Justin Driver is a law professor at the University of Chicago, and is writing a book exploring how the Supreme Court’s opinions have shaped the nation’s public schools.
After President Richard Nixon tapped Judge Warren Burger to replace outgoing Chief Justice Earl Warren in 1969 and then appointed three more justices during his first presidential term, many legal liberals feared that this cohort would systematically overturn the Warren court’s most esteemed precedents, including Brown v. Board of Education and Miranda v. Arizona. But a curious thing happened next: The dreaded day of reckoning never materialized. This surprising outcome was captured in an influential 1983 volume of essays on the Burger court subtitled “The Counter-Revolution That Wasn’t.” Justice Lewis F. Powell Jr., who served with Burger for 15 years, amplified this perception in a speech to the American Bar Association in 1986, the final year of Burger’s tenure: “There has been no conservative counter-revolution by the Burger court. None of the landmark decisions of the Warren court was overruled, and some were extended.”
Michael J. Graetz and Linda Greenhouse’s ambitious and engaging new book seeks to dislodge this conventional account of the Burger court. Even if that institution did not explicitly overrule key Warren court contributions, Graetz and Greenhouse contend that the dominant assessment of the Burger years severely understates the legal transformation that occurred during this period. “The Burger Court dramatically diminished the scope and impact of the Warren Court precedents: they survived, but only their façade was left standing,” the authors conclude. While Brown’s prohibition on racial segregation technically remained good law, they note, the Burger court curtailed its import by placing geographic limitations on busing and by refusing to invalidate expenditure plans that left inner-city schools underfunded. Similarly, the authors observe that, while police officers were formally required to inform arrested suspects of their Miranda rights, the Burger court hollowed out the decision by introducing major exceptions.
Instead of comparing the Burger court only with its institutional predecessor, the authors also examine the institution in light of its two successors: the Rehnquist court, beginning in 1986, and the Roberts court, beginning in 2005. Graetz and Greenhouse argue that on a wide array of issues — from presidential power to corporate power, from the establishment clause to the equal protection clause — it is impossible to understand the conservative shifts enacted by the Rehnquist and Roberts courts without first comprehending the body that initiated the rightward trajectory. As the authors contend, “Warren Burger’s Court played a crucial role in establishing the conservative legal foundation for the even more conservative Courts that followed.”
In recent decades, law professors have treated the Burger court as the nation generally has treated disco, lava lamps, acid-washed jeans and other cultural detritus from that bygone era: The less said, the better. Graetz and Greenhouse’s work serves as an important corrective, demonstrating that the Burger court demands far more sustained scrutiny and analysis than legal scholarship has generally afforded it. Readers interested in the Supreme Court’s role in American society during the second half of the 20th century will gather significant insight from this book’s elegant, illuminating arguments.
The authors eschew a purely court-centric narrative by deftly situating the institution within the country’s larger political milieu. For instance, to the extent that Burger as an individual is remembered at all nowadays, it is generally as “the Chief Justice from central casting,” on account of his shock of white hair, rich baritone and grandfatherly mien. But Graetz and Greenhouse helpfully remind us that Burger did not sit idly by, simply waiting to be discovered; instead, he actively auditioned for the role. As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Burger delivered a series of speeches and articles linking the nation’s rise in violent crime to meddlesome judicial decisions that rendered it difficult to convict even obviously guilty criminal defendants. “Justice is far too important to be left exclusively to the technicians of the law,” Burger lamented in 1967, noting that the Warren court’s criminal-procedure opinions had become “common talk in the best clubs and the worst ghettos.” These remarks — including the none-too-subtle racial tint — perfectly anticipated the anti-Warren-court rhetoric that Nixon wielded to help propel himself into the White House.
For all its considerable virtues, the book sometimes strains to construe the Burger court as a relentlessly conservatizing force instead of the more heterodox institution that it actually was. Consider how it frames perhaps the Burger court’s two most enduring arenas of controversy: abortion and affirmative action. With the former, the book emphasizes the Burger court’s refusal to expand upon Roe v. Wade, which invalidated broad laws restricting abortion in 1973, by requiring governmental entities to provide indigent women with the financial resources necessary to secure abortions. With the latter, the book acknowledges its historic decision upholding race-conscious admissions practices in 1978, but bemoans that the opinion’s diversity rationale “allowed disappointed white applicants to claim that their rejection was illegal because it was based on race” and thus “bestowed on future courts a basis for eliminating affirmative action altogether.”
Clearly, the authors wish that the Burger court went further in addressing these momentous questions. Yet it seems mistaken to portray the court’s interventions primarily as either moving the nation in a rightward direction or somehow promoting an inchoate version of Federalist Society dogma. Indeed, legal liberals who read this volume today — in the age of Citizens United and the dismantling of the Voting Rights Act — could find themselves in the improbable position of feeling nostalgic for the Burger court’s old-time religion.
Still, even when the book’s arguments may not fully persuade, they invariably provoke serious thought on how legal decisions made in our nation’s relatively recent past could have assumed a radically different form. As the Supreme Court’s ninth seat has now sat unoccupied for roughly four months since Justice Antonin Scalia’s death, contemplating the possibilities that appear on the judicial horizon has seldom presented a more urgent task.
By Michael J. Graetz and Linda Greenhouse
Simon & Schuster.
468 pp. $30