The Conservatives and The Court

Earl Warren’s retirement in June 1969 ended his run as Chief Justice of the most progressive Supreme Court in American history. Richard Nixon appointed Warren Burger to replace Warren, and Republican presidents selected the next five Justices over the seventeen years that Burger presided as Chief Justice. And yet the Burger Court, while tacking a bit to the right, continued to embrace activist interpretive method-ologies and to issue progressive decisions. The most famous example, but a typical one, was its decision in Roe v. Wade in 1973. There the Court discerned in the Fourteenth Amendment’s due process clause a “right to privacy” — a right that appears nowhere in that clause — that gave a pregnant woman the prerogative to abort a fetus until viability. The opinion was written by Harry Blackmun, a Nixon appointee, and joined by Burger and another Nixon appointee, Lewis Powell. In 1983 the title of

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