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    Plan détaillé Texte intégral The “unfaithful or not so faithful” The “Faithful” Works cited Notes de bas de page Auteur

    Les Républicains

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    Republican Chief Justice Appointees (1952-2008)

    Armand Hage

    p. 97-108

    Texte intégral The “unfaithful or not so faithful” The “Faithful” Works cited Notes de bas de page Auteur

    Texte intégral

    1The Constitution of the United States provides for separation of powers and checks and balances, which means that the legislative, executive and judiciary branches are independent and they check on each other. The separation, however, is not, and cannot be absolute. The President has executive power, but he also has huge legislative powers insofar as by “the stroke of the pen” he can veto and kill a bill passed by both Houses of Congress. Besides, the Vice President is the President of the Senate. Congress can impeach the President and override a veto. The judiciary is controlled by the other two branches, as the President appoints a judge or a Supreme Court justice and the Senate confirms – or rejects – the appointment. For their part, federal judges, and especially justices, can strike down a law passed by Congress and signed by the President, and when the Supreme Court makes a decision, the decision becomes the law of the land, which is the essence of legislative power. Given the power vested in justices, among the most important decisions a President is called upon to make is the appointment of a Supreme Court justice, and especially a Chief Justice, as these are appointed for life and their tenure generally lasts much longer than the two terms of a chief executive. As a result, Presidents have to be very careful in picking Chief Justices; they usually try to pick people who are politically close to their ideas so they can leave their imprint on the nation. However, what happens after the Chief Justice is confirmed is no longer under the President’s control. All four Chief Justices in the 1952-2008 period have been appointed by Republican Presidents, and the issue involved is whether the appointees act according to the idea that put them at the top of the High Court. This paper will deal with both those who mostly took a different course from the one they were expected to take and those who mostly followed their President’s wishes.

    The “unfaithful or not so faithful”

    2When Chief Justice Fred Vinson died on September 8, 1953, at the age of 63, President Eisenhower, not a seasoned politician, asked Attorney General Herbert Brownell to help pick a new Chief Justice. Brownell suggested his friend Earl Warren. Warren had been District Attorney and governor of California. He was also Thomas Dewey’s running mate in the 1948 presidential election and he ran again in 1952 but eventually supported Ike against the ultra-conservative Robert A. Taft, an isolationist and opponent of NATO. Eisenhower was reluctant because he would rather have a more conservative Chief Justice. Warren was eventually sworn in on October 5, 1953. Eisenhower’s acceptance could be viewed as a way to thank Warren and to placate him because Eisenhower had picked Richard Nixon and not Warren as his running mate. In other words, Warren’s appointment could be a quid pro quo.1 But Brownell asserted that this nomination was not the result of a deal.2 Eventually, Eisenhower stated that he and Warren thought along the same lines and Warren was best qualified for the job. Despite such praise, relationships between the two men were rather strained, and the Warren-Nixon relationships were even more so.3

    3Eisenhower could not be aware that his appointee would make some of the most momentous decisions in American history. The Court at the time undermined the false assumption about what Robert Lowell called the “tranquillized Fifties.” To be sure, they were “tranquil” insofar as there were no significant upheavals as in the Sixties, but they were by no means “tranquil” from a statutory and constitutional standpoint; they set the stage for what was to come in the following decades, and the change came very often through the Court.

    4Warren could be viewed as a conservative in some of his votes. Roth v. United States (1957) said obscenity was not protected by the First Amendment Free Speech Clause. Yates v. United States (1957) protected free speech as long as it was a statement of beliefs and not a call to action to overthrow the government. One decision relating to freedom of the press, Red Lion Broadcasting Co. v. FCC (1969), held that if a broadcaster defamed a person it had to provide that person equal time to reply. This was known as the Fairness Doctrine.4

    5But Warren’s record as a liberal was much more significant and impressive. It is impossible to review the whole body of Warren’s votes; only a few rulings show his dedication to shaking quite a few entrenched conservative political and social attitudes. In matters of civil rights and racial equality, Brown v. Board of Education (1954) brought a sea change. It is easy to understand Warren’s decision without the benefit of psychiatry and psychoanalysis. Warren expressed it clearly, including in his Memoirs. During World War II in California, he was instrumental in setting up internment camps for California Japanese, and he regretted this action for the rest of his life. He eventually realized that treating people unfairly because of their race was evil. Warren’s decision can also be accounted for by his personal history. When he was a child in California, corruption in government was rampant; the weak were oppressed and could not assert their rights. Warren thought it was his duty to redress those grievances; he tended to label Eisenhower a racist, ignoring Eisenhower’s appointments of justices who advanced the cause of desegregation.

    6 Brown took Eisenhower by surprise, to put it mildly. As a moderate conservative he was shocked by what seemed Warren’s unbridled liberalism. Eisenhower did work for desegregation, starting with the Armed Forces, but as a politician, albeit a neophyte, he realized that desegregation had to be gradual, especially in order not to antagonize the South. Brown put him in a quandary, and despite his cautious approach, he was compelled to send national guardsmen in 1957 against the Arkansas governor who prevented African Americans from entering schools in Little Rock. Eisenhower eventually signed laws to enforce desegregation, and in 1960 he made resistance to desegregation a federal offense. Another major decision regarding racial equality was Loving v. Virginia (1967). It overturned all state miscegenation laws banning interracial marriage. In the matter of individual liberties, NAACP v. Alabama (1958) reaffirmed the freedom of association.

    7Warren was a proponent of “judicial activism,” as opposed to “judicial restraint,” not only in the matter of civil rights and individual freedoms, but also in securing suspects’ and defendants’ rights in matters of criminal procedure. He implemented his idea in Miranda v. Arizona (1966), a universally-known decision; Miranda granted more rights to people accused of crimes, thereby restricting law enforcement action. Mapp v. Ohio (1961) ruled that evidence collected unconstitutionally must be excluded because it is a violation of the Fourth Amendment. This was the exclusionary rule. Warren also protected citizens against unreasonable searches prohibited by the Amendment and in the matter of arbitrary or unwarranted arrests, as shown by Chimel v. California (1969).

    8In issues of redistricting and elections, Warren imposed more fairness and honesty. Baker v. Carr (1962) decided that redistricting for elections could not be only a political question; courts may intervene if redistricting violates due process. In 1964, Reynolds v. Sim established the “one man, one vote” principle, giving the same weight to all votes. Warren was also very active regarding freedom of the press and freedom of speech; New York Times Co. v. Sullivan (1964) made a broad interpretation of the First Amendment and gave the press virtually total freedom in dealing with public figures, such as politicians. Public figures could sue for libel only in case of “actual malice,” but the burden of proof was on them, which was a tough proposition.

    9In other matters, Engel v. Vitale (1962) prohibited prayer in public schools. Griswold v. Connecticut (1965) cited due process and established a new notion, the right to privacy, including in abortion decisions. Ginzburg v. United States (1965) restricted obscenity and the mailing of obscene material but stated that sexual material is not obscene if it advances learning and understanding. By the late Sixties, Warren had become anathema to conservatives; there was a drive to impeach him and he was targeted by the ultra-conservative John Birch Society.

    10After an 8-year hiatus with Democratic Presidents during the Sixties, Nixon won the White House back for the Republicans. Nixon was the proponent of the “Silent Majority,” as opposed to the unruly protesters and hippies. When he was campaigning in 1968, Nixon promised that he would appoint what he called “strict constructionists” to the Court. For all practical purposes, a strict constructionist amounts to a conservative who provides a narrow interpretation of the Constitution, as opposed to a broad constructionist, who draws inferences and extends the reach of the Constitution.

    11On May 21, 1969, Nixon appointed Warren Burger, a Court of Appeals judge at the time and an early supporter of the Eisenhower/Nixon ticket in 1952, which made Nixon grateful. He was confirmed by the Senate by a 74-3 vote on June 9, 1969 and took the oath of office on June 23. During the Eisenhower years, Burger’s work was valued both because he was viewed as a professional legal mind and as a conservative who tried to scale back some of the Warren Court’s decisions.

    12Burger’s tenure as Chief Justice lasted until September 26, 1986 when he retired. Of course, Nixon expected him to put his full conservative agenda and statements into practice. Burger, however, did not have Warren’s charisma, strength of character and influence on his colleagues. As a result, apart from limiting the rights of the defense in criminal prosecutions, he joined most majority decisions, and these were liberal decisions. Actually, Burger was not a rabid conservative, and to Nixon’s displeasure, the Burger Court’s record was mixed: both somewhat conservative and often a continuation of that of the Warren Court, although on a slower pace, as the Sixties’pace could not be sustained indefinitely, even by Warren.

    13The following are some examples of Burger’s votes that could please Nixon: In Goldberg v. Kelly (1970), which gave more rights to suspects, Burger dissented. In Williams v. Florida (1970), he concurred in limiting due process. North Carolina v. Alford (1970) is a strange-sounding decision. It says that a guilty plea can be accepted by a judge even though the defendant contends he is innocent. In other words, a defendant can plead guilty, protest his innocence and be sentenced for a crime he did not commit. In Rhode Island v. Innis (1980), the Court held that under the Fifth Amendment and Miranda rights, if a suspect in custody incriminates himself while not being interrogated, he cannot avail himself of the privileges.

    14 Branzburg v. Hayes (1972) rejected the contention that the Freedom of the Press Clause gives journalists a “reportorial privilege” allowing them to refrain from testifying in court. Walz v. Tax Commission of the City of New York (1970) ruled that tax exemptions for churches or religious organizations are not a violation of the First Amendment’s Establishment (of religion) Clause. Burger was in the majority.

    15Burger illustrated his will to restrict First Amendment liberties in Baird v. State Bar of Arizona (1971), in Coates v. City of Cincinnati (1971) and in Cohen v. California (1971). In Cohen, the Court found for Paul Cohen, who was wearing a jacket with “Fuck the Draft” printed on the back as part of the Freedom of Speech Clause. But Burger dissented. He wrote that it was not speech but behavior, and as such was not protected. In Bowers v. Hardwick (1986), Burger stated that homosexual acts are criminal acts.

    16In United States v. Matlock (1974) and in Bell v. Wolfish (1979), Burger stated that the Fourth Amendment was not violated if police searched a home with one co-occupant consenting and the other, who is the defendant, refusing. In Payton v. New York (1980) Burger dissented, stating in essence that police could use warrantless searches.

    17 Nixon v. General Services Administration (1977) upheld the right of Congress to decide by law to seize the papers of a former President. Burger dissented. In Regents of the University of California v. Bakke (1978), a landmark decision, Burger concurred with the decision to admit a white student who claimed he was the victim of reverse discrimination. Furman v. Georgia (1972) set a moratorium on the death penalty but Burger, dissented; his vote could not fail to please Nixon, the “Law and Order” President. In 1976, Burger concurred with Gregg v. Georgia, which reinstated the death penalty under certain conditions.

    18But Burger’s record shows a spate of votes that could displease Nixon. In civil rights and racial equality, Alexander v. Holmes County Board of Education (1969) decided that schools had to proceed to desegregate immediately, as about 15 years had elapsed since Brown. The unanimous Swann v. Charlotte-Mecklenburg Board of Education (1971) was a sort of implementation of Brown. It upheld busing as a way to achieve desegregation. Nixon always claimed he supported civil rights and desegregation, but for political reasons, including Southern votes, he wanted delays in busing.

    19 Griggs v. Duke Power Co. (1971) upheld civil rights, especially non-discrimination in hiring. Reed v. Reed (1971) prohibited differences in treatment on the basis of gender. Edwards v. Arizona (1981) held that if a suspect in custody invokes the right to have a counsel present, police should stop interrogation, otherwise, the evidence is not admissible. In INS v. Chahda (1983) and in Bowsher v. Synar (1986), Burger asserted the importance of the separation of powers by striking down a so-called legislative veto, which happens when a legislature participates in the execution of its own laws.

    20Burger dissented in The New York Times Co. v. United States (1971), which strengthened the freedom of the press by authorizing the publication of the “Pentagon Papers,” but the dissent was not on the merits. Burger deplored the hastiness of the Court’s decision. Miami Herald Publishing Co. v. Tornillo (1974) unanimously struck down a Florida law which provided that a news-paper must allow free space to a political candidate to reply to a hostile article or editorial. In this decision and in Red Lion Broadcasting, votes by Warren and Burger seem inverted. It is easy to realize how angry Nixon could be when the media, which he regarded as his arch-enemy, were protected by the prohibition of prior restraint and gag orders. When Spiro Agnew was Vice President, he used to lump opponents and the media together in the kind of phrases full of alliterations that he delighted in. He would call them the “nattering nabobs of negativism.”5

    21 United States v. U.S. District Court (1972) is a landmark ruling about government power facing individuals or groups suspected of destroying government property or advocating violent overthrow of government. Nixon and his Attorney General John Mitchell contended that the government did not need any court warrants to conduct electronic surveillance in such cases, but the Supreme Court ordered the government to request warrants. United States v. U.S. District Court is also interesting and significant because on June 17, 1972, two days before it was decided, five suspects were arrested at the Democratic National Committee headquarters in the famous Watergate building for planting electronic surveillance devices without a warrant in order to wiretap the Committee’s work.6 In 1973, after demurring, Burger eventually joined the majority in Roe v. Wade, the decision authorizing abortion being based on the famous right to privacy introduced by the Court as implicit in the Constitution.7

    22Nixon was dealt a blow by the Chief Justice he appointed when in 1974 Burger joined the unanimous decision in United States v. Nixon, 8-0 (William Rehnquist did not participate), a decision ordering Nixon to release the tapes he had recorded in the White House with his aides. Those tapes, dubbed the “smoking gun,” proved that Nixon was involved in the cover-up of the Watergate break-in. United States v. Nixon is very interesting in analyzing Burger’s attitude and the relationships between a President and a member of the judiciary that he appointed. Most contemporary justices have had a jaundiced view of what Presidents called Executive Privilege, a notion they think allows them to hide information not only from the public but also from the other branches of power. In this decision, the Court sought to reaffirm both the notion of separation of powers and the primacy of the judiciary in interpreting the Constitution.

    The “Faithful”

    23Burger’s successor in 1986 was William Rehnquist. Rehnquist had always been a conservative and he was opposed to Brown. Nixon appointed him associate justice in 1972 precisely on account of his conservatism. Nixon was starting to be disappointed in Burger and his Court, and Rehnquist seemed more reliable. In 1964, he had worked for the Goldwater campaign, and had shown high conservative credentials as Assistant Attorney General between 1969 and 1971. Rehnquist was viewed as even more conservative than Patrick Buchanan, the epitome of Conservatism.8 Rehnquist was more to the right than Burger. As Chief Justice, he had more friendly relationships with his colleagues and his leadership was more efficient than Burger’s. Rehnquist’s voting record is definitely conservative, and with conservative new justices joining the Court, he had more and more “soul brothers.”

    24When Rehnquist was nominated Chief Justice by Ronald Reagan on June 20, 1986. He was confirmed by the Senate on September 17, 1986, by a vote of 65-33 and sworn in on September 26, 1986.9 He brought along all the ideas and actions that he had shown as an associate justice. He almost always pleased the president who appointed him. Rehnquist had the same attitude as Nixon regarding wiretapping without a warrant; he supported police right to enter homes without knocking on doors, and went against the Warren Court decision regarding the exclusionary rule. Rehnquist’s ideas foreshadowed the Patriot Act and the NSA procedures.

    25Of course, Rehnquist did deliver votes which could seem anti-conservative. In Hudson v. McMillian (1992), he joined the majority in stating that the use of excessive force by prison guards violated the Eighth Amendment even though the victim was not seriously wounded. Dickerson v. United States (2000) upheld the Miranda warning and struck down a state law overruling it. In Ring v. Arizona (2002), the Court ruled that if a judge, not referring to the jury, decides to introduce aggravating circumstances, he violates the right to a jury trial. Rehnquist dissented.

    26Rehnquist’s record, however, shows he was a dyed-in-the-wool conservative. In McCleskey v. Kemp (1987), Rehnquist joined the majority in a case relating to civil rights and treatment of minorities. This decision is in some ways a reversion to the Jim Crow era. Miller-El v. Dretke (2005) struck down a black man’s death sentence because the man contended that the jury was racially biased, as black jurors were challenged by the prosecution. Rehnquist dissented.

    27 Colorado v. Connelly (1986) held that due process was not violated if a defendant made a voluntary confession unless police used coercion. The Court, on the grounds of Miranda, said that as long as there was no police coercion, a confession by a schizoid is admissible and should not be suppressed.

    28 Maryland v. Garrison (1987) ruled that evidence found during a search if police acted in good faith thinking that the warrant was valid is admissible. California v. Greenwood (1988) is another example of a strict construction of the Fourth Amendment. Rehnquist and the majority ruled that there is no need for a warrant to search garbage outside the curtilage of a home. Florida v. Riley (1989) held that surveillance of the private property of a suspect cannot be assimilated to a search; in other words, police could watch a suspect without the need for a warrant.10 Graham v. Connor (1989) showed that the Court tended to dismiss or downplay defendants’contentions of excessive force used by police. Illinois v. Rodriguez (1990) held that when persons share a home, the consent of one of them is sufficient for a warrantless search. The decision is valid even if the person who gave consent was not actually sharing the home. In Arizona v. Evans (1995), Rehnquist joined the majority in holding that an error in a warrant committed by court clerks does not invalidate the warrant. Maryland v. Craig (1990) held that a child’s testimony via closed-circuit television did not violate the right of a sexual predator to confront witnesses against him. Rehnquist joined the majority. Arizona v. Youngblood (1988), with Rehnquist in the majority, held that the loss of exculpatory evidence is not a denial of due process.11 Lawrence v. Texas (2003) overruled Bowers, holding that the Fourteenth Amendment protected the privacy and the freedom of adults regarding intimate facts. Rehnquist dissented.

    29In United States v. Felix (1992), Rehnquist took a restrictive view of double jeopardy and concurred that committing a crime and being part of a conspiracy for that crime are two different violations. Texas v. Johnson (1989) invalidated a Texas statute incriminating flag burning because flag burning is a form of freedom of speech. Rehnquist dissented, as he did in United States v. Eichman (1990), which ruled in the same way.

    30 Osborne v. Ohio (1990) upheld an Ohio statute making it illegal not only to distribute child pornography material but also to possess the material. Milkovich v. Lorain Journal Co. (1990) limited the scope of New York Times Co. v. Sullivan by limiting media protection against libel. In Lee v. Weisman (1992), the Court ruled that a prayer at a high school graduation ceremony was a violation of the First Amendment. Rehnquist dissented. McConnell v. Lee (2003) held that political speeches are not always and necessarily protected by the First Amendment. Generally speaking, in dealing with the First Amendment, Rehnquist’s vote was predicated on the issues involved. He defended freedom when it applied to topics he favored and vice versa.

    31 Penry v. Lynaugh (1989) held that executing mentally retarded people is not a violation of the Eighth Amendment. Walton v. Arizona (1990) upheld an Arizona statute making death sentences easier to mete out. Rehnquist joined the majority, and when Ring v. Arizona (2002) overturned Walton, he dissented. Lockyer v. Andrake (2002) held that California’s three strikes law was not cruel and unusual punishment. In Planned Parenthood v. Casey (1992), Rehnquist dissented from the part of the ruling that struck down a law requiring spousal consent for an abortion. Rehnquist contended that Roe was not decided correctly. Alden v. Maine (1999) ruled that Congress could not, under Article I, coerce non-consenting states to be subjected to private suits by individuals in federal courts. Rehnquist concurred, in line with his brand of federalism which stresses state power.

    32 Romer v. Evans (1996) struck down a Colorado Constitutional amendment and was viewed as a victory for GLBT groups. Rehnquist dissented, but this dissent should not be interpreted as hostility toward gays in general, which was still actually Rehnquist’s position. The amendment did not discriminate against GLBT. It simply said that gays and lesbians should not have preferential treatment. It did not say they must be discriminated against or deprived of some rights.

    33 Boy Scouts of America v. Dale (2000) upheld the Boy Scouts organization’s exclusion of Dale as assistant Scoutmaster. The Boy Scouts said homosexuality is against their moral principles, and the Court held that the Boy Scouts were a private organization free to choose its members under the First Amendment’s freedom of association although the state laws prohibit discrimination; in other words, the Scouts’action was not discrimination.

    34Not surprisingly, true to his Republican-Conservative allegiance, Rehnquist concurred in Bush v. Gore (2000), giving the presidential election to Bush.

    35Rehnquist’s successor, John Roberts, was appointed by George W. Bush and took office on October 3, 2005. During his confirmation process he stated that he had no set of fixed ideas and no cast-in-stone political philosophy but was open-minded and decided to interpret the Constitution in an objective way.

    36Some Roberts’ votes may not seem conservative; in freedom of religion issues, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), the Court affirmed the right for a religion to use a hallucinatory tea for sacramental purposes. Holmes v. South Carolina (2006) established that a state cannot exclude evidence presented by a criminal defendant to show evidence of his innocence simply because the prosecution’s case seems too strong. Roberts joined the unanimous decision. Of course, this ruling may show Roberts not acting as a conservative, but the South Carolina court decision could not be acceptable to any honest justice because it prevents a defendant from presenting a complete defense. CBOCS West, Inc. v. Humphries (2007) ruled that a black employee who was punished because he had protested dismissal of other black employees was a victim of race retaliation prohibited under the Civil Rights Acts of 1871 and 1964.

    37In matters of due process, Zedner v. United States (2006) held that under the Speedy Trial Act, an implementation of the Sixth Amendment, waiving the right to a speedy trial is not valid. Greenwood v. United States (2008) prohibited an appeals court from increasing a criminal sentence if the government does not appeal.

    38But most Roberts’ votes up to 2008 included are conservative. Regarding due process and suspects’rights, Rice v. Collins (2006) found for the prosecutor against the defendant, who had questioned the prosecutor’s motives in using a peremptory challenge. The defendant contended that the rejection of some potential jurors was racially motivated. Oregon v. Guzek (2006) held that for sentencing purposes a convicted defendant has to limit evidence of innocence to that submitted during trial; no new evidence is admissible.

    39Roberts dissented from Georgia v. Randolph (2006), which held that if one of two co-occupants of a home was opposed to a warrantless search, evidence against him collected by police is not admissible. This decision is protective of individual rights, as it means that the warrantless search is unreasonable and thus a violation of the Fourth Amendment. Roberts said that whenever a person shares a home with another person, he/she should expect the other person to tell police about his/her illegal actions. The decision, in his opinion, hampered police action.

    40Roberts joined in Hudson v. Michigan (2006), which held that even if police fail to knock and wait before entering a home, which is a violation of the Fourth Amendment, the evidence collected is valid. But not surprisingly, Roberts dissented from United States v. Gonzales-Lopez (2006), which ruled that if a defendant is barred from choosing his counsel, his conviction has to be reversed.

    41Roberts cast votes as a Conservative in other Fourth Amendment rulings. In Scott v. Harris (2007) the Court decided that a law enforcement officer was justified in blocking a vehicle that had initiated a chase which was dangerous to bystanders, even if his action caused the motorist’s paralysis; in other words, this action was not an abuse of the Fourth Amendment’s prohibition of unreasonable seizure. Herring v. United States (2009) held that if a warrant was not valid and police were not aware of it, or the warrant was later found to be invalid, the exclusionary rule does not apply, and the evidence collected is admissible. This is known as the “good faith exception.”

    42 Brendlin v. California (2007) held that during a traffic stop, not only the passenger but all the other occupants of the vehicle are regarded as seized within the meaning of the Fourth Amendment. Virginia v. Moore (2008) said that when there is probable cause, even when the evidence for a crime is found unlawfully without a warrant during a traffic stop, the evidence is admissible, although it is against state law. Regarding civil rights, Crawford v. Marion County Election Board (2008) said that requiring an ID before an individual can vote is not unconstitutional.

    43Many votes revolve around the Eighth Amendment. Panetti v. Quarterman (2007) ruled that even mentally ill people can be executed although they do not understand why they are about to be executed. Kansas v. Marsh (2006) held that when aggravating and mitigating circumstances are equivalent, deciding the death penalty is not a violation of the Eighth Amendment. Roberts dissented from Kennedy v. Louisiana (2008), which held that a child rapist cannot be sentenced to death if the child does not die and the rapist did not intend to kill.

    44 Davis v. FEC (2008) held that the McCain-Feingold Act (2002) was a violation of the First Amendment in the “Millionaire’s Amendment” part, which prevented a candidate from spending his personal money the way he wanted in order to be elected. In matters of privacy and abortion, Roberts joined in Gonzales v. Carhart (2007), which upheld the Partial-Abortion Ban Act signed by George W. Bush in 2003. Roberts’ latest conservative stand is illustrated in his dissent in Obergefell v. Hodges (June 29, 2015), legalizing same-sex marriage.

    45Of course, Roberts’ record is shorter than the other Chief Justices, as this article deals with his four or five years in office. One interesting point is worth noting about the Roberts’Court as it currently stands is that since 2010, for the first time in American history, there has been no Protestant justice on the Supreme Court. It is made up of 6 Catholics and 3 Jews.

    ***

    46The track record of Chief Justices shows that an acting Chief Justice may have to make choices, and for a President an appointment is a toss-up. The Chief Justice may have to choose between being true to his ideas and being true to the President who nominated him. The votes by the four Chief Justices nominated during the 1952-2008 period show that while the latest two, Rehnquist and Roberts, remained true both to their ideals and to their Presidents by delivering mostly conservative votes. Warren and Burger afford more interesting analyses. Warren got completely out of control and went his own way not caring for what Eisenhower would say, and Burger provided a more subtle record, in some cases pleasing the man who nominated him and in others delivering damning votes. The whole experience proves that more often than not those four Chief Justices, like most of their predecessors, voted their conscience or their convictions, which is a refreshing change from politicians.

    Works cited

    Belknap, Michael, The Supreme Court Under Earl Warren, 1953-1969 (Chief Justiceships of the Supreme Court), Columbia, University of South Carolina Press, 2005.

    Blasi, Vincent (ed.), The Burger Court: The Counter-Revolution That Wasn’t, New Haven, Yale University Press, 1983.

    Burger, Warren, Delivery of Justice, Williamsburg, VA., College of William and Mary Press, 1990.

    Coyle, Marcia, The Roberts Court: The Struggle for the Constitution, New York, Simon & Schuster, 2014.

    Jenkins, John, The Partisan: The Life of William Rehnquist, New York, Public Affairs, 2012.

    Maltz, Earl, Rehnquist Justice: Understanding the Court Dynamic, Lawrence, KS, University Press of Kansas, 2003.

    Maltz, Earl, The Chief Justiceship of Warren Burger, 1969-1986 (Chief Justiceships of the United States Supreme Court), Columbia, S.C: University of South Carolina Press, 2000.

    Schwartz, Bernard, Super Chief: Earl Warren and His Supreme Court, New York, New York University Press, 1983.

    Schwartz, Bernard (ed.), The Warren Court: A Retrospective, New York, Oxford University Press, 1996.

    Schwartz, Herman (ed.), The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986, New York, Viking, 1987.

    Schwartz, Herman (ed.), The Rehnquist Court: Judicial Activism on the Right, New York, Hill and Wang, 2002.

    Tribe, Laurence and Matz Joshua, Uncertain Justice: The Roberts Court and the Constitution, New York, Henry Holt & Co., 2014.

    Warren, Earl, The Memoirs of Justice Earl Warren, New York, Doubleday, 1977.

    Notes de bas de page

    1See Melvin Urofsky, “Entry on Earl Warren,” in Kermit L. Hall (ed.), The Oxford Companion to the Supreme Court of the United States, New York, Oxford University Press, 1992, p. 913.

    2Albert Lawrence, “Herbert Brownell, Jr.: The ‘Hidden Hand’ in the Selection of Earl Warren and the Government’s Role in Brown v. Board of Education,” Journal of Supreme Court History, Volume 37, Issue 1, p. 75 – 92, March 2012.

    3On Eisenhower and his regret for having appointed Warren, see Todd S. Purdum, “Presidents, Picking Justices, Can Have Backfires,” The New York Times, July 5, 2005, p. A4: “The biggest damn fool mistake I ever made.”

    4However, see the Miami Herald ruling, 1974, holding that this restriction does not apply to print media.

    5[http://politicaldictionary.com/words/nattering-nabobs-of-negativism/], retrieved on May, 13, 2015.

    6The arrest led to the revelation of the Watergate Scandal, as Nixon was accused of covering up the whole operation. In 1974, the House of Representatives issued articles of impeachment against the President. The Judiciary Committee needed research on impeachment; the person who provided the research, and thus was instrumental in forcing Nixon to resign, was none other than Hillary Rodham, later known as Hillary Clinton.

    7However, when in 1986 Reagan asked the Court to reverse Roe, the Court, in Thornburgh v. American College of Obstetricians and Gynecologists, rejected the request, and this time, Burger dissented, reversing his concurrence in Roe.

    8Rick Perlstein, Nixonland: The Rise of a President and the Fracturing of America, New York, Scribner, 2008, p. 605.

    9[http://www.civilrights.org/monitor/october1986/art4p1.html], retrieved on May 13, 2015.

    10As a matter of fact, although the Court did not mention it, this procedure is, for all practical purposes, the same as trailing or staking out a suspect, which is police routine.

    11The irony in this case lies in that the defendant was convicted for sexual assault, among other charges, but with the more efficient DNA testing techniques, it was shown that he was not the assailant. As a result, he was released after about 12 years in prison and the real assailant was found out and sentenced to 24 years.

    Auteur

    • Armand Hage

      Professeur honoraire à l’université de la Nouvelle-Calédonie (Nouméa)

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    1See Melvin Urofsky, “Entry on Earl Warren,” in Kermit L. Hall (ed.), The Oxford Companion to the Supreme Court of the United States, New York, Oxford University Press, 1992, p. 913.

    2Albert Lawrence, “Herbert Brownell, Jr.: The ‘Hidden Hand’ in the Selection of Earl Warren and the Government’s Role in Brown v. Board of Education,” Journal of Supreme Court History, Volume 37, Issue 1, p. 75 – 92, March 2012.

    3On Eisenhower and his regret for having appointed Warren, see Todd S. Purdum, “Presidents, Picking Justices, Can Have Backfires,” The New York Times, July 5, 2005, p. A4: “The biggest damn fool mistake I ever made.”

    4However, see the Miami Herald ruling, 1974, holding that this restriction does not apply to print media.

    5[http://politicaldictionary.com/words/nattering-nabobs-of-negativism/], retrieved on May, 13, 2015.

    6The arrest led to the revelation of the Watergate Scandal, as Nixon was accused of covering up the whole operation. In 1974, the House of Representatives issued articles of impeachment against the President. The Judiciary Committee needed research on impeachment; the person who provided the research, and thus was instrumental in forcing Nixon to resign, was none other than Hillary Rodham, later known as Hillary Clinton.

    7However, when in 1986 Reagan asked the Court to reverse Roe, the Court, in Thornburgh v. American College of Obstetricians and Gynecologists, rejected the request, and this time, Burger dissented, reversing his concurrence in Roe.

    8Rick Perlstein, Nixonland: The Rise of a President and the Fracturing of America, New York, Scribner, 2008, p. 605.

    9[http://www.civilrights.org/monitor/october1986/art4p1.html], retrieved on May 13, 2015.

    10As a matter of fact, although the Court did not mention it, this procedure is, for all practical purposes, the same as trailing or staking out a suspect, which is police routine.

    11The irony in this case lies in that the defendant was convicted for sexual assault, among other charges, but with the more efficient DNA testing techniques, it was shown that he was not the assailant. As a result, he was released after about 12 years in prison and the real assailant was found out and sentenced to 24 years.

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    Hage, A. (2015). Republican Chief Justice Appointees (1952-2008). In F. Robert (éd.), Les Républicains. Rennes: Presses universitaires de Rennes. https://doi.org/10.4000/14mym
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    Hage, Armand. « Republican Chief Justice Appointees (1952-2008) ». Les Républicains, édité par Frédéric Robert, Presses universitaires de Rennes, 2015, https://doi.org/10.4000/14mym.

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    Robert, F. (éd.). (2015). Les Républicains. Rennes: Presses universitaires de Rennes. https://doi.org/10.4000/14n4p
    Robert, Frédéric, éd. Les Républicains. Rennes: Presses universitaires de Rennes, 2015. doi:10.4000/14n4p.
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