Oklahoma Law Review
When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur.
If one tries to discern a strategy in the restructuring of civil liberties, and especially search and seizure rulings, clues of such a strategy are found in the Fourth Amendment decisions of the Burger Court. While it may never be possible to discern which Justices of the Court devised or implemented this strategy, it might at least be possible to describe what the strategy was and anticipate how it might be used in the future. Further, such an analysis may be useful in determining whether this strategy persists in the Rehnquist Court, and what its existence means for the future of the Fourth Amendment.
Gerald S. Reamey, Up In Smoke: Fourth Amendment Rights and the Burger Court, 45 Okla. L. Rev. 57 (1992).