Now, the Rehnquist Court

The retirement of Warren E. Burger as chief justice of the United States and the elevation of U.S. Supreme Court Justice William H. Rehnquist to succeed him will end the 17-year Burger court and launch the Rehnquist court in its place. For 15 years Burger and Rehnquist have been the most consistently conservative justices on the Supreme Court, so the nomination of U.S. Court of Appeals Judge Antonin Scalia, another conservative, to fill the vacancy should not alter the court’s basic voting pattern or ideological split.

But while the change will not on its face give the conservatives any additional votes, it will give them substantially more intellectual firepower than they have had till now. Rehnquist will bring his formidable legal mind to the head of the court’s conference table, where he is likely to have more success at influencing his fellow justices than Burger had. Scalia, too, has a well-deserved reputation as a very smart man. The quality of Supreme Court opinions should go up.

The Burger court came of President Richard M. Nixon’s 1968 pledge to undo the decisions of the Warren court that preceded it and to put more emphasis on catching criminals than on protecting their rights. It has done what Nixon sought.

While the court has not repudiated the basic ideas of the Warren court on criminal procedure, it has severely limited their application. The Burger court did not overrule the Miranda decision (requiring police to read a suspect his rights), but it allowed many exceptions. It did not overrule the exclusionary rule (preventing the introduction of illegally obtained evidence), but it whittled away at it.

At the same time, the court has cut down probable cause and other search-warrant requirements. It has adopted an “Is this person guilty or not?” model. If the defendant is guilty, it has been willing to dismiss procedural shortcomings.

Despite Rehnquist’s and Scalia’s espousal of the philosophy of “judicial restraint,” which holds that judges should defer to legislatures in making laws, both of them are willing to substitute their views for a legislature’s when they don’t like what the legislature has done. David L. Shapiro of the Harvard Law School wrote of Rehnquist: “While he is a man of considerable intellectual power and independence of mind, the unyielding character of his ideology has had a substantial adverse effect on his judicial product.”

Not surprisingly, a series of conservative Presidents has appointed a Supreme Court that has produced conservative legal doctrine. With the changes announced Tuesday, the outlook is for more of the same.