Document Type

Book Chapter

Publication Date



Richard Nixon's criticism of the Warren Court during the 1968 presidential campaign centered largely on the Court's handling of cases involving criminal rights. According to candidate Nixon, the Court had gone much too far. It had twisted the Constitution to serve its own purposes, created a maze of legal technicalities that worked only to frustrate legitimate law enforcement efforts, and so weakened "the peace forces as against the criminal forces in this country" as to be largely responsible for the sharp rise in crime that had occurred in the sixties. What had to be done, continued Nixon, was to appoint persons to the federal bench "who will interpret the Constitution strictly and fairly and objectively." Such "strict constructionist" judges could be expected not only to put an end to the creation of further legal rights for the accused, but might even trim back on some of the Warren Court "excesses." Decisions such as Mapp v. Ohio (1961), prohibiting the use of evidence obtained in violation of the Fourth Amendment's stricture against "unreasonable searches and seizures" and Miranda v. Arizona (1966), requiring police to inform suspects of their constitutional rights before beginning any questioning were frequently cited by Nixon as examples of the type of decisions that should not have been made. Nixon was not the only critic of Mapp and Miranda. Even certain supporters of the Warren Court had admitted that Mapp and Miranda were among the Court's "self-inflicted wounds." Miranda, for one thing, read more like a piece of legislation than a judicial opinion and Mapp recalled only too well Justice Cardozo's famous query: "Is the criminal to go free because the constable has blundered?" Despite Nixon's victory in 1968 and his appointment of four justices to the Supreme Court, Mapp and Miranda have not been overruled. The way in which they have survived and the manner in which the Burger Court has responded to other questions of criminal law and procedure give us another insight into the Burger Court. The following excerpts are from a lengthy article by University of Michigan Law Professor Jerold H. Israel comparing the Burger and Warren Courts. The selection that follows focuses on his commentary on the Burger Court.