NCJ Number
47642
Date Published
1977
Length
41 pages
Annotation
THE TRANSITION FROM THE WARREN ERA TO THE BURGER ERA IN U.S. SUPREME COURT HISTORY IS EXAMINED.
Abstract
ESSENTIALLY, THE BURGER COURT HAS TAKEN A LESS LIBERAL VIEW THAN ITS PREDECESSOR, THE WARREN COURT, OF PORNOGRAPHY AND DEFENDANTS' RIGHTS. SEVERAL OF ITS FREE SPEECH AND PREDECESSOR, THE WARREN COURT, OF PORNOGRAPHY, AND DEFENDANTS' RIGHTS. SEVERAL OF ITS FREE SPEECH AND PRESS DECISIONS, IF TAKEN AS A WHOLE SUGGEST A DOMINANT THEME OF IMPOSING ADDITIONAL BURDENS UPON CLAIMANTS IN FIRST AMENDMENT CASES, AND IT HAS RESTRICTED THE POWER OF THE FEDERAL COURTS TO INTERVENE IN STATE COURT PROCEEDING TO PROTECT THESE RIGHTS. IN ITS REFUSAL TO EXTEND CERTAIN RACIAL DISCRIMINATION DECISIONS, WHERE IT ARGUABLY EXISTED, AND EVEN IF RACIAL DISCRIMINATION CAN BE SHOWN IT MUST SIGNIFICANTLY INVOLVE THE STATE BEFORE THE BURGER COURT WILL ACT. AT A MORE FUNDAMENTAL LEVEL, THE BURGER COURT'S MORE RESTRICTED VIEW OF THE EQUAL PROTECTION CLAUSE HAS MANIFESTED A GROWING DISSATISFACTION WITH THE DOCTRINAL INSTRUMENT USED TO FASHION MUCH WARREN COURT POLICY, THE TWO-LEVEL APPROACH TO EQUAL PROTECTION ANALYSIS. THE BURGER YEARS HAVE ALREADY WITNESSED THE BEGINNING OF THE DECLINE OF SUBSTANTIVE EQUAL PROTECTION. IN ITS EFFORT TO CONFINE ACTIVE EQUAL PROTECTION REVIEW, THE BURGER COURT HAS BEEN UNWILLING TO CREATE NEW SUSPECT CATEGORIES AND HAD SOUGHT TO DEFINE FUNDAMENTAL INTERESTS MORE RIGIDLY. THE COURT HAS FREED POLICE TO CONDUCT EXTENSIVE SEARCHES OF SUSPECTS ARRESTED FOR MERE TRAFFIC OFFENSES, AND IT HAS RULED THAT, EVEN WHEN EVIDENCE HAS BEEN ILLEGALLY SECURED BY THE POLICE, IT MAY STILL BE USED IN RAND JURY PROCEEDINGS. IT HAS BROUGHT TO A HALT THE PROCESS OF EXTENDING TO THE JUVENILE COURT THOSE PROCEDURAL REQUIREMENTS APPLICABLE IN OTHER CRIMINAL PROCEEDINGS. IT HAS ENDED THE STEADY EXPANSION OF THE LAW GOVERNING THE RIGHT OF CONFRONTATION. IT HAS APPROVED WARRANTLESS USE OF BUGGED INFORMERS. IT HAS, IN SHORT, RATHER SEVERELY LIMITED THE EMERGING CONSTITUTIONAL DOCTRINES AFFECTING CRIMINAL PROCEDURE AND HAS EVIDENCED A DESIRE TO REVERSE THE TREND OF WARREN COURT DECISIONS. THE BURGER COURTS RESPONSE TO THE CONSTITUTIONAL PROBLEMS OF CRIME AND LAW ENFORCEMENT, DIFFERING AS IT HAS FROM THAT OF THE WARREN COURT, SEEMS ATTRIBUTABLE TO A DIFFERENCE IN PERSPECTIVE. THE BURGER MAJORITY HAS FOCUSED UPON THE OVERALL, SYSTEMATIC PROBLEM; THE WARREN COURT FOCUSED ON THE INDIVIDUAL. THE BURGER COURT'S DECISIONS ON RACE RELATIONS, REAPPORTIONMENT, CRIMINAL DEFENDANTS' RIGHTS, AND FIRST AMENDMENT FREEDOMS ARE NOTED AND DISCUSSED. SPECIFIC CASES ARE REFERENCED, AND THE ATTITUDES AND EFFORTS OF INDIVIDUAL JUSTICES ARE REVIEWED. NOTES AND A BIBLIOGRAPHY ARE PROVIDED. (KBL)