The Burger years: rights and wrongs in the Supreme Court, 1969-1986.

• Author: Farber, Dan

The Burger Years: Rights and Wrongs in the Supereme Court, 1969-1986

When Warren Burger became chiefjustice, Richard Nixon was president and the United States was bogged down in the Vietnam war. Earl Warren, the prior chief justice, was the darling of liberals and anathema to conservatives. Burger was an imposing white-maned fellow who seemed more qualified by appearance than intellect for the job.

By the time Burger left the Court, Vietnam wasalmost forgotten and the Reagan presidency had begun to make liberals a little nostalgic for Nixon. Meanwhile, the Supreme Court had written many thousands of pages on everything from abortion to securities fraud. What did they add up to? What did the Burger Court contribute to the law?

This book*, a collection of 15 essays, is oneof the first attempts to assess the Burger Court. The essays grew out of a symposium in The Nation. Not surprisingly, the authors share a stalwart commitment to liberalism and take a dim view of the Burger Court. In style, they range from the journalistic to the dryly academic. They deal with a variety of subjects, from libel to antitrust. Three essays in particular illustrate the book's major strengths and weaknesses.

* The Burger Years: Rights and Wrongs in the Supreme Court,1969-1986. Herbert Schwartz, ed. Viking, $22.95.

The subject in the essay by former ACLU directorand current New York University law professor, Burt Neuborne, is access to the federal courts. The Warren Court loosened many of the traditional doctrines limiting civil rights suits in federal court. It is no news, as Neuborne suggests, that the Burger Court was markedly less enthusiastic about opening the courthouse doors, or that the Burger Court's holdings on this subject were more than a little muddled and inconsistent. Neuborne's criticisms of individual cases are often cogent. It is his larger thesis that is troublesome.

According to Neuborne, the roots of the BurgerCourt's confusion lie in the famous case of Marbury v. Madison, in which Chief Justice John Marshall declared the Court's power to overturn congressional enactments. Marshall based the Court's power on the need, in deciding individual cases, to apply all available legal rules, including the Constitution. Thus, for Marshall, the power to rule on constitutional issues derived from a court's general duty to construe the law in the course of deciding individual cases. Neuborne argues, however, that cases are simply convenient vehicles for...