Roles and the Burger Court’, American Politics Quarterly, V (1977). 353–94CrossRefGoogle Scholar; Johnston, J. D. and Knapp, C. L., ‘Sex Discrimination by Law: A Study in Judicial Perspective’, New York University Law Review, XLVI (1971), 675–747Google Scholar; Getman, Julius G., ‘The Emerging Constitutional Principle of Sexual Equality’, in Kurland, Philip B., ed., The Supreme Court Review 1972 (Chicago: Chicago University Press, 1973), pp. 157–80.Google Scholar

²³ Reed v. Reed, 404 US 71 (1971).Google Scholar

²⁴ Frontiero v. Richardson, 411 US 677 (1973).Google Scholar

²⁵ Craig v. Boren, 429 US 197 (1976).Google Scholar

²⁶ General Electric v. Gilbert, 429 US 125 (1976).Google Scholar

²⁷ Griswold v. Connecticut, 381 US 479 (1964).Google Scholar

²⁸ Roe v. Wade; Doe v. Bolton, 410 US 113 (1973).Google Scholar

²⁹ Bigelow v. Commonwealth of Virginia, 421 US 809 (1975)Google Scholar; Planned Parenthood of Central Missouri v. Danforth, 428 US 52 (1976).Google Scholar

³⁰ Beal v. Doe, 432 US 438 (1977)Google Scholar; Maher v. Roe, 432 US 464 (1977)Google Scholar; Poelke v. Doe, 432 US 519(1977).Google Scholar

³¹ Furman v. Georgia, 408 US 238 (1972).Google Scholar

³² Greg v. Georgia, 428 US 153 (1976)Google Scholar; Proffit v. Florida, 428 US 242 (1976)Google Scholar; Jurek v. Texas, 428 US 262 (1976)Google Scholar; Woodson v. North Carolina, 428 US 280 (1976)Google Scholar; Roberts v. Louisiana, 428 US 325 (1976).Google Scholar

³³ Coker v. Georgia, 433 US 584 (1977).Google Scholar See also the per curiam opinion confirming this principle (murdering on-duty policemen carried a mandatory death penalty) in Roberts v. Louisiana 431 US 633 (1977).Google Scholar

³⁴ A narrowly divided Court decided in 1977 that severe beating in schools did not infringe the fundamental respect for humanity now written into the Constitution. Stewart joined the Nixon quartet. Ingraham v. Wright, 97 S.Ct. 1401 (1977).Google Scholar

³⁵ Hadley v. Junior College District, 397 US 50 (1970).Google Scholar

³⁶ White v. Weiser, 412 US 783 (1973).Google Scholar

³⁷ Mahan v. Howell, 410 US 315 (1973).Google Scholar

³⁸ Connor v. Finch; Finch v. Connor; US v. Finch, 431 US 407 (1977).Google Scholar

³⁹ For example, Edwards, James M., ‘The Gerrymander and “One Man, One Vote”’, New York University Law Review, XLVI (1970), 879–99.Google Scholar

⁴⁰ O'Rourke, Terry B., Reapportionment: Law, Politics, Computers (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1972), pp. 73–98.Google Scholar

⁴¹ Harper v. Virginia State Board of Elections, 383 US 663 (1966) at 184.Google Scholar

⁴² San Antonio Independent School District v. Rodriguez, 411 US 1 (1974).Google Scholar

⁴³ Milliken v. Bradley, 418 US 717 (1974).Google Scholar

⁴⁴ Hills v. Gautreaux, 425 US 284 (1975).Google Scholar

⁴⁵ Washington v. Davis, 426 US 229 (1976).Google Scholar See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 US 252 (1977).Google Scholar

⁴⁶ As is argued by Phil Davies in ‘Jimmy Carter and the Black Constituency: The First Year’ (unpublished paper presented to the American Politics Group of the PSA, Warwick 1978), pp. 2–3.

⁴⁷ Castaneda v. Partida, 430 US 482 (1977).Google Scholar

⁴⁸ Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 US 748 (1976)Google Scholar; Hynes v. Mayor and Council of the Borough of Oradell, 425 US 610 (1976)Google Scholar; Buckley v. Valeo, 424 US 1 (1976).Google Scholar

⁴⁹ Gertz v. Robert Welch Inc., 418 US 323 (1974)Google Scholar; Time Inc. v. Firestone, 424 US 448 (1976).Google Scholar

⁵⁰ Regents of the University of California v. Bakke, 98 S.Ct. 2733 (1978).Google Scholar

⁵¹ Alexander v. Holmes County Board of Education, 396 US 19 (1969).Google Scholar

⁵² Argersinger v. Hamlin, 407 US 25 (1972).Google Scholar

⁵³ For example, DeFunis v. Odegaard, 416 US 312 (1974).Google Scholar

⁵⁴ Runyon v. McCrary, 427 US 160 (1976) at 189–92.Google Scholar

⁵⁵ Simon, James, In His Own Image: the Supreme Court in Richard Nixon's America (New York: MacKay, 1973).Google Scholar

⁵⁶ Miranda v. Arizona, 384 US 436 (1966).Google Scholar

⁵⁷ See, for example, Wasby, Stephen L., The Impact of the United States Supreme Court: Some Perspectives (Homewood, Ill.: Dorsey, 1970), pp. 147–69.Google Scholar

⁵⁸ Amsterdam, Anthony, ‘The Supreme Court and the Rights of Suspects in Criminal Cases’, New York University Law Review, XLV (1970), 785–815.Google Scholar

⁵⁹ Brewer v. Williams, 430 US 387 (1977).Google Scholar

⁶⁰ Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971).Google Scholar

⁶¹ Faretta v. California, 422 US 806 (1975).Google Scholar

⁶² US v. Ortiz, 422 US 891 (1975).Google Scholar

⁶³ Stone v. Powell; Wolff v. Rice, 428 US 465 (1976).Google Scholar

⁶⁴ Goldberg, Arthur, Equal Justice: the Supreme Court in the Warren Era (Evanston: Northwestern University Press, 1971), p. 93.Google Scholar

⁶⁵ Danelski, David, ‘The Influence of the Chief Justice in the Decisional Process of the Supreme Court’, in Murphy, Walter H. and Pritchett, C. Herman, eds., Courts, Judges, and Politics, 2nd edn. (New York: Random House, 1974), pp. 525–33.Google Scholar

⁶⁶ Brennan, William, ‘Chief Justice Warren’, Harvard Law Review, LXXXVIII (1974–1975), p. 1.Google Scholar

⁶⁷ For the latter antagonism, see numerous entries in Felix Frankfurter's diary: Lash, Joseph P., ed., From the Diaries of Felix Frankfurter (New York: Norton, 1975).Google Scholar

⁶⁸ See Ulmer, S. Sidney, ‘Earl Warren and the Brown Decision’, Journal of Politics, XXXIII (1971), 689–702.CrossRefGoogle Scholar

⁶⁹ The case was Caritativo v. California, 357 US 549 (1958).Google Scholar

⁷⁰ It must remain a matter of judgement how far the output of the Warren Court was due to any one of Black, Douglas, Warren, Clark or Brennan. I am tempted to believe that Warren's espousal of constitutional developments owed as much to Black's leadership as to his own previous commitment; Warren was more open to influence than Burger, since his background had been deeply political and not judicial, thus isolating him to some extent from the sort of problems he had to deal with. In a very real sense, then, it is appropriate to think of the Warren Court as the ‘Black Court’ (Snowiss, Sylvia, ‘The Legacy of Justice Black’ in Kurland, Philip, ed., The Supreme Court Review 1973 (Chicago: Chicago University Press, 1974), p. 251Google Scholar). The incorporation of virtually all of the Bill of Rights into the Fourteenth Amendment was very much Black's legacy so that Norman Dorsen's comment that ‘Hugo Black was a titan, an overarching figure who perhaps had a greater influence on constitutional development than any Supreme Court Justice save John Marshall’ may be an almost pardonable exaggeration (New York University Law Review, XLVI (1971), p. 649Google Scholar). But it still required someone like William Brennan or Earl Warren to put a majority together.

⁷¹ Snyder, Eloise, ‘The Supreme Court as a Small Group’, Social Forces, XXXVI (1958), 232–8.CrossRefGoogle Scholar

⁷² Kurland, Philip E., ‘Enter the Burger Court: the constitutional business of the Supreme Court, October Term 1969’, in Kurland, Philip E., ed., The Supreme Court Review 1970 (Chicago: University of Chicago Press, 1971), pp. 1–2, 91–2.Google Scholar

⁷³ See Lamb, Charles M., ‘The Making of a Chief Justice: Warren Burger on Criminal Procedure’, Cornell Law Review, LX (1974–1975), 743–88.Google Scholar

⁷⁴ Kalven, Harry, ‘The Supreme Court 1970 Term: Forward’, Harvard Law Review, LXXXV (1971–1972), p. 9.Google Scholar

⁷⁵ Howard, Philip K., ‘The Myth of Swing Voting: An Analysis of Voting Patterns on the Supreme Court’, New York University Law Review, L (1975), 798–868.Google Scholar

⁷⁶ See Mason, Alpheus T., ‘President by Chance, Justice by Choice’, American Bar Association Journal, LV (1969).Google Scholar For a much fuller study, see the same author's Howard Taft: Chief Justice (New York: Simon and Shuster, 1965).Google Scholar

⁷⁷ Burger's addresses are published annually in the American Bar Association Journal.

⁷⁸ Fish, , The Politics of Federal Judicial Administration, pp. 40–90, 228–339.Google Scholar

⁷⁹ Fish, , The Politics of Federal Judicial Administration, pp. 125–227.Google Scholar

⁸⁰ E.g. New Republic, 4 11 1972Google Scholar; New York Times, 27 04 1973.Google Scholar

⁸¹ See the exchange of notes between Warren Burger and the Speaker of the House of Representatives, Carl Albert, reprinted in Murphy, and Pritchett, , eds., Courts, Judges, Politics, pp. 273–5.Google Scholar Burger is not alone among Chief Justices to do this; see Murphy, , Elements of Judicial Strategy, Chap. 4.Google Scholar

⁸² Frank, John P., Marble Palace: the Supreme Court in American Life (New York: Alfred Knopf, 1958), p. 75.Google Scholar

⁸³ See generally Landever, Arthur R., ‘Chief Justice Burger and Extra-case Activism’, Journal of Public Law, XX (1971), 523–41.Google Scholar

⁸⁴ US News and World Report, 14 12 1970.Google Scholar

⁸⁵ US News and World Report, 14 12 1970, p. 44.Google Scholar

⁸⁶ Report of the Study Group on the Caseload of the Supreme Court (Washington, D.C.: Federal Judicial Center, 1972).Google Scholar

⁸⁷ The literature on the Freund Committee Report is now voluminous. For some critical comments, see: Hodder-Williams, Richard, ‘The Workload of the Supreme Court: A Comment on the Freund Report’, Journal of American Studies, X (1976), 215–39CrossRefGoogle Scholar; Goldberg, Arthur, ‘One Supreme Court’, The New Republic, 10 02 1973Google Scholar; Brennan, William, ‘The National Court of Appeals: Another Dissent’, University of Chicago Law Review, XL (1972–1973), 473–85Google Scholar; Ulmer, S. Sidney, ‘Revising the Supreme Court's Jurisdiction: Mere Administrative Reform or Substantive Policy Change’, Minnesota Law Review, LVIII (1973), 121–55Google Scholar; Gressman, Eugene, ‘The National Court of Appeals: A Dissent’, American Bar Association Journal, LIX (1973), 253–8.Google Scholar

⁸⁸ Roman Hruska, for instance, introduced legislation on 10 December 1975 to create a seven-man National Court of Appeals to hear cases that involved important and unresolved issues of federal law which the Supreme Court had not considered. Cases would come by referral from the Supreme Court itself or by transfer from the Federal Courts of Appeal.

⁸⁹ Burger served as a Federal Judge on the Court of Appeals for Washington D.C. and has a considerable record by which his jurisprudence can be judged. Since the subject matter of litigation before the Washington Court is more akin to that encountered in the Supreme Court than in other Courts of Appeal, his record has particular relevance to his actions as Chief Justice. According to Lamb, Burger became more conservative the longer he was an Appeals Court judge, perhaps as a reaction to the elevation of David Bazelon to Chief Judge, between whom it was widely acknowledged little love was lost (Lamb, Charles M., ‘Exploring the Conservatism of Federal Appeal Court Judges’, Indiana Law Journal, LI (1975–1976), 257–69).Google Scholar

⁹⁰ Congressional Quarterly Weekly Report, 17 04 1976, p. 911.Google Scholar

⁹¹ Landever, , ‘Chief Justice Burger’, p. 539.Google Scholar

⁹² Some academic observers (such as Miller, Arthur S., ‘Lord Chancellor Warren Earl Burger’, Society, X (03/04 1973), 18–27)CrossRefGoogle Scholar and some of the law clerks to whom I spoke in Washington in 1973 have been somewhat disparaging about his intellect. I was myself somewhat surprised to hear him credit Lord Bryce with de Tocqueville's celebrated observation that there is scarcely a matter which divides Americans that does not come to the courts for resolution.

⁹³ Pusey, Merlo J., Charles Evans Hughes (New York: Columbia University Press, 1951 and 1963).Google Scholar

⁹⁴ Mason, , Howard Taft.Google Scholar

⁹⁵ Mason, Alpheus T., Harian Fiske Stone: Pillar of the Law (New York: Viking, 1956)Google Scholar; Lash, , ed., The Diaries of Felix Frankfurter.Google Scholar

⁹⁶ Time (American edition), 11 12 1972.Google Scholar

⁹⁷ One of Justice John Paul Stevens's clerks suggested that this scheme was actually an added burden to the law clerks. The intimacy of chambers, he felt, made processing forty petitions for certiorari per fortnight less exhausting than processing fourteen in greater detail for five Justices, four of whom they^did not normally meet and hardly knew.

⁹⁸ Congressional Quarterly Weekly Report, 25 09 1976, p. 2612.Google Scholar

⁹⁹ For some examples under Warren, see Ulmer, S. Sidney, ‘The Use of Power in the Supreme Court: The Opinion Assignments of Earl Warren, 1953–1960’, Journal of Public Law, XIX (1970), 49–50.Google Scholar

¹⁰⁰ Anderson, Jack and Kalvelege, Carl, American Government (Like It is) (New York: Warner Paperbacks,. 1972), p. 108Google Scholar; Miller, , ‘Lord Chancellor Warren Earl Burger’, p. 22.Google Scholar

¹⁰¹ Washington Post, 14 07 1972Google Scholar; Time (American edition), 5 02 1973.Google Scholar This last reference was brought to my attention by one of Justice Douglas's law clerks, with the strong inference that it represented the truth.

¹⁰² Harvard Law Record, LVI (No. 7, 03 1973), p. 15.Google Scholar

¹⁰³ Rohde, David W. and Spaeth, Harold J., Supreme Court Decision Making (San Francisco: Freeman, 1976), pp. 172–92.Google Scholar

¹⁰⁴ Votes only determine the particular issue before the Court, to affirm or reverse the lower court's decision. The opinion will set out the reasoning and thus establish the principles upon which the particular decision was taken; the implications of a decision can thus be broad or narrow and the power of the assigner is consequently considerable if he can choose which of these two approaches is followed.

¹⁰⁵ Swann v. Charlotte-Mecklenberg Board of Education, 402 US 1 (1971).Google Scholar

¹⁰⁶ See Miller, , ‘Lord Chancellor Warren Earl Burger’, p. 20.Google Scholar It is easy to underestimate the doubt that exists in the minds of the Justices, even in those normally thought of as particularly ‘ideological’. See Howard, J. Woodford, ‘On the Fluidity of Judicial Choice’, American Political Science Review, LXII (1968), 43–56.CrossRefGoogle Scholar

¹⁰⁷ John Marshall often acted in this way and Charles Evan Hughes was another to follow this practice. See McElwain, E., ‘The Business of the Supreme Court as Conducted by Chief Justice Hughes’, Harvard Law Review, LXIII (1949–1950), 5–26.CrossRefGoogle Scholar

¹⁰⁸ Maidment, Richard, ‘Policy in Search of Law: Warren Court from Brown to Miranda’, Journal of American Studies, IX (1975), 301–20.CrossRefGoogle Scholar

¹⁰⁹ The analysis of Court leadership in this paper is merely a provisional and general sketch. I am hoping to return to this question more elaborately on another occasion. What is not considered here, for instance, is who other than Burger might be leading the Court.