SUPREME COURT OPINIONS: The Burger Court (1969 - 1986)


OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.

1973 Roe v. Wade, 410 U.S. 113
Opinion: Justice Harry A.Blackmun, J. Brennan, J. Powell, J. Marshall,
Concurring: Justice Potter Stewart, C.J. Burger, J. Douglas
Dissenting: Justice William Rehnquist, J. White
OOOORoe established a woman's right to an abortion within the first trimester of pregnancy.
OOOOWriting for the Court, Blackmun first surveyed the history of abortion laws, finding that, until the 19th century — which Blackmun considered "recent" — abortion was rarely illegal before "quickening", i.e. before the fetus showed signs of life. The import of this was that early abortions were legal, or at least tolerated at the time of the Constitution. Blackmun then went on to assess the state's interest in the life and health of both the mother and the unborn child as set against the mother's right to privacy and "personal liberty" as guaranteed by the 14th Amendment. While admitting there was no enumerated right to privacy, he pointed out that again and again the Court had acknowledged that such a right nonetheless existed implicitly in the Constitution. That right, Blackmun found, especially with respect to abortion, both in the intimacy of the condition and in its profound impact on the present and future life of the pregnant woman, trumped any state interest in banning abortion. For the first trimester of pregnancy, a woman had an unfettered right to terminate her pregnancy. The right, however, was not unlimited. Rejecting the state's argument that life began at conception (Blackmun refused to enter that argument), or that the fetus was a legal "person" (he pointed out that there was no Constitutional or legal basis for this), he did accept the state's interest in life at the point of "viability", i.e. when the unborn child was capable of existence, albeit assisted existence, outside the mother's womb. At that point, the state was free to ban abortions.
OOOOConcurring, Justice Stewart and Chief Justice Burger echo the opinion of the Court. Also concurring, Justice Douglas turned to the 9th Amendment, arguing that its intent was to protect all the "...customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come within the meaning of the term "liberty" as used in the Fourteenth Amendment." He went on to list broad categories of these rights; catgories which included abortion.
OOOOIn dissent Justice Rehnquist attacked Roe's standing to sue, which Blackmun had addressed in his opinion. More importantly, he denied that an abortion was a "private" act, and emphasized that it bore no relation to the idea of privacy underlying the enumerated rights in the Constitution, e.g. search and seizure. Turning to the 14th Amendment, Rehnquist granted a liberty interest which might embrace unenumerated rights, but under the Due Process Clause of that amendment, such rights were protected against state action without due process. As Rehnquist saw it, a law based on a "...rational relation to a valid state objective" was indeed due process, especially as he found no constitutional reason to suppose the state's objective in protecting the unborn wasn't valid. In fact, the Court"s application of a "compelling state interest" test to Due Process effectively empowered it to second-guess all state laws, and set itself up as a kind of super legislature, which Rehnquist was convinced it had done in this case.
OOOOIn a second dissent, Justice White echoed Rehnquist's, while more forcefully stating the lack of any constitutional basis for the majority's opinion, and deploring the fact that such an emotional and morally ambiguous issue should have been coopted by the Court, and not left to the states and their legislatures where it belonged.

1976 Buckley v. Valeo, 424 U.S. 1
Opinion: Per Curiam
Concurring and Dissenting: C.J. Burger
Concurring and Dissenting: J. White
Concurring and Dissenting: J. Marshall
Concurring and Dissenting: J. Blackmun
Concurring and Dissenting: J. Rehnquist
OOOOIn Buckley the Court ruled on the Federal Election Campaign Act of 1971. It chose to uphold the parts of the Act which limited campaign contributions and required record-keeping and reporting of contributions and expenditures. It struck down limits on campaign expeditures as violative of the First Amendment. It also struck down the method by which the Federal Election Commission was chosen, arguing that as "officers of the United States" its members could not be appointed by Congress, as the Act stipulated that a portion would be, but had to be appointed or nominated by the President, over which the Senate might exercise its power of advice and consent.

1978 Marquette National Bank of Minneapolis v. First of Omaha Service Corp. et al., 439 U.S. 299
Opinion (unanimous): Justice William Brennan
OOOOIf you've ever wondered why you send your credit card payments to South Dakota, Marquette is why. The case resulted from a suit brought by Marquette National Bank, chartered in Minnesota, against Omaha Service Corp., chartered in Nebraska. At the time, Nebraska law allowed its banks to charge higher interest rates on credit cards than Minnesota allowed its banks. That meant that, in order to make money on their credit card business, Minnesota banks had to charge a yearly fee, while Nebraska banks, which turned a profit on their higher interest rates, did not. But what if a Nebraska bank decided to offer credit cards to the citizens of Minnsota — did it fall under Minnesota's stricter usury laws, or Nebraska's more liberal ones? The question was important to Marquette because Omaha's ability to offer cards without an annual fee was cutting into its business.
OOOOThe Court ruled for Omaha, with Brennan writing that since the First National Bank of Omaha was a "national" bank, it fell under the provisions of the National Bank Act which a) supercedes state usury laws and b) allows banks to charge interest on "any loan" based on the rates allowed by the state in which they are chartered.
OOOOSo why South Dakota? Because just before Marquette, South Dakota had repealed is usury laws, making it prime territory to charter — or recharter — a bank offering credit cards, as there was no limit to the interest rates they could charge. Rhode Island would soon follow. Rates would approach 30%.