The Burger Court: Counter-Revolution or Confirmation?

The Burger Court: Counter-Revolution or Confirmation?

The Burger Court: Counter-Revolution or Confirmation?

The Burger Court: Counter-Revolution or Confirmation?


Warren E. Burger served as Chief Justice of the Supreme Court from 1969 to 1987, an often tumultuous period in which the Court wrestled with several compelling constitutional issues. United States v. Nixon set the stage for the resignation of a President; Roe v. Wade created a nationwide debate that is as divisive today as ever before; Lemon v. Kurtzman attempted to enunciate a clear standard for vexing church-state issues; and the "Pentagon Papers" case was a landmark freedom-of-the-press decision. An impressive collection of writings by legal scholars and practitioners, including many by people who worked directly or indirectly with the Court itself, The Burger Court is the first truly systematic review of the Court's activity during Warren Burger's tenure. Such distinguished contributors as Derrick Bell, Robert Drinan, Anthony Lewis, and Mark Tushnet review individual cases and jurisprudential trends in order to render comprehensive judgments of the Court's accomplishments and shortcomings. The essays in this volume were gathered by the late Bernard Schwartz, one of America's most revered scholars of constitutional law and the editor of this book's well-received predecessor, The Warren Court: A Retrospective (OUP, 1996). As the finest overview to date of this Court's legacy and significance, The Burger Court will greatly interest anyone with a taste for constitutional issues or recent American history.


Bernard Schwartz, the editor of this volume, died on December 23, 1997, after being struck by a car as he crossed the street. At the time of his death, this book was substantially complete. All of the essays had been written, and he had finished his editing. Ironically, the edited texts had been sent to contributors the very day he died.

Professor Schwartz was the quintessential scholar. Author of more than sixty books and literally hundreds of articles he pursued the lore of the law with a youthful passion. In the last full academic year of his life, he published five books. Yet for him, scholarship was no arid occupation. He ferreted out facts with the zeal of a cub reporter and the energy of a mountain lion. And once he had the facts, he turned them and churned them and analyzed them, and then he thought them over again.

His "personal" jurisprudence was very sympathetic to that of Earl Warren and William Brennan; he was Warren's biographer and Brennan's friend. Yet he loved the Supreme Court so deeply that he never closed his mind to other philosophies. Once a friend made a slighting remark about Chief Justice Burger in Schwartz's presence. "No, no," he interrupted, "Burger has made outstanding contributions." He had a passion for fairness and accuracy and balance.

Bernard Schwartz graduated Phi Beta Kappa from the City College of New York and received his law degree from New York University. Subsequently, he received his masters and doctoral degrees from Harvard. He also received an LL.D from Cambridge University and a doctorat d'université from the University of Paris. He joined the N.Y.U. Faculty of Law in 1947 and taught there for 45 years before retiring in 1992 as Edwin D. Webb Professor of Law. Shortly thereafter he became the Chapman Distinguished Professor of Law at the University of Tulsa, the position he held at his death.

While the history and jurisprudence of the Supreme Court was his greatest concern, Professor Schwartz was also a recognized authority on administrative law, a regular object of his contributions to law reviews, particularly to the University of Tulsa Law Journal and to the AdLaw Bulletin. His article, "A Decade of Administra-

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