WHY THE BURGER COURT MATTERED.

• Author: Strauss, David A.
• Position: Book review

The Burger Court and the Rise of the Judicial Right. By Michael J. Graetz and Linda Greenhouse. New York: Simon & Schuster. 2016. Pp. x, 345. Hardcover, $30; paper, $18.

INTRODUCTION

In his first term in office, President Richard Nixon appointed four justices to the U.S. Supreme Court, beginning with Chief Justice Warren Burger. It was not obvious, at first, how much difference the Nixon appointees would make. But even in retrospect--as Michael J. Graetz (1) and Linda Greenhouse (2) show in their important book, The Burger Court and the Rise of the Judicial Right--people have not realized how much the Burger Court mattered. The consensus, Gratz and Greenhouse say, is that the Burger Court "was a chapter of Supreme Court history during which nothing much happened" (p. 7). They quote, to that effect, Justice Lewis Powell, a central figure both on the Burger Court and in Graetz and Greenhouse's book. Powell remarked, just after Burger retired in 1986, that "[t]here has been no conservative counterrevolution by the Burger Court.... None of the landmark decisions of the Warren Court was overruled, and some were extended" (p. 339). A prominent book on the Burger Court is subtitled "The Counter-Revolution that Wasn't." (3)

Gratz and Greenhouse set out to overturn that consensus. Their engaging and comprehensive history of the Burger Court shows that that Court, whether or not it brought about a counterrevolution, was a critical turning point in the development of U.S. constitutional law. The book is full of important insights about the Court's work--both big-picture insights about the significance of the cases and biographical insights, drawn from the justices' papers, about how the justices thought about the issues and their colleagues. Graetz and Greenhouse's book should change not just the conventional wisdom about the Burger Court but our understanding of how constitutional law got to where it is now. It suggests how things might have turned out differently. And it reminds us of the ways in which constitutional law has moved in a decidedly conservative direction in the last half century.

I.

Burger succeeded Chief Justice Earl Warren. Among other things, the Warren Court ordered an end to legally mandated racial segregation in schools; (4) required that state legislatures be reapportioned according to the principle of "one person, one vote"; (5) ruled that public schools could not sponsor prayer in the classroom; (6) greatly strengthened the guarantees of free speech; (7) and expanded the rights of people accused of crimes. (8) In Nixon's successful 1968 campaign, he explicitly attacked the Warren Court. He made no secret of his agenda for the Court: he wanted to appoint justices who would take a different approach, particularly to criminal defendants' rights. And Nixon, presented with four vacancies in his first term, got his opportunity. By way of comparison, only one president since Nixon--Ronald Reagan--filled even three seats.

Burger was a known critic of the Warren Court's decisions, especially those dealing with criminal justice. Harry Blackmun--Nixon's second successful appointment, after two nominations had failed--had been a lifelong friend of Burger's, and Burger, who appears to have had some questionable contacts with the Nixon White House while he was chief justice, (9) vouched for Blackmun. (10) Nixon's other two appointees were Powell, a prominent lawyer from Richmond, Virginia, and William Rehnquist, a forty-seven-year-old official in the Department of Justice. Meanwhile, three of the justices Nixon replaced--Earl Warren, Hugo Black, and Abe Fortas--had consistently supported the Warren Court's most controversial decisions, including those Nixon attacked. The fourth justice whom Nixon replaced was John Marshall Harlan, who had dissented from several of the Warren Court's landmark decisions. But Harlan's replacement was Rehnquist, who, Graetz and Greenhouse say, "was closely affiliated with the [Republican] party's most conservative wing" (p. 353), so that appointment, too, moved the Court to the right.

So the stage was set for a dramatic change. It is true that, as Powell said, the Burger Court did not overrule the Warren Court's most famous decisions. But Graetz and Greenhouse show how the Burger Court nonetheless moved constitutional law in a decidedly conservative direction. Three broad themes emerge from their account.

First, the Burger Court did not need to overrule important Warren Court decisions, because it "eviscerated them" (p. 43) by making those decisions much less effective in accomplishing their purposes. That was particularly true of many of the decisions that expanded criminal defendants' rights. For example, the Court limited the effectiveness of Miranda v. Arizona (11) by narrowing the circumstances in which officers must give the warnings required by that case (pp. 44-46). In Mapp v. Ohio the Warren Court had applied to the states the Fourth Amendment exclusionary rule, which forbade the use of evidence produced by an illegal search; (12) the Burger Court cut back on situations in which the exclusionary rule applied (pp. 48-49). And while Gideon v. Wainwright, (13) which required states to appoint lawyers for criminal defendants who could not afford them, was never drawn into question, the Burger Court made it much harder for convicted defendants to show that their lawyers had been ineffective (pp. 51-54).

The Burger Court also made it much more difficult for state criminal defendants to assert their rights in federal court (pp. 339-40). An individual who is being held by a state government may assert that his detention violates the Constitution by petitioning in federal court for a writ of habeas corpus. When habeas petitioners have been convicted of a state crime but assert that their constitutional rights were violated at trial, the question is how far the federal court may go in reexamining what the state court did. The Warren Court opened that door quite wide; the Burger Court, in an important series of cases, closed it (pp. 65-74).

Second, Graetz and Greenhouse show that the Burger Court, even if it did not effect the counterrevolution itself, paved the way for later Courts to move the law in a much more conservative direction (p. 344). Paradoxically, this was the effect of Burger Court decisions that were applauded by many liberals because those decisions seemed to expand the right of free speech under the First Amendment. The 1976 decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., established that commercial speech is protected by the First Amendment. (14) But a lot of economic activity arguably takes the form of speech, so the commercial speech decisions have been used by later Courts as a way of preventing governments from regulating business. (15) In Buckley v. Valeo, the Burger Court invalidated some of the campaign finance regulations that were enacted after the Watergate scandal. (16) The principles the Court announced in Buckley have governed that area ever since, and more recent Courts have invoked those principles to keep the government from limiting the role of money in elections. (17)

Third, Graetz and Greenhouse show that even when the Burger Court did not overturn Warren Court precedents, it permanently changed the trajectory of constitutional law. Three cases that the Burger Court decided in the mid-1970s--San Antonio Independent School District v. Rodriguez, (18) Milliken v. Bradley, (19) and Washington v. Davis (20)--were especially important turning points. Each of those cases terminated constitutional developments that the Warren Court had initiated and that otherwise might have changed U.S. society in significant ways. As Graetz and Greenhouse say, the Burger Court "doomed to failure the Warren Court's effort [s]" to move the law in a more egalitarian direction (p. 99).

II.

In my view, these three cases, more than anything else the Burger Court did, show the effect that Court had on constitutional law and reveal the most about the Burger Court's place in U.S. constitutional history. In many ways, Rodriguez, Milliken, and Washington v. Davis--decided within a three-year period--belong to a single chapter of constitutional history, a chapter that marked a decisive and, as far as we can tell today, permanent end to the core missions of the Warren Court.

Rodriguez. Toward the end of its tenure, the Warren Court began, tentatively, to suggest that the Constitution might be used to combat economic inequality. This was a natural step for the Warren Court to take. The central theme of the Warren years was the Court's attack on racial discrimination. Not only did the treatment of poor people seem to have much in common...