I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is my conclusion that the Burger Court has not undermined, and in some cases has actually expanded upon, the equality theme. Section III compares the records of the Warren and Burger Courts in adopting expansive interpretations of constitutional rights that protect the accused. It begins by noting that the Warren Court record in this area must be placed in proper perspective; while the Court did display a strong preference for expansive interpretations, it also refused to adopt expansive interpretations in numerous key cases. Section III then analyzes the Burger Court decisions and finds a rather mixed record. It concludes that in most areas outside of police practices the Burger Court has tended either to expand upon the Warren Court interpretations or to leave the governing guidelines largely as they stood under Warren Court decisions. The one or two exceptions involve departures from Warren Court precedent that had little substantive impact in protecting civil liberties. Section III does conclude that the Burger Court decisions on police practices have restricted the scope of various Warren Court rulings. Some of these restrictions, however, might well have been accepted by the Warren Court if the appropriate factual situations had been at issue before it. Also, the restrictions imposed so far have related primarily to collateral matters that do not substantially affect the practical impact of the major Warren Court decisions on police practices. Section III further concludes that the restrictions most likely to be imposed by the Burger Court in the future also would not undermine the basic functions of those Warren Court rulings. Finally, Section IV of the Article examines the image of the Burger Court and suggests that, if proper attention is paid to the Court's actual holdings, as opposed to the style of its decisions, civil libertarians would discover that they could better serve their cause by avoiding wholesale attacks on the Burger Court and lending their public support to the various Burger Court rulings that stress the continuing need to safeguard the basic rights of the accused.
Israel, Jerold H. "Criminal Procedure, the Burger Court, and the Legacy of the Warren Court." Mich. L. Rev. 75 (1977): 1319-425.