The Burger Court – Warren Burger succeeded Earl Warren and although a Republican conservative led the Court to a number of landmark decisions: Roe v Wade (1973) on abortion Furman v Georgia (1972) on death penalty University of California v Bakke (1978) on affirmative action US v Nixon (1974) on Watergate tapes

Burger Court and the Death Penalty Furman v Georgia - does the imposition and carrying out of the death penalty in constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments? Yes 5-4 Only Brennan and Marshall believed the death penalty to be unconstitutional in all instances.

Furman v Georgia (1972) Other concurrences focused on the arbitrary nature with which death sentences have been imposed, as a violation of equal protection, often indicating a racial bias against black defendants. Court's decision forced states to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner

Gregg v Georgia (1976) Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment? No 7-2 In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed

Gregg v Georgia 1976 Court not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders Decision essentially ended the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v Georgia

Gregg v Georgia 1976

Death Penalty

The Rehnquist Court and judicial activism William Rehnquist appointed to the court in 1972 by Nixon and made Chief Justice in 1986 by Reagan Often a lone dissenter in his early career, he later led a conservative majority Ideologically with the prosecution in criminal cases, with business in antitrust cases, with employers in labour cases, and with the government in speech cases

Rehnquist court and race University of California v Bakke (1978) race as a factor in student admissions, in order to achieve “student body diversity”, is constitutional (does not violate 14th amendment) but quotas are illegal Hopwood v. Texas Fifth Circuit Court (1996) challenged Bakke and effectively banned affirmative action in Louisiana, Mississippi and Texas

Rehnquist court and race Grutter v Bollinger (2003) does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance?

Rehnquist court and race No on 5 – 4 decision re-affirmed Bakke, overriding Hopwood “In the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race- conscious admissions program does not unduly harm nonminority applicants” (Day O’Connor)

Rehnquist court and race Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body race-conscious admissions policies must be limited in time - 25 years from now, the use of racial preferences will no longer be necessary

McCleskey v Kemp (1987) McCleskey a black man was convicted of murdering a police officer and sentenced to death McCleskey argued that a statistical study proved that the imposition of the death penalty in Georgia depended to some extent on the race of the victim and the accused

McCleskey v Kemp (1987) Did the statistical study (Baldus) prove that McCleskey's sentence violated the Eighth and Fourteenth Amendments? Study showed that a black defendant who killed a white victim is most likely of all racial combinations to be sentenced to death in the state of Georgia? Court decides no, 5-4

McCleskey v Kemp (1987) The statistical study did not provide substantial evidence to require a reversal of conviction; it could not be proven that discrimination had affected McCleskey in this particular trial – all capital trials are unique therefore death penalty for this man was constitutional The legislative rather than judicial branch of government is better suited for presenting data

Colorado v Connelly 1986 Involuntary confession - Francis Connelly, a man suffering from chronic schizophrenia at the time, confessed to murder to a policeman without prompting Question: Does the use of Connelly’s statements as evidence violate the Due Process Clause of the Fourteenth Amendment?

Colorado v Connelly 1986 Decided evidence could be used, though the man’s “rational intellect” and “free will” had interference due to mental state thus limits the scope of Miranda v. Arizona interpretation “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that”

Dickerson v US (2000) Under Congressional act 18 USC Section 3501 of 1968 “a confession shall be admissible in evidence if it is voluntarily given” – federal cases and in DC Dickerson made incriminating statement about a number of bank robberies Dispute as to when he was read his Miranda rights and Dickerson filed motion to suppress his statement which was granted

Dickerson v US (2000) Court of Appeals held that “Congress enacted section 3501 with the express purpose of legislatively overruling Miranda and restoring voluntariness as the test for admitting confessions in federal court” Thus SC was asked whether Congress could overrule Miranda v. Arizona, and its warnings, through legislation? Said no on a 7 – 2 decision

Dickerson v US (2000) Court held that Miranda mandates under what circumstances to accept statements made during custodial interrogation, in both state and federal courts “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”, wrote Rehnquist.

Dickerson v US (2000) “Miranda announced a constitutional rule that Congress may not supersede legislatively. We decline to overrule Miranda ourselves” Scalia and Thomas dissented on grounds that the majority opinion gave needless protection to “foolish (but not compelled) confessions”

Rehnquist Court As chief justice in the 1980s and 1990s Rehnquist sought to revive states’ rights Narrowed rights of criminal suspects Began process of critically evaluating affirmative action Roberts court to adjudicate on Voting Rights act of 1964 Affirmative action – discrimination against whites?