The Burger Court’s landmark decisions include Roe v. Wade, United States v. Nixon, the Furman and Gregg death penalty rulings, the Lemon and Miller tests, Buckley v. Valeo, the Bakke affirmative action framework, and the trio of gender discrimination cases that produced intermediate scrutiny. Chief Justice Warren E. Burger led the Court from 1969 to 1986, and the bench under his leadership reshaped American law across privacy, criminal justice, presidential power, race, gender, and free speech.1Supreme Court of the United States. Justices 1789 to Present Several of its most famous rulings still govern. Several others have been overturned.
Why the Court Was Hard to Predict
President Nixon appointed Burger in 1969 expecting a turn away from the liberal Warren Court, and he eventually placed four justices on the bench: Burger, Harry Blackmun in 1970, and Lewis Powell and William Rehnquist in 1971.2Justia U.S. Supreme Court Center. Chief Justice Warren Burger The results were not what Nixon planned. Blackmun wrote the majority opinion in Roe v. Wade. Powell became a swing vote on affirmative action. Only Rehnquist consistently anchored the right, and he later succeeded Burger as Chief Justice in 1986. Holdovers like William Brennan and Thurgood Marshall remained, and later additions of John Paul Stevens (1975) and Sandra Day O’Connor (1981) added more cross-currents. The Court tightened some criminal procedure rules while expanding gender equality and commercial speech protections, and it issued the sweeping privacy ruling in Roe while refusing to extend privacy to other contexts.
The Death Penalty: Furman, Gregg, and Coker
In 1972, Furman v. Georgia produced nine separate opinions and one blunt conclusion: the death penalty as then administered was arbitrary and discriminatory, and so violated the Eighth Amendment.3Justia. Furman v Georgia Every existing death sentence in the country was invalidated. Executions stopped nationwide while state legislatures rewrote their capital statutes.
Thirty-five states passed new laws with more structured sentencing, and in 1976 the Court ruled in Gregg v. Georgia that the death penalty was not inherently unconstitutional.4Justia. Gregg v Georgia, 428 US 153 (1976) Capital sentencing had to follow procedures designed to prevent arbitrariness. Georgia’s system qualified because it used a separate sentencing phase after conviction, required specific aggravating factors, and mandated appellate review comparing each death sentence to similar cases. The Furman-Gregg framework still structures how capital cases are tried in the United States.
A year after Gregg, the Court set a proportionality ceiling. In Coker v. Georgia (1977), it held that sentencing a defendant to death for the rape of an adult was grossly disproportionate under the Eighth Amendment.5Justia. Coker v Georgia Virtually every state other than Georgia had already dropped capital punishment for that offense. Coker signaled that the death penalty would be reserved for crimes involving a victim’s death.
Roe v. Wade and the Privacy Right
Roe v. Wade (1973) remains the most debated ruling of the era. Justice Blackmun’s majority opinion located a right to privacy within the Due Process Clause of the Fourteenth Amendment broad enough to cover a woman’s decision to end a pregnancy.6Justia. Roe v Wade The Court balanced that right against state interests through a trimester framework: in the first trimester the decision belonged to the woman and her physician; in the second the state could regulate for maternal health; after viability the state could prohibit abortion, with an exception to protect the life or health of the mother.7Cornell Law Institute. Jane ROE, et al, Appellants, v Henry WADE
The companion case, Doe v. Bolton, defined “health” broadly to include physical, emotional, psychological, and familial factors and the woman’s age, and it struck down several procedural hurdles Georgia had placed on access, including hospital committee approval and confirmation by two additional physicians.8Library of Congress. Doe v Bolton
Roe no longer governs. In Dobbs v. Jackson Women’s Health Organization (2022), the Court held that the Constitution does not confer a right to abortion and returned the authority to regulate or prohibit it to state legislatures.9Justia. Dobbs v Jackson Womens Health Organization, 597 US (2022) The trimester framework is gone, and access now varies state by state.
The Burger Court declined to extend privacy in every direction. In its final term, Bowers v. Hardwick (1986) upheld a Georgia law criminalizing consensual intimate conduct between same-sex adults, with the 5–4 majority reasoning that the privacy cases were rooted in family, marriage, and procreation. That decision stood for 17 years until Lawrence v. Texas (2003) overruled it, holding that intimate consensual conduct is protected by the Due Process Clause and that Bowers was wrong when it was decided.10Justia. Lawrence v Texas, 539 US 558 (2003)
Executive Power: The Two Nixon Cases
Watergate forced the Court to answer whether a sitting president could refuse a judicial subpoena. In United States v. Nixon (1974), the special prosecutor sought White House tape recordings for a pending criminal trial, and Nixon argued that executive privilege shielded all presidential communications absolutely.11Cornell Law Institute. United States v Nixon
The Court unanimously rejected that claim. Executive privilege has a legitimate role, particularly where military or diplomatic secrets are involved, but a general interest in confidentiality cannot override the specific need for evidence in a criminal prosecution.12Justia U.S. Supreme Court Center. United States v Nixon, 418 US 683 (1974) Nixon resigned weeks later.
Civil lawsuits came out differently. In Nixon v. Fitzgerald (1982), the Court held 5–4 that a president is entitled to absolute immunity from civil damages for actions taken within the scope of official duties, reasoning that the unique nature of the presidency and the constant threat of litigation justified the protection.13Justia. Nixon v Fitzgerald, 457 US 731 (1982) The two Nixon cases together draw the line still used today: criminal process goes forward, civil damages suits over official acts do not.
Race, Busing, and Affirmative Action
Nearly two decades after Brown, many districts remained deeply segregated. Swann v. Charlotte-Mecklenburg Board of Education (1971) unanimously approved busing as a desegregation tool and gave federal courts broad authority to redraw attendance zones and transport students across districts to remedy past discrimination.14Justia. Swann v Charlotte-Mecklenburg Board of Education
The Court’s most-watched race case came in 1978. The University of California at Davis medical school had reserved 16 of 100 seats per entering class for minority applicants. Allan Bakke, a rejected white applicant, argued the quota violated the Equal Protection Clause. The Court agreed that rigid quotas were unconstitutional and ordered Bakke admitted. In a fractured set of opinions, Justice Powell wrote that race could still be used as one factor among many because student-body diversity served a compelling educational interest.15Justia. Regents of Univ of California v Bakke That framework guided university admissions for 45 years.
It is no longer good law. Students for Fair Admissions v. Harvard (2023) held that race-conscious admissions at Harvard and the University of North Carolina violated the Equal Protection Clause, ending the Bakke diversity rationale.16Justia. Students for Fair Admissions, Inc v President and Fellows of Harvard College
Gender Equality and Intermediate Scrutiny
Before the Burger Court, the Supreme Court had never struck down a law for sex discrimination. That changed in a decade through three decisions that built on each other.
Reed v. Reed (1971) came first. An Idaho law automatically preferred men over women as estate administrators. The Court unanimously held that arbitrary gender preferences violate the Equal Protection Clause and that sex-based classifications must bear a fair and substantial relationship to the law’s purpose.17Justia. Reed v Reed
Frontiero v. Richardson (1973) pushed further. A female Air Force officer challenged a federal statute that treated spouses of male service members as dependents automatically while requiring female service members to prove their husbands depended on them. The Court struck down the statutes, and a plurality of four justices called sex classifications “inherently suspect,” though the full Court did not go that far.18Justia U.S. Supreme Court Center. Frontiero v Richardson
The standard that stuck arrived in Craig v. Boren (1976). The case itself involved an Oklahoma law setting different drinking ages for men and women, but the Court used it to adopt intermediate scrutiny: a gender classification must serve an important government objective and be substantially related to achieving it.19Justia. Craig v Boren Intermediate scrutiny still governs sex discrimination claims today.
First Amendment Tests and Standards
The Lemon Test
Lemon v. Kurtzman (1971) created a three-part test for Establishment Clause challenges: a law must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not create excessive entanglement between government and religious institutions.20Justia U.S. Supreme Court Center. Lemon v Kurtzman, 403 US 602 (1971) The case involved state salary supplements at religious schools, which failed the entanglement prong. Lemon dominated Establishment Clause analysis for decades. In Kennedy v. Bremerton School District (2022), the Court formally abandoned it, replacing the framework with an approach grounded in historical practices and understandings.21Justia. Kennedy v Bremerton School District, 597 US (2022)
The Miller Test
Miller v. California (1973) still defines obscenity. Chief Justice Burger’s majority opinion set three requirements, all of which must be met before material can be treated as unprotected: whether the average person applying contemporary community standards would find the work appeals to a prurient interest, whether it depicts sexual conduct in an offensive way as defined by state law, and whether the work as a whole lacks serious literary, artistic, political, or scientific value.22Justia U.S. Supreme Court Center. Miller v California, 413 US 15 (1973) The ruling deliberately rejected a national standard, leaving the judgment of what counts as offensive to local communities.
Commercial Speech and the Press
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) brought commercial speech under First Amendment protection for the first time. Virginia had made it illegal for pharmacists to advertise prescription drug prices. The Court struck the ban down, holding that consumers have a legitimate interest in the free flow of commercial information.23Justia. Va Pharmacy Bd v Va Consumer Council, 425 US 748 (1976) Before this ruling, advertising received essentially no constitutional protection.
Nebraska Press Association v. Stuart (1976) reinforced press freedom against prior restraints. A gag order barring news coverage of a criminal case could survive constitutional scrutiny only if no less restrictive alternative existed to protect the defendant’s right to a fair trial, and prior restraints carry a heavy presumption of unconstitutionality.24Justia. Nebraska Press Assn v Stuart, 427 US 539 (1976)
Campaign Finance
Buckley v. Valeo (1976) drew a line that still governs political spending law. The Court upheld limits on individual contributions to a campaign, finding that caps served the government’s interest in preventing corruption. It struck down limits on independent campaign expenditures, holding that capping how much a person or group could spend to promote a candidate restricted the quantity of political speech.25Justia. Buckley v Valeo, 424 US 1 (1976) The contribution-versus-expenditure divide still shapes how campaign finance laws are written and challenged.
Criminal Procedure: The Good-Faith Exception
The Burger Court’s conservative instincts showed clearest in criminal procedure, where it narrowed protections defendants had won under the Warren Court. The signature ruling was United States v. Leon (1984), which carved out a good-faith exception to the exclusionary rule. Under the earlier framework, evidence from an unconstitutional search had to be thrown out. Leon held that if police officers reasonably relied on a search warrant issued by a judge, the evidence could still be used even if the warrant turned out to be invalid, because the exclusionary rule exists to deter police misconduct and punishing officers who properly obtained a warrant serves no deterrent purpose.26Justia. United States v Leon, 468 US 897 (1984)
The exception has limits. Evidence must still be suppressed if the officer misled the judge with false information, if the judge abandoned any pretense of neutrality, or if the warrant was so obviously deficient that no reasonable officer could have relied on it.26Justia. United States v Leon, 468 US 897 (1984)
What Still Governs and What Has Been Overturned
From the Burger era, the Gregg capital sentencing framework, Miller’s obscenity test, Craig’s intermediate scrutiny for sex discrimination, Buckley’s contribution-expenditure divide, the two Nixon rulings on executive privilege and civil immunity, and Leon’s good-faith exception all remain the law. Roe v. Wade was overturned by Dobbs in 2022. The Lemon test was abandoned by Kennedy v. Bremerton in 2022. The Bakke diversity rationale fell to Students for Fair Admissions in 2023. Bowers v. Hardwick was overruled by Lawrence v. Texas in 2003. The Burger Court’s record is one of foundational rulings that outlasted the Court itself, alongside several that later majorities decided they could do without.