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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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