While Chief Justice Burger
acknowledged the confusion over the assignment, he still maintained that a "'DIG' might be possible.
Former Marshall clerk Mark Tushnet has acknowledged that "on most particulars and in its general depiction of the Supreme Court under Chief Justice Burger
, its accuracy has not been impugned" and has often been confirmed.
Reflecting now on my resolute commitment to arguing the case in Ninth Amendment terms--and thus in terms of the Constitution's "tacit postulates," which my opening brief had reminded then-Justice Rehnquist and Chief Justice Burger
that they had only recently described as no less "engrained in the fabric of the document [than] its express provisions" (11)--I think my grief may have permitted me to see a bit more clearly through the fog of superficial arguments and objections and may have steeled me against the kinds of eleventh-hour distractions and importunings that co-counsel, meaning to be helpful, are prone to inject as a Supreme Court argument nears.
Prior to the creation of the cert pool, during the 1971-1972 terms, Justices White, Blackmun, Powell, Rehnquist and Chief Justice Burger
, the five Justices who eventually made up the cert pool, voted together as a bloc of five 32% of the time.
28) Chief Justice Burger
explained that when Congress prohibited employers from racially discriminating, it meant also to prohibit them from preferring high school graduates to high school dropouts, and persons without a criminal record to persons with a criminal record if the result is to disproportionately disqualify blacks, unless the employer shows that the preference is a "business necessity.
Justice Brennan also disagreed with Chief Justice Burger
urging instead that a universal test was the correct solution.
Though Chief Justice Burger
had withdrawn his dissent, it was clear
Chief Justice Burger
hated lawyer advertising, as did some of his colleagues on the bench.
Already in Buckley, the Supreme Court under Chief Justice Burger
had stopped its call to equality which was started by his great predecessor Earl Warren.
Well, you know, two chiefs ago, Chief Justice Burger
used to complain about the low quality of counsel.
12) In Lemon, Chief Justice Burger
noted that contrary to Thomas Jefferson's misleading wall of separation metaphor, total separation between church and state is simply impossible, since some relationship is inevitable (the Chief Justice cited fire inspections, compulsory school attendance laws, and building and zoning regulations as examples of contact between church and state).
Chief Justice Burger
wrote a handwritten letter to Blackmun, describing their new relationship as a "baptism of fire" that "will be a source of constant strength to the Court, the country, and the Chief Justice.
Justice Blackmun had just been appointed and was still voting solidly with his childhood friend, (67) Chief Justice Burger
(78% voting agreement using the Harvard Law Review O Method (68)).
The differences between Chief Justice Burger
and Chief Justice Rehnquist were manifest.
In any event, Chief Justice Burger
soon recognized his mistake and began voting with the anti-Roe block.