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Abortion. Two weeks ago, in Thornburgh vs. American College of Obstetricians, the court reaffirmed its 1973 abortion decision, Roe vs. Wade, but the vote was a slim 5 to 4. Burger, who originally sided with the majority in Roe, dissented and indicated that the time had come to "review" the controversial 1973 ruling. It was not entirely clear whether Burger would vote to throw out Roe or, more likely, just shade it at the margins to uphold some state laws that make it more difficult for women to obtain abortions. The same uncertainty surrounds Justice O'Connor, who also dissented in Thornburgh but did not call for the outright reversal of Roe. Scalia, a strong Catholic, is believed to be a surer vote to overturn Roe and thereby return the decision on whether or not to permit abortions to the state legislatures.
Race. Burger has a mixed record on racial-discrimination cases. He has voted both for and against affirmative action and busing, depending on the circumstances. Significantly, however, he wrote the majority opinion in Fullilove vs. Klutznick, a 1979 case explicitly upholding the use of quotas to set aside 10% of federal contracts for minority-owned businesses under a public-works act passed by Congress. Supreme Court Expert Bruce Fein of the American Enterprise Institute suggests that Scalia would not "cotton to" such a decision and predicts a "move to a more color-blind jurisprudence." In a 1979 article in the Washington University Law Quarterly, Scalia bluntly stated his views: "I am, in short, opposed to racial affirmative action for reasons of both principle and practicality. Sex-based affirmative action presents somewhat different constitutional issues, but it seems to me an equally poor idea."
Scalia would make it much harder for blacks to win a discrimination case. Burger was the author of Griggs vs. Duke Power Co., a 1971 decision holding that employment tests that have the effect of barring blacks are unconstitutional. Scalia, by contrast, has argued that blacks must show direct evidence that the employer was motivated by racial bias against them.
Free Speech. Although the Burger Court has often been accused by editorial writers of an antipress bias, the Rehnquist Court may make the pundits positively nostalgic. Burger wrote a number of pro-press decisions during his tenure. In the 1980 case of Richmond Newspapers Inc. vs. Virginia, for instance, Burger held that under the First Amendment the press and the public have the right to attend most criminal trials. Rehnquist dissented, as he usually does in cases protecting press freedom.