Law: Inside the High Court

After a decade, it is Burger's in name only

When the nine Justices of the U.S. Supreme Court meet to discuss and vote on cases on Friday mornings, they begin with 'he simple ritual of shaking hands. Then they sit down to decide on some of the nation's most sensitive, sometimes most divisive issues. No reporter, no lobbyist, no aide, not even a messenger is allowed in the paneled conference room. The Justices are left alone to argue the law, their principles, their consciences. Theirs is not an abstract debate: comfortably hazy concepts like ''liberty'' and ''equality'' must be applied to urgent social and moral dilemmas—abortion, the death penalty, obscenity, busing, reverse discrimination. The conferences provide a relentless test of conviction and reason; shallowness and bluffing are not long concealed. ''It is like being naked in a steam bath,'' Justice Felix Frankfurter once remarked. ''You are totally exposed.''

To appraise the Supreme Court a decade after Warren Burger became Chief Justice, TIME interviewed several of the Justices, dozens of their law clerks, and scholars across the land. One finding: after ten years at the helm of the nation 's highest tribunal, Burger has yet to demonstrate the intellectual or personal persuasion necessary to make him a leader among his highly individualistic brethren. Another: faced with a never-ending array of increasingly complex issues, the court itself is splintered and groping; its decisions often seem inconsistent.

Yet it remains an institution of remarkable resilience and integrity.

In the 1960s, under Chief Justice Earl I Warren, the Supreme Court fashioned I a goad for social progress out of two 14th Amendment phrases—due process and equal protection of the laws—with specific application to civil rights and criminal law. Liberals praised the court for championing the rights of the traditionally powerless—blacks, the poor, criminal defendants. Others denounced it for excessive zeal and social meddling.

Scholars like Yale's Alexander Bickel chastised the Justices for reading their own morality into the Constitution and usurping the power of elected officials.

Bumper stickers demanded the impeachment of Earl Warren. Alabama Governor George Wallace called the court a ''sorry, lousy, no-account outfit.''

Among the most persistent detractors was Richard Nixon. In his 1968 law-and-order campaign for the presidency, he accused the Supreme Court of ''weakening the peace forces in society and strengthening the criminal forces.'' If elected, he promised, he would fill Supreme Court vacancies with ''strict constructionists,'' a description generally taken to mean conservatives.

Nixon did not have to wait long to act after his Inauguration.

Earl Warren retired, and in May 1969 Nixon chose Warren Earl Burger to replace him as Chief Justice. Burger, then 61, seemed made to order for Nixon's views.

A product of night law school in Minnesota rather than the Eastern Establishment, Burger had been a judge on the prestigious U.S. Court of Appeals for the District of Columbia, where he had often criticized the Warren Court's liberal decisions on the rights of the criminally accused.