The Burger Court and the Rise of the Judicial Right,
by Michael J. Graetz and Linda Greenhouse.
Simon and Schuster, 2016.
Hardcover, 468 pp., $30.
The two authors of this provocative book are card-carrying members of the legal elite, and their work is a revisionist effort to suggest the reactionary character of the United States Supreme Court under the Chief Justiceship of Warren Earl Burger (1969–1986). One of the authors, the Pulitzer-winning Linda Greenhouse, is the longtime Supreme Court correspondent for the New York Times, the paper of record for the liberal establishment. Indeed, in legal circles, she is credited with the creation of the “Greenhouse effect,” which refers not to global warming but rather to the phenomenon that occurs when Republican appointees to the Court, who have been placed there in order to promote strict construction of the United States Constitution and the tenets of conservative jurisprudence, instead seek to mold the law in a liberal direction in order to win Ms. Greenhouse’s approval.
Michael Graetz, who like Ms. Greenhouse has taught for many years at the Yale Law School, is now emeritus at Yale, and began his career teaching at the University of Virginia, where I once visited and made his acquaintance. He is one of the most brilliant tax law professors, and a Guggenheim fellow. These two titans appear to write from the same perspective, that widely shared in the Northeast, and that which dominated the Court before the Burger Court, during the time of Warren Earl Burger’s predecessor as Chief Justice, the startlingly similarly named Earl Warren (1953–1969).
As anyone with any familiarity with the Warren Court understands, that Court was something quite new in our national jurisprudence. Earl Warren, formerly the Attorney General of California and later its Governor, was a disappointed candidate for the Presidency, but when he reached the bench he may have had even more of a political impact because he and his colleagues transformed the understanding of the Constitution. Emboldened, perhaps, by the recent teaching in the law schools by the legal realists, who maintained that law, really, was just the particular policy preferences of judges, the Warren Court justices altered the previously prevailing rules of criminal procedure to offer greater protections to criminal defendants (many of whom were thought to be disadvantaged minorities); they declared that public schools could not mandate prayer or Bible reading; they overturned centuries of accepted political practice by declaring that the only constitutional basis for representation in the state legislatures was population (rejecting earlier prevailing notions that permitted one house of the legislature to be determined by pre-existing political divisions or by property holdings); and they ordered that state educational and other public facilities could not be segregated by race. The Warren Court did much more, but this is enough to suggest that its decisions seriously undermined the previously prevailing understanding that the state and local governments ought to be the primary law-givers in our republic (as the governments closest to the people), and that what the Justices of that Court were about was to substitute, in effect, the rule of federal ephors for that of the American people.
Since the time of Earl Warren, the principal activity of constitutional scholars has been to create theories that either defend the Warren Court (as such notables as Ronald Dworkin, Akhil Amar, and Lawrence Tribe have done), or to explain in exasperation how the Warren Court so horrifically strayed from the rule of law (as done, for example, by Herbert Wechsler, Learned Hand, and the late Justice Antonin Scalia). The Warren Court’s advocates have generally carried the day in the academy and in the press since that Court’s effort to protect the rights of minorities and, generally, to promote the liberal agenda of redistribution and increased equality, fits well with the politics that there prevails. Graetz and Greenhouse do not explicitly engage in this theoretical struggle. They seek rather to change the prevailing understanding of what the Burger Court did or did not accomplish, and in so doing, perhaps subtly to advance the progressive judicial agenda.
The currently prevailing understanding is that even though President Nixon was elected after strongly proclaiming his belief that the Warren Court went too far, and even after Nixon appointed Burger (and later Harry Blackmun) in the hope that they would reverse some of the Warren Court’s decisions, these hopes of conservatives like Nixon were to be frustrated as the Burger Court essentially failed seriously to alter the work of the Warren Court. That conventional wisdom was summed up in the words of Lewis Powell, a prominent member of the Burger Court who had been a former President of the American Bar Association and who was, at the time of his appointment by Richard Nixon, thought to be a reliable conservative. In 1986, Powell spoke before the American Bar Association meeting in New York, and declared “There has been no conservative counterrevolution by the Burger Court … None of the landmark decisions of the Warren Court was overruled, and some were extended” (p. 339).
Graetz and Greenhouse beg to differ. They argue, pursuant to a thorough review of the decisions of Burger Court and an examination of many of the papers of the Justices, that while the Warren Court’s “Constitution was an engine of social change,” and involved a “quest for greater equality,” by contrast, for the Burger Court “Equality took a backseat to other values: to the prerogatives of states and localities within the federal system, to the preservation of elite institutions, to the efficiency of the criminal justice system, to the interests of business, and above all, to rolling back the rights revolution the Warren Court had unleashed.”
In short, for Graetz and Greenhouse, Powell got it wrong, and the Burger Court did perpetrate a conservative counter-revolution. Let it be said that this is a well-written and informative book, one of the best on the history of the Court that I have read, and that as researchers and expositors of legal doctrines the two authors are outstanding. This is a nuanced, sophisticated, and comprehensive review of constitutional law decisions over several decades. It will prove to be an invaluable introduction to the work of the Burger Court for those who pick it up as a first guide to understanding what that Court did. It is difficult, however, to take seriously Graetz and Greenhouse’s attempt to suggest that Powell was in error. An objective reviewer of the work of the Burger Court, even one getting his or her information solely from this book, would come away persuaded of the existence of the Greenhouse effect on Blackmun, Powell, and probably Burger as well, and would conclude that overall, the Burger Court advanced the project of the Warren Court to reformulate rights and preserve the federal courts as dictators of much national policy.
There is some evidence of conservative behavior on the part of the Burger Court, of course, and Graetz and Greenhouse argue that their thesis is supported by decisions that limited the rights of criminal defendants (by allowing evidence discovered in unconstitutional searches obtained in good faith to be received, by restricting the possibility of habeas corpus, and by failing conclusively to find the death penalty unconstitutional); by the Burger Court’s failure to draw a firm line separating church and state (for example by allowing displays of crèches on public property); by that Court’s continuing to allow discrimination against homosexuals; and by the Court’s work in general “freeing businesses from burdensome regulations [and] elevating individualism over equality.” Still, just to mention a few factors, the Burger Court, as Powell noted, never actually overruled any of the great Warren Court decisions. While the Burger Court—to Graetz and Greenhouse’s dismay—never ruled that school districts had to be racially integrated across municipal boundaries, it did promote school busing to achieve racial balance. It also drove Nixon (who appointed several of its members) from office when it mandated disclosure of the White House tapes; it allowed the New York Times to publish materials from the Pentagon Papers; and, most importantly, it discovered a new right in the Constitution for women to terminate pregnancies. I, for one, find it difficult to consider that the record of a conservative Court.
On the whole, it would seem, the Burger Court followed the alarming trend, still decidedly current, that the Supreme Court feels little bound by prior precedent, by the original understanding of the Constitution, or, indeed, by the rule of law. A Court that can rule that gay marriage is dictated by the United States Constitution; that the Constitution need not be color-blind and that discriminating on the basis of race to achieve “diversity” is permissible; that those performing abortions may not be subjected to the same health and safety requirements as other purveyors of surgery; that prayer must be banned from the public square (or at least at public school graduations and football games)—all of which the Court has done in recent years—is not a Court that can be characterized as conservative, even if all of the progressive goals of Yale law professors have not yet been met.
Graetz and Greenhouse celebrate these “progressive” decisions of the Court, and seem to question other decisions that did, admittedly, favor the private sector, and occasionally overruled regulatory excesses (as a few decisions have continued to do). Overall, though, when one examines the recent behavior of the Court, and particularly what has happened since Justice Scalia’s untimely death, it is hard not to share Judge Richard Posner’s recent assessment that “the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them …” It is difficult to be optimistic about the future of constitutional or even private law. Much will depend on the next President, who will likely fill three or four vacancies on the Court. His or her appointments will determine whether there is anything at all left of John Adams’s notion that ours is a government of laws, not men.
Stephen B. Presser is the Raoul Berger Professor of Law Emeritus at Northwestern’s Prizker School of Law, the legal affairs editor of Chronicles: A Magazine of American Culture, and the author of the forthcoming Law Professors: Three Centuries of Shaping American Law (West Publishing).