The Court, the Constitution, and Chief Justice Burger

Although the constitutional crisis of 1973 has not yet demanded a definitive response from the Supreme Court, it obviously has established a landmark in the ultimate history of Warren Burger's Chief Justiceship. While the unprecedented confrontation between executive and judiciary was not carried beyond the Court of Appeals for the District of Columbia, Burger's old court,' and although the prospective confrontation between executive and Congress did not--at least in its first round-- reach a stage of review on the merits, the questions presented went to the cornerstones of Anglo-American constitutional theory itself. The case of Vice President Agnew raised issues of executive privilege that in their own right invited exhaustive judicial analysis of the nature of the vice-presidential office, but an historic "nolo contendere" plea in a dictrict court scotched that opportunity.' Moreover, the stirrings in Congress of proposed impeachment proceedings would, if they compel Senate action, necessarily involve the Chief Justice of the Court. In this apocalyptic succession of events, it has been necessary to qualify Charles Evans Hughes's famous aphorism that "the Constitution is what the judges say it is," by observing that the Constitution which the Court interprets must be viewed in the perspective of the age.

With issues of such magnitude as those arising from Watergate, it is manifest that they will affect directly or indirectly the constitutional jurisprudence of the current decade and beyond. This situation is fortuitously part of the essential background of the Burger Court itself; and yet, even if Watergate had never intruded upon national and world affairs, the emerging features of the Burger Court would still have warranted scrutiny and evaluation. For by now, in the course of its fifth term, the Court under this Chief Justice has assumed some distinctive characteristics which lend themselves to analysis.