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Don't blame poor old Burger for the penumbra. Justice William O. Douglas invented the penumbra for the Griswold (Connecticut birth control) case.

Thanks, just playing off the fact that it was the Burger Court that decided Roe. I actually knew Griswold was the Genesis of this line of "reasoning", but didn't know Douglas started it...learn something new every day.

Did Burger actually vote "no" on Roe? If so, I guess I deserve 20 lashes with a cat o' nine penumbras...

Burger was with Blackmun's majority on Roe. The only dissenters were Rehnquist and Byron White (JFK appointee, no less). Burger later admitted that Roe was a mistake, though, and sided with anti-Roe justices on several subsequent cases.

Chief Justice Burger's jurisprudence on Roe vs. Wade was explained in an in-depth two part article in the Sunday New York Times many yaers ago. He was on SCOTUS when the case was first argued, as was his lifelong friend and best man Herod Blackmun, who had formerly been general counsel of the Mayo Clinic (paid to argue that whatever doctors do is OK). However, when the case was argued, Justices Harlan and Black were sitting. Each had resigned before a decision could be issued. They were replaced by Rehnquist and Powell. Both Black and Harlan would probably have voted in favor of abortion. Rehnquist voted against Roe vs. Wade and has voted against abortion ever since.

Roe vs. Wade was re-argued for the benefit of the new justices Powell and Rehnquist. It was reasonable to believe that both of the new judges would be against abortion in Roe vs. Wade. Justice Byron White always voted against social revolution such as abortion.

Burger was pro-life as he reveailed in his final vote on the subject before leaving SCOTUS, saying he had long believed that Roe vs. Wade had been wrongly decided. Burger would have been the fourth justice against Roe vs. Wade. He needed one more vote and naturally turned to Herod Blackmun whose views were not yet know even by Burger to be as firmly pro-death as clearly they were later revealed to be. Burger and Blackmun had served as Best Man at each other's weddings. Burger and his wife spent the entire summer with Blackmun and his wife at a lakeside cottege trying to persuade Blackmun and wife that Blackmun should join a pro-life majority.

The decision of Blackmun in the case is a stew of irrationality and historical fantasy and ought to be read by each and every person who cares about this issue on either side. That leaves the question of whether Burger had been converted by Blackmun.

The Chief Justice is not just another vote on SCOTUS nor is he merely first in prestige. The Chief Justice has certain responsibilities to govern the flow of business there. The Chief Justice has many unique powers. Among these is the power to assign the writing of a decision of the majority of SCOTUS to whichever member of the court's majority he chooses. If the Chief Justice is in the minority, then his power in that respect devolves to the senior associate justice in the majority which would have been William O. Douglas.

Blackmun. Harvard law degree or not, was as much of a professional mediocrity as he was a moral embarassment. Powell turned out to be a prudish old fart who generally did not want to think much about cases involving sexuality and did not want to be seen as advancing moral agendas. William O. Douglas was certainly an evil justice but also an evil genius as any reader of his remarkably creative reasoning in Griswold knows.

If we think that the situation of the ongoing American holocaust of the unborn is bad under Blackmun's pathetic decision, flawed in every imaginable respect, pro-lifers ought to thank God that Burger was willing to be a magnificent hypocrite in voting against his conscience in the hope that he could someday fashion a pro-life majority against Blackmun's inferior decision. If the decision had been assigned BY William O. Douglas, it would have been assigned TO William O. Douglas and he probably would have crafted an invincible decision with the help of his old pals like Professor Thomas Emerson of the Yale University School of Law who had been the driving force behind Griswold.