Court at the Crossroads

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Court cut back in some areas, notably the rights of criminals, but went much further than the Warren Court in others. It allowed publication of the Pentagon papers, generally upheld affirmative action, made sex discrimination unconstitutional, permitted forced busing in school-desegregation cases and, most startlingly, gave women a constitutional right to abortion. The last decision was written by Blackmun, a Nixon appointee who until then had been considered a meek, go-along conservative. As if to underscore their independence, the Justices unanimously ordered Nixon to turn over his incriminating White House tapes to the special prosecutor during Watergate.

The Burger Court has been just as activist as the Warren Court, willing to second-guess other branches of Government and read new meaning into the Constitution. But unlike the Warren Court, which had a clear moral vision, especially toward the havenots, the Burger Court has lacked any coherent overarching theme. Says Duke University Law School Professor William Van Alstyne: "Many cases are just a muddle. The legal tests being developed now are as complicated and picayune as the Internal Revenue Code."

The court lacks "a great articulator" in the mold of Holmes or Louis Brandeis, says Federal Judge Simon Rifkind. Burger has not emerged as a strong voice. Courtly and white-maned, almost regal in appearance, he seems more comfortable with his ceremonial and administrative duties than at deciding cases. At the court's weekly conferences, he sometimes strikes other Justices as ill prepared and indecisive. When Burger changed his vote repeatedly in one case, Justice Byron White reportedly threw down his pencil and declared, "Jesus Christ, here we go again."

Says Steven Reiss of New York University Law School, a former clerk for Brennan: "Calling this the Burger Court is a complete misnomer. He is the least analytical and the least astute, and he has the least time for the substantive work of the court." Burger has irked some of his colleagues, who suspect that he has used his power to assign the written opinions of the court to reward his friends and punish his enemies.

Strong-willed jurists, pent up together for decades, inevitably feud. Earlier courts were riven by fierce ego and philosophical clashes, like the long-running one between William Douglas, an unabashed activist, and Felix Frankfurter, apostle of "judicial restraint." By comparison, the Burger Court is a pretty tame place. "This court is not characterized by the struggle of titans," says Virginia's Howard. The current Justices are perfectly civil to one another.

But there is little collegiality. "It's not like you walk into a room and four of them are laughing together about a baseball game," says a former law clerk for Brennan. "They walk to conference arm in arm, but during the week they don't pal around together." Justice Lewis Powell calls the Brethren "nine one-man law firms." Says Blackmun: "There is very little humor."

Aside from a weekly Friday conference, the Brethren usually communicate in writing. Memos ("letters," in quaint court jargon) are exchanged, as the Justices probe one another for the parameters of a decision. The final opinions are longer and more heavily footnoted than in the past. Too