In response to what conservatives considered the liberal judicial revolution under the Warren Court, President Nixon came into the presidency promising to appoint “strict constructionists” (conservative-minded justices) to the bench. In three short years, between 1969 and 1972, he was able to appoint four new justices to the Supreme Court, including the new chief justice, Warren Burger. Surprisingly, despite the conservative credentials of its new members, the Burger Court refused to scale back the liberal precedents set under Warren. Most prominently, in Roe v. Wade the Burger Court extended the “right of privacy” developed under Warren to include women’s access to abortion. As we saw above, few Supreme Court decisions in the twentieth century have disappointed conservatives more.

In a variety of cases, the Burger Court either confirmed previous liberal rulings or chose a centrist course. In 1972, for instance, the Court deepened its intervention in criminal procedure by striking down all existing capital punishment laws, in Furman v. Georgia. In response, Los Angeles police chief Ed Davis accused the Court of establishing a “legal oligarchy” that had ignored the “perspective of the average citizen.” He and other conservatives vowed a nationwide campaign to bring back the death penalty — which was in fact shortly restored, in Gregg v. Georgia (1976). Other decisions advanced women’s rights. In 1976, the Court ruled that arbitrary distinctions based on sex in the workplace and other arenas were unconstitutional, and in 1986 that sexual harassment violated the Civil Rights Act. These rulings helped women break employment barriers in the subsequent decades.

In all of their rulings on privacy rights, however, the Burger Court was reluctant to move ahead of public attitudes toward homosexuality. Gay men and lesbians still had no legal recourse if state laws prohibited same-sex relations. In a controversial 1986 case, Bowers v. Hardwick, the Supreme Court upheld a Georgia sodomy statute that criminalized same-sex sexual acts. The majority opinion held that homosexuality was contrary to “ordered liberty” and that extending sexual privacy to gays and lesbians “would be to cast aside millennia of moral teaching.” Not until 2003 (Lawrence v. Texas) would the Court overturn that decision, recognizing for all Americans the right to sexual privacy.