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The Burger Court
1969-1986
Membership, 1969 & 1986
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Burger (1969) R-MN
Black (1937) D-AL
Douglas (1939) D-WA
Harlan (1955) R-NY
Brennan (1956) D-NJ
Stewart (1958) R-OH
White (1962) D-CO
Fortas (1965) D-TN
Marshall (1967) D-NY
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Burger (1969) R-MN
Powell (1972) R-VA
Stevens (1976) R-IL
Rehnquist (1972) R-AZ
Brennan (1956) D-NJ
O’Connor (1982) R-AZ
White (1962) D-CO
Blackmun (1970) R-MN
• Marshall (1967) D-NY
Generalizations
• A preference for government over the
individual?
• A preference for executive over legislative
power?
• An enhanced concern for property rights?
• A diminished concern for political rights?
14th Amendment, ¶§ 1 [1868]
• All persons born or naturalized in the United
States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside. No state
shall make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.
Key Burger Court Cases
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Gravel v. United States (1972)
Doe v. McMillan (1973)
United States v. Nixon (1974)
City of New Orleans v. Dukes
(1976)
City of Philadelphia v. New
Jersey (1978)
Penn Central Transportation
Co. v. City of New York (1978)
Goldwater v. Carter (1979)
Hutchinson v. Proxmire (1979)
Kassel v. Consolidated
Freightways Corp. (1981)
• Minnesota v. Clover Leaf
Creamery Co. (1981)
• Nixon v. Fitzgerald (1982)
• City of Los Angeles v. Lyons
(1983)
• Immigration & Naturalization
Service v. Chadha (1983)
• Pacific Gas & Electric Co. v.
State Energy Resources
Conservation & Development
Commission (1983)
• Allen v. Wright (1984)
• Bowsher v. Synar (1986)
Equal Protection Tests
• Rational Basis – applicable to most governmental classification,
including economic. The burden of proof is on the challenging
party to demonstrate that the government could have no rational
basis for its discrimination–that it is arbitrary, capricious, and
patently discriminatory.
• Strict Scrutiny – applicable to suspect classifications, like race. [See
Korematsu] The burden of proof is on the government to
demonstrate that its regulation is essential to a compelling
governmental interest. As a practical matter, the burden is never
met. Scalia has said the only circumstances he could imagine would
be a race riot in a prison, where government might find it necessary
on a temporary basis to separate inmates by race.
• Intermediate Scrutiny – applicable to semi-suspect classifications,
like sex. Here the burden of proof is on the government to
demonstrate that its regulation is substantially related to an
important governmental interest, but “separate, but equal” is
permissible.
Preferred Freedoms
• All constitutional rights are not equal.
• Rights of speech, press, association, and assembly are so
fundamental to democratic processes that any legislation
infringing them must be accorded strict scrutiny [judicial
activism].
• Preference for the individual over the government when
government action intrudes on fundamental rights.
• Particular solicitude toward (a) individual political rights,
(b) the processes of democratic government, or (c) the
well-being of persistent minorities.
• Fundamental rights don't include the economic rights,
which were the darlings of the Lochner Court.