Since 1969 the Supreme Court shifted gradually in a more conservative direction from what many saw as the liberal activism of the Warren Court. Under Chief Justice Earl Warren, the court championed civil rights and limited police powers, and restricted the power of states over such issues as birth control. President Richard M. Nixon vowed to change the course of the Court when he came into the White House in 1969.
When Chief Justice Warren retired in June 1969, Nixon responded by nominating Warren E. Burger, the first of four nominees to the Court, including Harry Blackmun, Lewis Powell, and William H. Rehnquist. Though Nixon expected the Court to become more conservative, it initially continued the liberal direction established by Warren. In 1972 the Court struck down the arbitrary application of capital punishment, especially for ethnic inmates, and prevented the administration from using electronic surveillance without a court order. In 1973 the other controversial decisions continued. Much to the dismay of some conservatives, the Court legalized abortion; upheld desegregation in northern schools; upheld the use of property taxes to support schools; and broadly defined obscenity. During the Watergate scandal the Court ruled against the president in United States v. Nixon (1974), forcing him to release tapes to the special prosecutor that ultimately led to Nixon’s resignation.
In 1975 Gerald R. Ford named John Paul Stevens, a moderate, to the Court. In 1976 the Court began to turn in a more conservative direction, striking down campaign spending limits; rejecting the power of Congress to force wage rates on state and municipal employees; and reinstating capital punishment. In the Regents of the University of California v. Bakke (1978), the Court ruled in a 5 to 4 decision that race could not be the sole factor in university admissions policies to law school.
When Jimmy Carter left the presidency in 1981, he became the first full-term president to not name a Supreme Court justice. In 1981 RONALD W. Reagan became president. Reagan saw the federal judiciary as too intrusive in the lives of Americans, deciding matters that should be decided by voters. Early in his first term Reagan named the first female justice, Sandra Day O’Connor. In 1986 Chief Justice Burger announced his retirement, and Reagan named Justice Rehnquist as his successor, and Antonin Scalia to Rehnquist’s seat. At the end of 1986, Justice Powell retired and Reagan nominated Robert Bork, who was rejected by the Senate after a vicious confirmation process. Reagan then nominated Anthony Kennedy, who was quickly confirmed.
Twice during his administration, Reagan pushed the court to overturn Roe v. Wade. Both times Roe v. Wade was reaffirmed, but the Court shifted under Sandra Day O’Connor’s leadership, away from a trimester standard to an “undue burden” standard for regulating abortion. The Court upheld affirmative action, in general, and relaxed its view on the separation of church and state.
The appointment of Justice Kennedy marked a definite shift in the direction of the Court. Kennedy, along with Justices Scalia, O’Connor, Byron R. White, and Rehnquist established a moderate to conservative majority on the Court, although O’Connor and Kennedy often proved to be swing votes on the Court. In 1989 the Court struck down a set-aside plan from Virginia that required 30 percent of city construction funds to go to black-owned firms. By a 6-3 margin, the Court found the plan too rigid and not justified.
During this period the Court sought to balance the needs of employer and employee. In criminal law, the Court adopted a tougher stance, allowing the execution of criminals who were juveniles at the time of their offense and of convicted murderers who were judged mentally retarded. The Court approved the drug testing of some workers. The Court allowed states to regulate abortions. These were considered conservative positions, but the Court ruled that the state of Texas could not punish an individual for burning an American flag in protest. Citing the First Amendment, the Court argued that such a law violated freedom of expression. This decision sparked a movement for a constitutional amendment to reverse the decision.
In the 1990s four justices retired, including William J. Brennan, Jr., Thurgood Marshall, Byron White, and Harry A. Blackmun. Brennan and Marshall retired during the presidency of George H. W. Bush. Bush named David Souter and Clarence Thomas to the bench. The Thomas nomination was highly controversial, and he was confirmed despite allegations he had sexually harassed a former employee. White and Blackmun retired under President William J. Clinton who replaced them with Ruth Bader Ginsburg and Stephen Breyer. As a consequence, the Court became divided between liberal and conservative justices, which imparted greater weight to the swing votes of O’Connor,
Kennedy, and Souter. As a consequence, the Court did not follow a clear ideological direction in the 1990s.
In the 1990s the Court limited the ability of Congress to regulate interstate commerce by striking down a law banning the possession of guns near schools. The Court reduced the authority of Congress to subject states to federal lawsuits for failure to enforce federal rights. In a series of decisions, the Court struck down electoral districts created solely to ensure the election of minority candidates. The Court restricted the ability of federal judges to order desegregation programs. The Court rejected state-imposed term limits for members of Congress. And in one of the most sensational cases of the decade, it nullified a Colorado constitutional amendment that barred local governments from protecting homosexuals from discrimination.
During the 2000 presidential election, the Court put itself in the position of determining the winner of the election. The controversial decision in Bush V Gore (2000) in a 5-4 decision awarded the election, in effect, to George W. Bush over Democratic challenger Albert Gore. Gore had involved the judiciary when he challenged vote counts in Florida. Critics of the decision charged the Court with partisanship and having overstepped its judicial powers by interfering with a Florida Supreme Court decision. This controversial decision might be the lasting legacy of this Court.
On July 1, 2005, Sandra Day O’Connor announced her intention to retire once her successor had been confirmed by the Senate. On July 19 President George W. Bush nominated John G. Roberts to replace her. O’Connor expected that she would be able to leave the Court before the start of the term in October 2005, but Chief Justice William Rehnquist died on September 3. George W. Bush then withdrew Roberts’s nomination for O’Connor’s position and nominated him for chief justice. On October 3 President Bush nominated White House counsel Harriet Miers for O’Connor’s post, but on October 27, Miers requested that Bush withdraw her name after complaints from many Republicans that she was not qualified for the position. Subsequently, Bush nominated Samuel Alito, who was confirmed on January 31, 2006.
At the end of the Court’s term in June 2009, Justice Souter retired from the bench. President Barack Hussein Obama nominated U. S. Court of Appeals, Second Circuit, judge Sonia Sotomayor as Souter’s replacement. Upon confirmation, she became the first Hispanic American to serve on the Court.
Further reading: Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 2000).
—John Korasick and Amy Wallhermfechtel
World History
