THE BURGER YEARS Rights and Wrongs in the Supreme Court 1969-1986 Edited and with an introduction by Herman Schwartz Viking/Elisabeth Sifton. 293 pp. $22.95
The prevailing view in 1969, a view feared by some and applauded by many, was that the creators of the Burger court -- Richard Nixon and his attorney general John Mitchell -- wanted the court to wage judicial counterinsurgency. That the Burger court defied such expectations and instead carved an independent niche, often unrelated to the Warren court legacy it was supposed to attack, is the undoubted fact of 1987.
To the extent that events confounded prediction, the court under Warren E. Burger bore witness to an old truth, amusingly phrased by Laurence Tribe: "Whoever lives by the crystal ball soon learns to eat ground glass." This has been true -- fortunately -- of most attempts over the years to steer the court along a predetermined political path, or to predict what it would do.
The present volume originated as a symposium in The Nation magazine. Hence most of these pieces carry a heavy flavoring of Nation doctrine -- a presumption that "right" decisions sympathize with the claims of minorities and unions, favor scrupulous regard for due process (liberally interpreted) and are solicitous of the mentally ill, the physically handicapped and prisoners.
Given these presumptions, it is no surprise that most of the contributors find the Burger court more often wrong than right. It is charged, for instance, with constricting access to the courts, diluting the antitrust laws and in various ways eroding the protections of the Bill of Rights. But even when artfully masked in jurisprudential theory, ethically judgmental categories are unsatisfactory for analyzing Supreme Court work. This is especially true of the Burger court, whose overall record is nothing if not pragmatic. In instance after instance the essayists announce that the Burger court's record in a given area of the law does not run to a pattern -- only to proceed then to discover a pattern and to convict the court of falling short of Nation-like standards.
This political advocacy dressed as judicial analysis produces a collection that is perhaps longer on complaint than seems strictly justified. There are exceptions. Lyle Denniston on press law, Norman Redlich on church/state relations and Alan Morrison on administrative law seem to do a bit less ax-grinding than is the norm.
But in general the finding is that when the Burger court did address the issues agitated by Nixon in the 1968 campaign (mainly, the Warren court's alleged coddling of "criminal forces") it retreated from the Warren court's positions, though not so far as liberals feared.
The Burger court in the early and mid-1980s softened the Miranda warning requirements with "good faith" and "public safety" exceptions. But as Yale Kamisar notes, as recently as 1986 -- Burger's last year as chief justice -- there were six votes for the proposition that Miranda "embodies a carefully crafted balance designed to fully protect both the defendants' and society's interests." This was not exactly a ringing endorsement; but it was far more supportive of the Miranda rules than the Warren-court bashing of 1966-69 might have led one to expect. Likewise, the exclusionary rule, which bars the use of illegally obtained evidence, survived the Burger era, when many supposed that it might not.
Meanwhile, the Burger court broke new ground. It upheld cross-busing for school integration. The abortion decision pushed outward the boundaries of constitutional privacy. The 14th Amendment was found to hold previously unnoted implications for sexual equality. On capital punishment and press law the Burger court reached holdings that did not displease liberals, though in the former matter it did not take the hoped-for step of abolition and in the latter the result was a bit ambiguous.
In one of the more original contributions, Denniston argues that in press law the Sullivan libel precedent of 1964 led towards a sort of trap. The "malice" test, which emphasized the journalist's state of mind at the time the defamation occurred, has been held to permit various intrusive inspections of the thoughts, files and working notes of reporters and editors. Denniston, then, leaves us with a question mark as to where the Sullivan doctrine is taking us.
As perspective deepens, the Burger court will almost certainly be viewed as a tempering factor, at a time when the political trend was distinctly reactive. It consolidated some of the most valuable legacies of the Warren court -- in criminal due process, search and seizure, racial equality before the law -- sometimes with modifications, sometimes even with bolstering elaborations. Here, the threads of the carpet are competently traced and appraised. As for the pattern, it is likely to disclose itself when we have achieved a bit more distance from the recent past than we enjoy today. The reviewer is a syndicated columnist for The Washington Post Writers Group.