The Burger Court and the Rise of the Judicial Right

by Michael J. Graetz, Linda Greenhouse

Overview

A revelatory look at the Warren Burger Supreme Court finds that it was not moderate or transitional, but conservative—and it shaped today’s constitutional landscape. It is an “important book…a powerful corrective to the standard narrative of the Burger Court” (The New York Times Book Review).

When Richard Nixon campaigned for the presidency in 1968 he promised to change the Supreme Court. With four appointments to the court, including Warren E. Burger as the chief justice, he did just that. In 1969, the Burger Court succeeded the famously liberal Warren Court, which had significantly expanded civil liberties and was despised by conservatives across the country.

The Burger Court is often described as a “transitional” court between the Warren Court and the Rehnquist and Roberts Courts, a court where little of importance happened. But as this “landmark new book” (The Christian Science Monitor) shows, the Burger Court veered well to the right in such areas as criminal law, race, and corporate power. Authors Graetz and Greenhouse excavate the roots of the most significant Burger Court decisions and in “elegant, illuminating arguments” (The Washington Post) show how their legacy affects us today.

“Timely and engaging” (Richmond Times-Dispatch), The Burger Court and the Rise of the Judicial Right draws on the personal papers of the justices as well as other archives to provide “the best kind of legal history: cogent, relevant, and timely” (Publishers Weekly).

Product Details

ISBN-13:	9781476732510
Publisher:	Simon & Schuster
Publication date:	06/06/2017
Edition description:	Reprint
Pages:	480
Sales rank:	552,997
Product dimensions:	5.40(w) x 8.30(h) x 1.20(d)

About the Author

Michael J. Graetz is a Professor of Law at Columbia Law School and the Justus S. Hotchkiss Professor of Law Emeritus at Yale University. He has previously published seven books and many articles on a wide range of public policy issues. He also served in important policy positions at the Treasury Department and was a John Simon Guggenheim Memorial Fellow and a fellow of the American Academy of Arts and Sciences.

Linda Greenhouse, recipient of the Pulitzer Prize and other major journalism awards, covered the Supreme Court for The New York Times for nearly thirty years. Since 2009, she has taught at Yale Law School and written a biweekly op-ed column on the Court as a contributing writer for the Times. She is a graduate of Radcliffe College, Harvard, and earned a master of studies in law degree from Yale Law School. This is her fourth book about the Supreme Court.

Read an Excerpt

The Burger Court and the Rise of the Judicial Right
On September 17, 1987, an extravagant celebration took place in Philadelphia to mark the bicentennial of the United States Constitution. A quarter of a million people lined the route for a parade that included a forty-foot replica of a parchment scroll: the Constitution deified. At 4:00 p.m., the hour at which the delegates to the Constitutional Convention had signed the document two hundred years earlier, a man stepped forward to ring a replica of the Liberty Bell. His abundant mane of white hair made him instantly recognizable. It was Warren E. Burger, the retired chief justice of the United States, who had ended his seventeen-year tenure a year earlier for the purpose of presiding over this very observance—which, as it happened, fell on his eightieth birthday.

Burger addressed the crowd: “If we remain on course, keeping faith with the vision of the Founders, with freedom under ordered liberty, we will have done our part to see that the great new idea of government by consent—by We the People—remains in place.”1

Burger’s call to keep faith with the Founders reflected one vision of the project they had launched with their “great new idea.” But it was not the only vision. Four months earlier, Justice Thurgood Marshall, who still sat on the Supreme Court, had offered a far more sober take on the meaning of the bicentennial in a speech to a bar group meeting on the Hawaiian island of Maui.

Marshall, the aging hero of the legal campaign to end racial segregation, and the first African American to sit on the Supreme Court, advised his audience to be wary of the “flagwaving fervor” surrounding the bicentennial. “The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy,” Marshall said, adding: “I cannot accept this invitation.” The government the Framers devised, he explained, “was defective from the start, requiring several amendments, a civil war, and momentous social transformation” to better realize the promise of a more just society. Credit for the Constitution in its present meaning belonged not to the Framers, Marshall concluded, but “to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality’ and who strived to better them.”2

The competition between these two narratives is in many ways the subject of this book.

From his appointment by President Dwight D. Eisenhower in 1953 until his retirement in the opening months of the Nixon administration in 1969, Chief Justice Earl Warren presided over a revolution in constitutional meaning. Official segregation by race came to an end. Criminal defendants acquired enforceable rights against compelled self-incrimination and illegally seized evidence. The political dominance that rural America held over the nation’s legislatures was ended by the new jurisprudence of one person, one vote. Organized prayer was ejected from public school classrooms.

The Warren Court’s overarching theme was equality. Reviewing his tenure, the chief justice told reporters that his Court’s three most important decisions were the reapportionment ruling (Baker v. Carr), the desegregation decision (Brown v. Board of Education), and the decision requiring that a lawyer be provided to any defendant facing a serious criminal charge who could not afford to hire one (Gideon v. Wainwright).3 All three were in the service of greater equality.

The Court’s activism produced public backlash. “Impeach Earl Warren” signs dotted lawns across the South—and elsewhere—for years before the Chief Justice retired in 1969. A sizable portion of the public attributed rising crime rates to judicial leniency. At the start of the 1968 election year, 63 percent told the Gallup Poll that courts were too soft on criminals, up from 48 percent three years earlier.4 A few months later, the Louis Harris poll reported that 81 percent of voters agreed with the statement that “law and order has broken down in this country.” Only 14 percent disagreed.5 Certainly, not all these uneasy voters saw the Supreme Court as the primary source of crime in the streets—there were, after all, riots in cities across the country—but the poll reflected a widespread sense of vulnerability among the law-abiding public.

Table of Contents

Introduction: A Counterrevolution Reclaimed 1

Part 1 Crime

1 The Fall and Rise of the Death Penalty 17

2 Taming the Trilogy 42

3 Closing the Federal Courthouse Doors 55

Part 2 Race

4 Still Separate, Still Unequal 79

5 Seeking a Higher Education 103

Part 3 Social Transformation

6 Privacy at a Price 133

7 The Rocky Road to Sex Equality 162

8 Expression and Repression 192

9 A Religious People's Court 215

Part 4 Business

10 Corporations Are People Too 243

11 Battling Workplace Inequality 269

Part 5 The Presidency

12 Power and Its Abuse 301

13 Richard Nixon in Warren Burgers Court 325

Conclusion: A Lasting Legacy 339

Appendix: The Members of the Burger Court 347

Acknowledgments 357

Notes 359

Photo Credits 439

Index 441

Editorial Reviews

This revelatory book resets how we think about the Constitution and the Supreme Court that interprets it. The Court led by Chief Justice Warren Burger is often seen as an afterthought, wedged between the Warren Court and the hard right Justices today. In fact the 1970s and 1980s set the pattern for decades of American life, on topics from campaign finance to presidential power to criminal law. With clarity and insight, Michael Graetz and Linda Greenhouse show how the often jumbled doctrines of that time helped produce the America of today.

Michael Waldman

A powerful corrective to the standard narrative of the Burger court . . . should change the way that period is perceived. . . . As this important book makes clear, courts, given time, can accomplish—or demolish—a great deal by degrees, leaving their successors to finish the job.

The New York Times Book Review - Jeff Shesol

"[A] landmark new book. . . . Thrillingly intelligent analysis of the ways the Burger Court handled the massive legacy it was handed by the Warren Court. . . .Graetz and Greenhouse are tough but even-handed, dealing equally in personalities and precedents and creating some energetic reading along the way."

Christian Science Monitor - Steve Donoghue

In this fresh and often surprising return to the Burger Court years, Graetz and Greenhouse show how that court, generally dismissed for failing to reverse the liberal arc of the Warren Court era, embedded significant conservative markers in areas of the law critical to consumers, women, prisoners, business, voters and others. Using the justices’ papers and their own deep understanding of the Supreme Court, the authors bring to life the complex personalities and internal struggles of the Burger Court in a changing nation. And, they offer the reader an accessible bridge from the outcomes of those struggles to landmark rulings in the Rehnquist and Roberts Courts. This illuminating trip through history is well worth taking.

Marcia Coyle

When the Supreme Court unanimously ruled against President Nixon in the famous 1974 Watergate Tapes Case that doomed his presidency, Nixon cursed the justices he had appointed. The myth grew that Nixon had failed to significantly move the Court to right. In their compelling, elegantly written analysis, two brilliant legal scholars (and clear-eyed explainers) convincingly demolish that myth.

Evan Thomas

"Ambitious and engaging. . . . 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 Washington Post - Justin Driver

04/25/2016
Veteran Supreme Court reporter Greenhouse (Becoming Justice Blackmun) and Graetz (Death by a Thousand Cuts) have written a detailed, accessible revisionist history of Warren Burger’s tenure as chief justice from 1969 to 1986. As the authors’ introduction explains, the “received wisdom” about those 17 years has been that “nothing much happened.” They convincingly argue that the Supreme Court decisions rendered during that era paved the way for more recent conservative landmark decisions such as the highly controversial 2010 Citizens United ruling on campaign finance. Chapter after chapter recounts the gradual erosion of the doctrines of the prior, progressive Earl Warren Court in virtually all areas of American life; for instance, while the expansion of the rights that had been granted to criminal defendants (e.g., Miranda warnings) survived, they did so as facades, as Burger’s court drastically limited their effectiveness. This is the best kind of legal history: cogent, relevant, and timely, given the focus on the Court’s role and power after the death of Justice Scalia. Agent: Wendy Strothman, Strothman Agency. (June)

Publishers Weekly

"Timely and engaging, Graetz and Greenhouse’s study provides a richly detailed look at the high court’s jurisprudence on the most heated issues of the past half-century. Even readers who follow the court’s work closely will find revelatory reporting."

Richmond Times-Dispatch - Jay Strafford

With crisp intelligence and notable fairness, The Burger Court and the Rise of the Judicial Right shows how quickly and profoundly politics can reshape the law of the land. The appointment of four conservative justices in the Nixon years led the Court to gut landmark rulings, empowering the judicial right in ways that still reign. Michael Graetz and Linda Greenhouse have written an engrossing and excellent book that will lead Court-watchers to think in importantly different terms about the Burger Court. The book also makes clear why, with openings expected soon on the current Court, it should be a paramount concern in the 2016 elections.

Lincoln Caplan

Michael Graetz and Linda Greenhouse’s wonderful book on the Burger Court is the best survey and analysis that I have seen of the actions and implications of the decisions of that Court. It will be indispensable for scholars as well as ordinary citizens interested in the political and constitutional history of that fraught period of time. It was a fascinating Court and worthy of close attention and analysis. The authors have done it justice.

John Ferejohn

With remarkable skill, Michael Graetz and Linda Greenhouse show how the Burger Court eroded the equality that underlay almost all the work of the Warren Court. They make a compelling case that it provided the vital seedbed that enabled the judicial right of the Rehnquist and Roberts eras to flower. This extraordinary book will engage everyone who cares about the contemporary Supreme Court and its history.

Laura Kalman

In The Burger Court and the Rise of the Judicial Right, Graetz and Greenhouse offer an insightful and intimate view of life and law behind the scenes in the Burger Court. By exploring the debates among the justices on such fundamental issues as women’s rights, abortion, the death penalty, religion, and racial equality, they offer exciting new perspectives on the interactions of the justices and the evolution of the law in the Court that was created by Richard Nixon.

Geoffrey Stone

An insightful and well-researched examination of the Burger Court." ---Library Journal Starred Review

From the Publisher

★ 03/15/2016
Columbia Law School professor Graetz (The End of Energy) and New York Times Pulitzer Prize-winning legal journalist Greenhouse (Becoming Justice Blackmun) combine expertise to provide an insightful and well-researched examination of the Burger Court, led by former chief justice Warren E. Burger (1907–95). This persuasive book emanates from seminars the authors taught at Yale and Columbia Law Schools, enhanced by observations of Columbia Law School faculty. The authors present a simple yet elegant thesis that challenges the conventional wisdom that the Burger Court merely "occupied a transitional role between the aggressively liberal Warren Court and the similarly aggressive conservatism of the Rehnquist Court." Accordingly, they unpack the implications of numerous Burger Court decisions, demonstrating that a great deal happened on the justice's watch. Thus, in five parts—Crime, Race, Social Transformation, Business, and the Presidency—they reveal the court's role in producing jurisprudence shaping the death penalty, voting rights, affirmative action, sex equality, expression and repression, religion, abortion, workplace inequality, and presidential power and abuse. VERDICT An excellent choice for aficionados of the Bob Woodward and Scott Armstrong's masterpiece, The Brethren: Inside the Supreme Court. [See Prepub Alert, 12/21/15.]—Lynne Maxwell, West Virginia Univ. Coll. of Law Lib., Morgantown

Library Journal

★ 2016-04-11
Two scholars, each distinguished in his or her respective fields, challenge received orthodoxies about the Burger Supreme Court while detailing how earlier breakthroughs in civil rights and criminal law were reversed or hollowed out.Graetz (Columbia Law School; The End of Energy: The Unmaking of America's Environment, Security and Independence, 2011, etc.) and Pulitzer Prize-winning former New York Times Supreme Court journalist Greenhouse (Yale Law School; The Supreme Court: A Very Short Introduction, 2012, etc.) break new ground in this study of the Supreme Court. What Chief Justice Warren Burger's (1907-1995) court actually did has been minimized over the years since he retired, and his years of service have been characterized as ones in which "nothing much happened." On the contrary, in this groundbreaking study, the authors establish beyond a doubt that Burger's court gutted the most significant rulings of the previous court. Graetz and Greenhouse proceed by subject area, following the court across the years, as the cumulative body of its decisions reversed many of the major accomplishments of its predecessors. The rights of criminal suspects or defendants were undermined. School integration was transformed into economic segregation, resulting in the reconstruction of barriers between races by restricting funding to each separate district. By insisting that prior intent to discriminate be proven before its effects could be considered, the court also undermined certain civil rights achievements. Free speech protections were transformed by the court's perverse use of the power to expand rights of business speech (advertising) and earlier nonexistent freedoms of corporations. Like all human agencies, the court was fallible, misjudging both the contemporary importance of some cases and the future effects of others. Nonetheless, the authors relentlessly demonstrate, it accomplished the reversals it set out to achieve. Two powerhouse law historians/journalists deliver a major contribution to the history of the Supreme Court.

Kirkus Reviews