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'The Burger Court and the Rise of the Judicial Right' challenges perception

Columbia law professor Michael Graetz and Pulitzer Prize-winner Linda Greenhouse argue that the idea that 'nothing much happened' under the Burger Court is a gross misconception.

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The Burger Court and the Rise of the Judicial Right
By Michael J. Graetz and Linda Greenhouse
Simon & Schuster
480 pp.

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Columbia law professor Michael Graetz and Pulitzer Prize-winner Linda Greenhouse are quite right in their landmark new book The Burger Court and the Rise of the Judicial Rightto point out that the 17-year tenure of Warren Burger as Chief Justice from 1969 to 1986 is typically seen as something of a bland placeholder term, a buffer between the towering liberal rulings of the Warren Court and the equally doctrinaire conservative span of the Renquist Court. Indeed, in the first few pages of their book they nod to Vincent Blasi's excellent 1983 "The Burger Court: The Counter-Revolution That Wasn't," the title of which reflects the perception – then and now – that except for a couple of landmark cases, the most famous of which was of course Roe v. Wade, “nothing much happened” on Burger's watch.

It's Graetz and Greenhouse's contention that this is a drastic misreading of the facts – that, in fact, the decisions of the Burger Court “in many ways shaped the society we live in today.”

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The Burger Court decided on 2,738 cases, and even in a book as densely packed as this one, our authors can only indulge in detailed accounts of a representative handful of these cases. They concentrate instead on broader social topics like race, crime, and business in order to create a framework for what turns out to be some thrillingly intelligent analysis of the ways the Burger Court handled the massive legacy it was handed by the Warren Court. 

Even in brief summary, that legacy was stunning in scope and daring. Criminal defendants gained the basic protections against self-incrimination and illegal evidence provided by Miranda v. Arizona; official segregation was declared unconstitutional; free legal counsel was provided for defendants in serious criminal cases who couldn't otherwise afford it; voting reapportionment made representation fairer. “For Earl Warren and his Court, the Constitution was an engine of social change,” Graetz and Greenhouse write. “It was the quest for greater equality – in schools, in the voting booth and the legislatures, in the courtroom – that drove constitutional interpretation.” 

Such an ambitious activist docket created a popular backlash among segments of the population worried about riots and rising crime rates, and in 1968 presidential candidate Richard Nixon took full advantage of that backlash, running a campaign that cannily traded on the rage, racism, and xenophobia that always lurks under the surface of the American electorate, ready to be tapped by any candidate willing to silence the better angels of his nature in order to gain the Oval Office. It worked for Nixon, and chance timing gave him the opportunity to appoint no less than four Supreme Court justices.

As Graetz and Greenhouse describe in detail, the newly constituted Burger Court never succeeded in outright overturning any of the Warren Court's signature rulings; but it immediately set to work weakening those rulings and sapping the strength from social and legal guarantees of equality before the law, until in many cases “only their facades were left standing.” The Burger court made it “remarkably easy” for a criminal suspect to waive his Miranda rights, or remarkably easy for the police to assert such a waiver took place. The efforts of Congress to curtail corporate contributions to political campaigns “cratered” in the Burger Court, providing the key precedent for today's Citizens United ruling that allows corporations to pour unlimited amounts of money into the political process. Barriers to desegregation were conceived; tacit government endorsements of Christianity were encouraged in defiance of the First Amendment; business interests were favored with casual regularity. 

Our authors do their best to be objective and balanced about all this, but when confronted with such an unrelenting record of perfidy in jurisprudence, they're sometimes forced to repeat themselves. “Criminal law would not be the only time that equality took a backseat to other values in Warren Burger's Supreme Court,” we're told at one point, and at another, “Equality took a backseat to other values” – those other values being, among other things, “the preservation of elite institutions” and “the interests of business.” Even the victory of Roe v. Wade in this telling becomes clearly almost a judicial accident, “something the Burger Court neither intended nor even necessarily understood” as the symbol of women's empowerment it turned out to be.

At every stage of this sorry story, Graetz and Greenhouse are tough but even-handed, dealing equally in personalities and precedents and creating some energetic reading along the way. But a little of “the preservation of elite institutions” and “the interests of business” goes a long way in the euphemism department, and the even-handedness occasionally grates. Our authors are wonderful at summing up but maddeningly diplomatic at times about handing down verdicts. The words “retrograde,” “punitive,” and “evil” are scarcely hinted at in 400 pages, but they won't be far from the minds of most readers as they watch some of the worst parts of our current legal atmosphere being created, one Burger ruling at a time.