The Burger Court and the Rise of the Jucicial Right
| Publication year | 2021 |
| Pages | 194 |
Michael J. Graetz and Linda Greenhouse (Simon & Schuster, 2016). 468 pages.
I think it could fairly be said that our history tells us that our chief justices had probably had more profound and lasting influence on their times and on the direction of the nation than most presidents have had."
Richard Nixon [1]
Thirty years having now gone by since Warren Burger retired as Chief Justice of the United States, it is probably safe to begin evaluating the work of his Court. Michael Graetz, a professor of law at Columbia and previously at yale, and Linda Greenhouse, the Pulitzer Prize-winning former Supreme Court correspondent for the New York Times, have done that. And they have done it well.
Their book is solid. There are thirteen chapters, loosely organized into five thematic parts. For example, Part One, "Crime", consists of the chapters on the death penalty, constitutional criminal procedure, and habeas corpus. Other parts deal with race, social transformation, business, and the presidency. The 355 pages of text are supported by 78 pages of endnotes.
The book's thesis is a double negative: It is not true that nothing much happened on Chief Justice Burger's watch. There was United States v. Nixon,[2] to be sure, in which a Court that included five of his own appointees repudiated the President who had appointed them and essentially forced him from office. And there was Roe v. Wade,[3] which attracted attention even at the time. But the real news, or so it was thought,[4] was that the work of the Warren Court was not dismantled. The authors disagree. What happened instead, they explain, is that while the Warren Court's precedents were left standing, they were hollowed out.
To illustrate: Chapter 2 is titled "Taming the Trilogy", a reference to the Warren Court's three leading cases on constitutional criminal procedure: Miranda v. Arizona,[5]Gideon v. Wainwright,[6] and Mapp v. Ohio.[7] The authors adduce nine cases that weakened Miranda by permitting the use of an un-mirandized confession for impeachment, limiting what constituted the predicate "custody", creating a "public safety exception", watering down the requirements for a valid waiver of Miranda rights,[8] and tolerating deceptive tactics in interrogation. In like fashion, the authors point to the undermining of Mapp through the creation of a "good faith" exception to the exclusionary rule, whereby evidence seized pursuant to an invalid warrant is nevertheless admissible if the officers relied on it in good faith,[9] and the "inevitable discovery" rule.[10] And while Gideon guarantees the assistance of counsel, the authors doubt, in light of Strickland v. Washington,[11] that it guarantees the effective assistance of counsel.
In the authors' view, Brown v. Board of Education[12]fared little better. De jure segregation remains illegal, but neighborhood schools are alive and well. In one case, San Antonio Independent school District v. Rodriguez,[13] the Court reversed the finding of a three-judge district court that Texas's system of school finance through local school taxes violated the Constitution. In two others, it reversed the orders of district courts that would, in each case, have consolidated racially imbalanced districts into a single larger, more balanced district. The earlier of these two cases was an appeal by the school board of Richmond, Virginia, of which Justice Powell had been a member. He recused himself, and the decision of the court of appeals reversing the district court was affirmed by an equally divided court.[14]Accordingly, the Court did not have, or need, a common rationale for its decision. The later of the two, Milliken v. Bradley,[15] arose in Detroit; there, the court of appeals had affirmed the district court but the now full Supreme Court reversed. According to the authors, the rationale emphasized the importance of local control of schools – and elided any state responsibility for segregation in Detroit.
The book is replete with such examples. In their conclusion, the authors quote Justice Powell's valedictory address to the American Bar...
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