The Volokh Conspiracy
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Chief Justice Burger Set the Stage for the Originalist Revolution
While conservative criticisms of the Burger Court may be justified, those criticisms do not apply to the "The Chief." He had only one vote on the Court ... and, too often, too little support from his colleagues to reach originalist results.
My co-blogger Josh Blackman has an interesting post, observing that the current Roberts Court has largely left Warren Court precedents in place, while often undoing Burger Court precedents. Blackman's argument is well-made. But in concluding his post, Blackman diverts into an unnecessary attack on Chief Justice Burger. Blackman suggests it was Chief Justice Burger who was "driving those trains" that went off the tracks. As a former law clerk for "The Chief" (as we called him), I'm biased. But I believe Blackman's criticisms of The Chief miss their mark. Blackman fails to adequately consider the situation that The Chief all too often himself in—one vote on a nine-Justice court that was often inclined to reaffirm and even expand dubious Warren Court precedents. And, if he had joined or written dissenting opinions, the result would often have been that the case assignment would have then moved from him (as the senior, Chief Justice) to a very liberal justice, with an even worse decision likely emerging. Working within these considerable constraints, The Chief took important steps to help to set the stage for the later originalist revolution.
Blackman launches his attack by looking at nine decisions of the Burger Court that have since been reversed. For convenient reference, I reproduce Blackman's list below:
- Roe v. Wade (1973), reversed by Dobbs v. Jackson Women's Health Organization (2022).
- Board of Regents of California v. Bakke (1978), which largely upheld the use of affirmative action policies. This decision was (basically) reversed by Students for Fair Admissions v. Harvard (2024).
- Lemon v. Kurtzman (1971) prohibited any "entanglement" between church and state. Kennedy v. Bremerton School District (2022) effectively overruled the Lemon test.
- Abood v. Detroit Board of Education (1977) upheld the power of public sector unions to mandate certain dues from employees. Janus v. AFSCME (2018) overruled Abood.
- Chevron v. NRDC (1984) ruled that courts should defer to administrative agencies when a statute is "ambiguous." Loper Bright v. Raimondo (2024) overruled Chevron deference.
- Apodaca v. Oregon (1972) allowed non-unanimous juries. It was overruled by Ramos v. Louisiana (2020).
- Nevada v. Hall (1979) held that states lack sovereign immunity from private lawsuits filed against them in the courts of another state. It was overruled by Franchise Tax Board of California (2019).
- Williamson County Planning v. Hamilton Bank (1985) limited access to federal courts for plaintiffs raising Takings Clause claims. It was overruled by Knick v. Township of Scott (2019).
- Davis v. Bandemer (1986) held that claims of partisan gerrymandering were justiciable in federal court. It was overruled by Rucho v. Common Cause (2019).
After recounting these nine cases, Blackman writes that "I've heard it said that Chief Justice Burger could have done more on the Court if he had more conservative votes. I'm not so sure. Burger was in the majority of most of the overruled cases. … Justice Rehnquist, appointed around the same time, was often the lone voice of reason."
So let's look at this set of nine cases, with Blackman's argument in mind.
For this post, I consider what I understand to be Blackman's position—that The Chief should have driven the Supreme Court train in more conservative direction. Of course, that is not how The Chief would have resolved the case-specific issues before him in each particular case. But looking at these nine cases (as a reasonable sample of significant cases the Burger Court decided) reveals The Chief doing the best he could in difficult circumstances:
- Roe v. Wade - The vote count in Roe was 7-2 to recognize a penumbral constitutional right to an abortion. The Chief could have dissented, making the vote 6-3—and sending control over assignment of the opinion to Justice William O. Douglas. That approach likely would have led to an even more sweeping opinion. Instead, The Chief gave the opinion to his friend, Justice Harry Blackmun. It has been reported that The Chief was surprised by the broad opinion that resulted, as he expected a narrower, medically-focused decision. And The Chief wrote a concurring opinion in Roe that tried to limit the majority decision's scope: "I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices …. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand." Years later, on June 11, 1986 (just six days before announcing his retirement), The Chief would directly dissent from Roe. In Thornburg v. American College of Obstetricians and Gynecologist, The Chief lamented how the limitations sketched out in his Roe concurrence were ignored and called for the Court to "reexamine Roe." The Chief's call would, of course, ultimately bear fruit in Dobbs.
- Bakke (1972) - Here the Supreme Court largely upheld affirmative action policies. But this was by a 5-4 vote, with Justice Powell's plurality the controlling decision. The Chief was part of the four-vote main (and partial) dissent written by Justice Stevens, joining Justice Rehnquist and Justice Stewart. Justice Stevens (joined by The Chief) argued that "[t]he meaning of the Title VI ban on exclusion is crystal clear: Race cannot be the basis of excluding anyone from a federally funded program." Here again, The Chief's view of the proper result would ultimately become the majority view (under the Equal Protection Clause of the Constitution) in Students for Fair Admissions.
- Lemon v. Kurtzman (1971) - The Court vote to invalidate a Rhode Island statute providing aid to nonpublic schools was 8-0. The Chief could have been the lone dissenter. But that would have handed control of the opinion to Justice Hugo Black. Black joined Justice William O. Douglas in a sweeping concurring opinion rejecting any public aid to parochial schools—an approach that would might have become the majority opinion if The Chief had dissented. Moreover, although I'm not an expert on the doctrine, my understanding is that much of the problem with the Lemon test stemmed from the later endorsement-of-religion offshoot that was grafted onto the test after The Chief left the Court. A full assessment of The Chief's religious freedom jurisprudence would also need to consider his other important opinions, when he had more votes supporting religious claimants. In the next term, for example, The Chief wrote Wisconsin v. Yoder. Writing for six Justices, The Chief ruled that Amish parents' fundamental right to free exercise of religion outweighed the state's interest in educating their children. The Chief's opinion in Yoder continues to be influential to this day. Just last Term, the Court relied heavily on Yoder in its decision in Mahmoud v. Taylor. Writing for the majority, Justice Alito concluded that the burden on religion in that case (involving a public school's refusal to allow parents to opt their children out of LGBTQ+ inclusive storybooks) was of the "same character" as burden on religion in Yoder. Similarly, in 1983 case—Marsh v. Chambers—The Chief wrote for six Justices that government funding for legislative chaplains was constitutional, relying on the "unique history" of the United States. This was a proto-originalist decision that helped to lay the groundwork for future decisions focusing on original meaning.
- Abood (1977) - the vote count here was 9-0. A lone dissent by The Chief would have handed control of the Court's opinion to Justice Brennan. Instead, The Chief assigned the opinion to Justice Stewart, and joined Justice Powell's concurrence only in the judgment. (Justice Rehnquist, it should be noted, concurred and joined the majority opinion.)
- Chevron (1984) - the vote count here was 6-0. So a dissent by The Chief would not have changed the outcome. The Chief assigned the opinion to Justice Stevens. (Justice Rehnquist was recused.) The case is now mostly remembered for the deference paid to executive branch agency interpretations of the law. But the result in the case was to overturn a D.C. Circuit victory for the environmental group, the Natural Resources Defense Council. And Chevron only took shape and began to be used frequently after the 1987 Term (when The Chief had left the Court), as Professor Thomas Merrill has documented in a thorough article on the doctrine.
- Apodaca (1972) - Justice White upheld non-unanimous juries, in a plurality opinion joined by The Chief, Justice Blackman, and Justice Rehnquist. Apodaca was later overruled in Ramos (2020), over the strong dissent of Justice Alito, joined by Chief Justice Roberts, and (in large part) Justice Kagan. While Ramos might be viewed as a victory for originalism, I find much power in Justice Alito's dissent criticizing "a badly fractured majority cast[ing] aside an important and long-established decision with little regard for the enormous reliance the decision has engendered."
- Nevada v. Hall (1979) - The Chief joined dissents by Justice Blackmun and Justice Rehnquist, which Justice Thomas later tracked in overruling Hall.
- Williamson County (1985) - the vote count here was 7-1. The Chief handed the opinion over to Justice Blackmun, and joined it (along with Justice Rehnquist). The decision was overruled 34 years later in Knick. But the grounds Knick recited for overruling were "unanticipated consequences" that had revealed that the decision's requirements were "unworkable in practice."
- Davis v. Bandemer (1986) - this case involved a fractured decision, in which all the Justices concurred in part. The Chief concurred in the judgment with a short opinion (a "snapper" in his terms) emphasizing that partisan gerrymandering was not something that federal courts could readily redress. And he also joined Justice O'Connor's opinion concurring only in the judgment, along with Justice Rehnquist. The Chief's view would later be adopted in Rucho v. Common Cause, when Chief Justice Roberts held that "partisan gerrymandering claims present political questions beyond the reach of the federal courts."
Looking at these nine cases, I don't find much support for Josh Blackman's assertion that The Chief could have done more. For example, when Justice Rehnquist was on the Court with The Chief, the only time in these nine cases that The Chief differed from what Blackman calls the "lone voice of reason" was in Roe. But there The Chief's concurring vote kept the opinion away from Justice Douglas. And The Chief wrote what might be described as a "damage control" concurrence.
It remains an interesting issue whether a Chief Justice, convinced that the majority is wrong, should write a dissent that is the "voice of reason" or try to shape the majority in other ways. (For an illustration of how Chief Justice Rehnquist would later handle such a situation, take a look at his majority decision in Dickerson v. United States, reaffirming Miranda but on the narrowest possible ground.) In any event, as noted above, The Chief would later urge reexamination of Roe—providing strong criticism of Roe since he had originally concurred in the decision.
I had the privilege of clerking for The Chief during his last Term on the Court, OT85. That Term, on ideologically charged cases, The Chief needed to secure not only the vote of Justice Rehnquist, but also three other justices. That meant lining up Justice White (appointed by JFK), Justice Powell (an institutionalist who had served as the past president for the ABA), and Justice O'Connor (famously known for her case-by-case approach and seemingly unprincipled balancing tests). That was no easy task. And, if The Chief lost one of those three justices to a fairly solid voting block of liberal justices (Justices Brennan, Marshall, Blackman, and Stevens), that handed off the case assignment to Justice Brennan.
Criticisms of The Chief for not doing more to advance originalist jurisprudence also fail to account for state of constitutional jurisprudence—and constitutional litigation—when The Chief served. The modern originalist approach was launched by Attorney General Ed Meese's in his famous speech on original intent to the ABA on July 9, 1985—around the time The Chief was preparing to retire from the Court. (For an enthralling account of Meese's efforts to advance originalism, I highly recommend co-blogger Steven Calabresi and Gary Lawson's recent book, The Meese Revolution: The Making of a Constitutional Moment (2025).) Meese's proposed theory of "original intent" was cogently refined by then-Judge Antonin Scalia in an address to Justice Department, which explained that the appropriate approach was to determine the Constitution's "original public meaning." As Calabresi and Lawson recount, Scalia delivered this important speech on Saturday, June 14, 1986—two days before Scalia was interviewed by President Reagan for the Supreme Court vacancy about to be created by The Chief's retirement. Given that originalist theory was so little formed at the time, The Chief (and his colleagues) rarely received sophisticated originalist briefing in important cases.
Blackman recognizes the importance of Chief Justice Burger's sense of timing on his retirement. The Chief's retirement in the summer of 1986 allowed President Reagan to promote William Rehnquist to Chief Justice, and to appoint Antonin Scalia to the Supreme Court. Following the 1986 election, the Democrats regained control of the Senate. And when Justice Powell resigned in 1987, the Democrats were able to "bork" President Reagan's preferred choice to fill the vacancy—setting the stage for compromise candidate Justice Kennedy, whose many weaknesses Blackman and others have recounted. If Justice Powell had followed The Chief's lead, Supreme Court history might have been much different.
In sum, a fair reading of this history is that The Chief set the stage for the later originalist revolution, even if he lacked the tools—and the votes—to lead the revolution himself.
Correction: I corrected an inaccurate reference to Justice Brennan being the next senior-most Justice in Roe to Justice Douglas.
