Job Name:2251342 Date:15-05-19 PDF Page:2251342pbc.p1.pdf Color: Cyan Magenta Yellow Black front fold of spine---- The American Enterprise Institute for Public Policy Research, established in 1943, is a publicly supported, nonpartisan, research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press, and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not neces­ sarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Council of Academic Advisers Paul W. McCracken, Chairman, Edmund Ezra Day University Professor of Busi­ ness Administration, University of Michigan Robert H. Bork, Alexander M. Bickel Professor of Public Law, Yale Law School Kenneth W. Dam, Harold J. and Marion F. Green Professor of Law, University of Chicago Law School Donald C. Hellmann, Professor of Political Science and International Studies, University of Washington D. Gale Johnson, Eliakim Hastings Moore Distinguished Service Professor of Economics and Provost, University of Chicago Robert A. Nisbet, Adjunct Scholar, American Enterprise Institute Herbert Stein, A. Willis Robertson Professor of Economics, University of Virginia James Q. Wilson, Henry Lee Shattuck Professor of Government, Harvard University Executive Committee Richard B. Madden, Chairman of the Board Richard J. Farrell William J. Baroody, Jr., President Charles T. Fisher III Herman J. Schmidt Richard D. Wood Edward Styles, Director of Publications Program Directors Periodicals Russell Chapin, Legislative Analyses AEI Economist, Herbert Stein, Editor Robert B. Helms, Health Policy Studies AEI Foreign Policy and Defense Thomas F. Johnson, Economic Policy Studies Review, Lawrence J. Korb and Robert J. Pranger, Co-Editors; Sidney L. Jones, Seminar Programs James W. Abellera, Managing Editor Lawrence J. Korb, Public Opinion, Seymour Martin Defense Policy Studies Lipset, Ben J. Wattenberg, Co­ Marvin H. Kosters/James C. Miller III, Editors i David R. Gergen, Government Regulation Studies Managing Editor Regulation, Antonin Scalia and W. S. Moore, Legal Policy Studies Murray L. Weidenbaum, Co-Editors; Anne Brunsdale, Rudolph G. Penner, Tax Policy Studies Managing Editor Howard R. Penniman!Austin Ranney, Political and Social Processes William J. Baroody, Sr., Counsellor and Chairman, Robert J. Pranger, International Programs Development Committee SIGNIFICANT DECISIONS OF THE SUPREME COURT 1978-1979TERfV\ SIGNIFICANT DECISIONS OF THE SUPREME COUR1 1978-1979TERM Bruce E. Fein American Enterprise Institute for Public Policy Research Washington, D.C. Bruce E. Fein, a graduate of the University of California, Berkeley, and the Harvard Law School, is an attorney with the U.S. Department of Justice. He is a member of the Supreme Court Bar, the bars of several U.S. Courts of Appeals, the California Bar, and the American Bar Association. The views of the author do not necessarily represent those of the U.S. Department of Justice. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, USO Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. ISSN 0162-0444 ISBN 0-8447-3387-3 AEI Studies 282 © 1980 by the American Enterprise Institute for Public Policy Research, Washington, D.C. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. 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Printed in the United States of America CONTENTS 1 OVERVIEW 1 The Jurisprudence of the Burger Court 1 The Burger Court as Policy Maker 1 Failure to Champion Broad Constitutional or Statutory Principles 3 Dominant Themes in the Burger Court's Decisions 4 Conclusion 19 Voting Alignments 19 1978-1979 Statistics 23 2 SUMMARIES OF SIGNIFICANT DECISIONS 24 Criminal Law: Powers of the Police and Prosecutors 24 Criminal Law: Rights of the Accused 47 Employment Discrimination 61 Sex Discrimination 69 Freedom of Speech and Press 81 Voting and Elections 94 Government Immunity 98 Civil Rights and Civil Liberties 105 School Desegregation 130 Abortion 133 Federal Courts and Procedure 138 Labor Law 152 State Taxation and Regulation of Business 155 Federal Regulation: Antitrust, Patents, Securities, Environment, and Freedom of Information 160 INDEX OF CASES, 1978-1979 Term 176 SUBJECT INDEX, 1978-1979 Term 179 INDEX OF CASES, 1971-1978 183 1 Overview The Jurisprudence of the Burger Court Warren E. Burger, appointed chief justice after the close of the 1968-1969 term of the Supreme Court, concluded his first decade at the helm in 1979. An analysis of the Court's pronouncements issued during Burger's stewardship reveals three notable features. First, the Burger Court has moderated, but not disavowed, the leadership role in policy making that was characteristic of its predecessor, the Warren Court.! Second, the Burger Court has generally eschewed decisions that expound broad legal principles and that limit the policy discretion of subordinate federal and state courts when they confront constitutional or statutory questions; consequently, considerable ju­ dicial power has by default devolved upon the lower courts. Third, dominant recurring themes in the Burger Court's jurisprudence gen­ erally parallel sentiments of elected officials and the public, subject to important exceptions apparent in the following description of the Court's role as policy maker. The Burger Court as Policy Maker The Burger Court played a prominent policy-making role in several controversial areas despite vocal opposition by a substantial segment of the public. It endorsed sweeping remedial measures2 to desegregate public schools, including the mandating of extensive busing schemes,3 1 Justice Potter Stewart has observed that during the 1950s and 1960s, under the tutelage of Chief Justice Earl C. Warren, the Supreme Court for the first time in history assumed a leadership role in the evolution of public policy in many areas. Newsweek, July 4, 1976, p. 36. 2 See Milliken v. Bradley, 433 U.S. 267 (1977). 3 See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff'd, 423 U.S. 963 (1975); Columbus Board of Education v. Penick, 443 U.s. 449 (1979); Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979). 1 OVERVIEW and lightened evidentiary burdens required to justify their imposition throughout an entire school system. 4 In 1973, the Burger Court pro­ claimed the constitutional right to abortion. 5 In a sequel of related cases, the Court steadfastly blocked recurring state efforts to circum­ scribe access to an abortion by regulating the advertising of its avail­ ability,6 the employment of abortion techniques,' access to contra­ ceptives,8 and the participation of spouses and parents of young prospective mothers in the abortion decision. 9 Going contrary to a strong tide in public opinion, the Burger Court sharply curtailed the use of capital punishment.to In the widely noted Weber ll and Bakke 12 decisions, the Court blessed reverse discrimination in order to rectify historic disadvantages of minority groups. And in expounding the establishment clause of the First Amendment, the Burger Court re­ peatedly frustrated attempts by states to aid religiously affiliated elementary and secondary schools. 13 These policy excursions of the Burger Court share the Warren Court's14 activist vision of the judicial role in the governing process. Neither precedent, constitutional language, nor constitutional history offered a convincing foundation for these decisions. And with the possible exception of the abortion cases, these Burger Court rulings generally defied the majority opinion of the public at the time of the decision and frequently contravened the policy preferences of political branches of government. • See Keyes v. School Dist. No.1, Denver, Colorado, 413 U.s. 189 (1973); Columbus Board of Education v. Penick, 443 U.S. 449 (1979); Dayton Board of Education v. Brinkman, 443 U.s. 526 (1979). 5 Roe v. Wade, 410 U.s. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). 6 See Bigelow v. Virginia, 421 U.s. 809 (1975); Carey v. Population Services International, 431 U.S. 678 (1977). 7 See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 8 See Carey v. Population Services International, 431 U.S. 678 (1977). 9 See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622. 10 See Furman v. Georgia, 408 U.S. 238 (1972); Woodson v. North Carolina, 428 U.s. 280 (1976); Colker v. Georgia, 433 U.S. 584 (1977); Gardner v. Florida, 430 U.S. 349 (1977); Lockett v. Ohio, 438 U.S. 586 (1978). 11 443 U.S. 193 (1979). 12 University of California Regents v. Bakke, 438 U.S. 265 (1978). 13 See Lemon v. Kurtzman, 403 U.S. 602 (1971); Levitt v. Committee for Public Education and Religious Liberty, 413 U. S. 472 (1973); Committee for Public Education and Religious Liberty in Nyquist, 413 U.S. 756 (1973); Sloan v. Lemon, 413 U.S. 825 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977); New York v. Cathedral Academy, 434 U.s. 125 (1977). "See, e.g., Baker v. Carr, 369 U.S. 189 (1962); Flast v. Cohen, 392 U.S. 83 (1968); Mapp v. Ohio, 367 U.S.