86 Harv. L. Rev. 1 (1972-1973)
Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection

handle is hein.journals/hlr86 and id is 19 raw text is: NOVEMBER 1972

HARVARD LAW REVIEWI
THE SUPREME COURT
1971 TERM
FoREwonD: IN SEARCH OF EVOLVING DOCTRINE
ON A CHANGING COURT:
A MODEL FOR A NEWER EQUAL PROTECTION
Gerald Gunther *
WHEN Harry Kalven examined the Court's work in these
Wpages a year ago, he was surprised to find that the 1970
Term had produced less change than expected, that continuities
were more impressive than discontinuities? The 1971 Term
leaves me with a similar impression. That assessment may be
more surprising this year than last: a sharper break was ex-
pected by many and has already been proclaimed by some. To
me, portrayals of a dramatic turnabout do not ring true. Rather,
I see a Court divided, uncertain and adrift. The Burger Court
continues more confident about stopping further extensions of
some Warren Court paths than about charting roads of its own.2
The term's gropings prompt me to speculate about the sources
and contours of a more coherent Burger Court jurisprudence.
Some decisions are especially suggestive of possible new direc-
tions, as I will illustrate with an examination of the Burger
Court's invocations of equal protection. But before turning to
those speculations, I think a reiteration of the continuity theme
is warranted, to offset the increasingly prevalent exaggerations of
Burger Court-Warren Court differences.
Expectations were understandably high that a distinctive
Burger Court approach would emerge last term. Justices Powell
and Rehnquist joined prior Nixon appointees Burger and Black-
mun in January. The caseload and the writing output were
extraordinarily heavy: ' for the first time in more than half a
* William Nelson Cromwell Professor of Law, Stanford Law School; Visiting
Professor of Law, Harvard Law School.
I Kalven, The Supreme Court, 197o Term - Foreword: Even When a Nation Is
at War-, 85 HARv. L. Rav. 3, 4-5 (1971).
'See, e.g., Kurland, 197o Term: Notes on the Emergence of the Burger Court,
1971 SUP. CT. REV. 265, 272.
' See pp. 297-306 inra, especially Table II.

VOLUME 86

NUMBER I

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