Academic journal article Michigan Law Review

Why the Burger Court Mattered

Academic journal article Michigan Law Review

Why the Burger Court Mattered

Article excerpt


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.


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. Graetz1 and Linda Greenhouse2 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.


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-yearold 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. …

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