Reversing The Burger Court

In my new Civitas column, I explain how President Trump is, in many regards, refighting the war that was waged against President Nixon. In the process, Trump is butting against many precedents of the Burger Court, including United States v. Nixon and Train v. United States. I suspect that both of these cases would no longer command a majority of the Court.

Taking a step back, it is striking how many of the decisions by the Burger Court have been overturned in recent years, even as precedents of the Warren Court remain inviolable.

Consider some highlights (or lowlights, depending on your perspective).

1. Roe v. Wade (1973) was reversed by Dobbs v. Jackson Women’s Health Organization  (2022).
2. Board of Regents of California v. Bakke (1978) largely upheld the use of affirmative action policies. This decision was (basically) reversed by Students for Fair Admission v. Harvard (2024).
3. Lemon v. Kurtzman (1971) prohibited any “entanglement” between church and state. Kennedy v. Bremerton School District (2022) effectively overruled the Lemon test.
4. 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.
5. 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.
6. Ramos v. Louisiana (2020) overruled Apodaca v. Oregon (1972).
7. Franchise Tax Board of California v. Hyatt (2019) overruled Nevada v. Hall (1979).
8. Knick v. Township of Scott (2019) overruled Williamson County (1985).
9. Rucho v. Common Cause (2019) overruled Davis v. Bandemer (1986)

Most of the current Justices came of age when the Burger Court was in power. They perhaps see this Court as prone to reversal. I think Justice Thomas stated the issue well:

“At some point we need to think about what we’re doing with stare decisis,” Thomas said Thursday, referring to the legal principle of abiding by previous decisions. “And it’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think, turn off the brain, right?”

The Court’s senior conservative suggested that some members of the Court over the years have blindly followed prior judgments, comparing them to passengers on a train.

“We never go to the front see who’s driving the train, where is it going. And you could go up there in the engine room, find it’s an orangutan driving the train, but you want to follow that just because it’s a train,” Thomas said.

“I don’t think that I have the gospel,” he said, “that any of these cases that have been decided are the gospel, and I do give perspective to the precedent. But it should — the precedent should be respectful of our legal tradition, and our country, and our laws, and be based on something, not just something somebody dreamt up and others went along with.”

So who is the “orangutan” driving those trains?

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. He assigned Roe to Justice Blackmun and wrote the majority opinion in Lemon. Justice Rehnquist, appointed around the same time, was often the lone voice of reason.

To pile on a bit more, former-Chief Justice Burger described an individual Second Amendment right as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public.” The Supreme Court emphatically rejected Burger’s glib comment in District of Columbia v. Heller (2008).

Chief Justice Burger stepped down from the Court in September 1986. His resignation allowed President Reagan to promote William Rehnquist to Chief Justice, and appointed Antonin Scalia to the Supreme Court. In many regards, Burger’s departure ushered in the modern originalist revolution. If only Justice Powell had stepped down earlier, we would likely have never known of a Justice Kennedy.

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