The Burger Court has had to face a constant question in the right to representation cases: How best to balance the needs of society and the needs of individuals? At the time of this Note, the Burger Court has faced this question for six years, the same span of time in which the Warren Court after Gideon established its liberal legacy. As the accompanying chart reveals, the sixteen right to representation decisions of the Burger Court during this period have been split equally, eight extending and eight restricting the right. This split obviously has slowed the momentum of the Warren Court decisions. As the accompanying chart also demonstrates, the members of the Burger Court have been split equally into three voting blocs. Although Gideon v. Wainwright was an unanimous decision by the Warren Court for the defendant, those who almost always have blown the trumpet of Gideon (the accused) are Justices Douglas, Brennan,and Marshall. Although Argersinger v. Hamlin was also an unanimous decision by the Burger Court for the defendant, those who almost always have followed the piper of Hamlin (the government)are Chief Justice Burger and Justices Blackmun and Rehnquist. This conflict between the "Trumpeters" and the "Pipers" was made even more clamorous by the clashing contentions of Justice Douglas and Chief Justice Burger, but the recent retirement of Justice Douglas has ended this second six-year era. Nevertheless, because two members of his group still remain and because all three members of the third bloc, the "Swing men," still remain, it is important to analyze the Burger Court decisions of that six-year period. Thus the purpose of this Note is to reveal and review the reasonings and voting patterns of the three blocs, to scrutinize the substance and scope of the decisions, and to attempt to predict the implications of those factors for further cases-in effect, to recognize the tune the Burger Court is playing in the right to representation cases.
David M. Thompson,
Of Trumpeters, Pipers, and Swingmen: What Tune Is the Burger Court Playing in Right to Representation Cases?,
29 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol29/iss3/4