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  • Print publication year: 2018
  • Online publication date: August 2018

6 - Intra-Court Bargaining


When Warren Earl Burger was appointed chief justice in 1969, he had big shoes to fill. Burger's predecessor, Earl Warren (the similarity in names was a coincidence), had earned a prominent reputation for leadership and integrity during his sixteen years on the bench. Dubbed “the super chief” by Justice William J. Brennan Jr., Warren's prestige extended back to the Court's unanimous ruling in Brown v. Board of Education during his first term. Burger was eager to achieve a similar accomplishment early in his tenure. The new chief was known for vanity (“he placed a large cushion on his center seat on the bench, so that he would appear taller than his colleagues”), and he cared a great deal about his public image (he was “deeply hurt by derogatory accounts about his performance” and “always sensitive to what he perceived to be slights to his office and to himself”). Accordingly, the new chief justice hoped to craft a landmark decision that would earn him the sort of clout and prestige that Warren had attained from Brown.

Burger saw his opportunity in another school desegregation case that reached the Court during his second term: Swann v. Charlotte- Mecklenburg Board of Education. In the Spring of 1970, US District Court Judge James McMillan ordered total desegregation in each of the public schools in Charlotte, North Carolina, and the surrounding Mecklenburg County. McMillan's order demanded a “racial balance” in each school: Because the district was 71 percent white and 29 percent black, each school was required to strive for that ratio of students. Although McMillan admitted that “variations from the norm may be unavoidable,” his drastic ruling ordered busing for thirteen thousand additional students, which often involved young students spending more than an hour on the bus each day.

Burger felt McMillan's order went well beyond the desegregation ruling in Brown, which only required the end of separate schools for blacks and whites; instead, McMillan's ruling amounted to forced racial mixing – judicially mandated integration as opposed to desegregation. Such an order, in Burger's view, had no legal basis.

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  • Online ISBN: 9781108621410
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