The Burger Court and the Rise of the Judicial Right

The Burger Court and the Rise of the Judicial Right

by Michael J. Graetz, Linda Greenhouse


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A revelatory look at the Warren Burger Supreme Court finds that it was not moderate or transitional, but conservative—and it shaped today’s constitutional landscape. It is an “important book…a powerful corrective to the standard narrative of the Burger Court” (The New York Times Book Review).

When Richard Nixon campaigned for the presidency in 1968 he promised to change the Supreme Court. With four appointments to the court, including Warren E. Burger as the chief justice, he did just that. In 1969, the Burger Court succeeded the famously liberal Warren Court, which had significantly expanded civil liberties and was despised by conservatives across the country.

The Burger Court is often described as a “transitional” court between the Warren Court and the Rehnquist and Roberts Courts, a court where little of importance happened. But as this “landmark new book” (The Christian Science Monitor) shows, the Burger Court veered well to the right in such areas as criminal law, race, and corporate power. Authors Graetz and Greenhouse excavate the roots of the most significant Burger Court decisions and in “elegant, illuminating arguments” (The Washington Post) show how their legacy affects us today.

“Timely and engaging” (Richmond Times-Dispatch), The Burger Court and the Rise of the Judicial Right draws on the personal papers of the justices as well as other archives to provide “the best kind of legal history: cogent, relevant, and timely” (Publishers Weekly).

Product Details

ISBN-13: 9781476732510
Publisher: Simon & Schuster
Publication date: 06/06/2017
Edition description: Reprint
Pages: 480
Sales rank: 352,859
Product dimensions: 5.40(w) x 8.30(h) x 1.20(d)

About the Author

Michael J. Graetz is a Professor of Law at Columbia Law School and the Justus S. Hotchkiss Professor of Law Emeritus at Yale University. He has previously published seven books and many articles on a wide range of public policy issues. He also served in important policy positions at the Treasury Department and was a John Simon Guggenheim Memorial Fellow and a fellow of the American Academy of Arts and Sciences.

Linda Greenhouse, recipient of the Pulitzer Prize and other major journalism awards, covered the Supreme Court for The New York Times for nearly thirty years. Since 2009, she has taught at Yale Law School and written a biweekly op-ed column on the Court as a contributing writer for the Times. She is a graduate of Radcliffe College, Harvard, and earned a master of studies in law degree from Yale Law School. This is her fourth book about the Supreme Court.

Read an Excerpt

The Burger Court and the Rise of the Judicial Right Introduction A Counterrevolution Reclaimed
On September 17, 1987, an extravagant celebration took place in Philadelphia to mark the bicentennial of the United States Constitution. A quarter of a million people lined the route for a parade that included a forty-foot replica of a parchment scroll: the Constitution deified. At 4:00 p.m., the hour at which the delegates to the Constitutional Convention had signed the document two hundred years earlier, a man stepped forward to ring a replica of the Liberty Bell. His abundant mane of white hair made him instantly recognizable. It was Warren E. Burger, the retired chief justice of the United States, who had ended his seventeen-year tenure a year earlier for the purpose of presiding over this very observance—which, as it happened, fell on his eightieth birthday.

Burger addressed the crowd: “If we remain on course, keeping faith with the vision of the Founders, with freedom under ordered liberty, we will have done our part to see that the great new idea of government by consent—by We the People—remains in place.”1

Burger’s call to keep faith with the Founders reflected one vision of the project they had launched with their “great new idea.” But it was not the only vision. Four months earlier, Justice Thurgood Marshall, who still sat on the Supreme Court, had offered a far more sober take on the meaning of the bicentennial in a speech to a bar group meeting on the Hawaiian island of Maui.

Marshall, the aging hero of the legal campaign to end racial segregation, and the first African American to sit on the Supreme Court, advised his audience to be wary of the “flagwaving fervor” surrounding the bicentennial. “The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy,” Marshall said, adding: “I cannot accept this invitation.” The government the Framers devised, he explained, “was defective from the start, requiring several amendments, a civil war, and momentous social transformation” to better realize the promise of a more just society. Credit for the Constitution in its present meaning belonged not to the Framers, Marshall concluded, but “to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality’ and who strived to better them.”2

The competition between these two narratives is in many ways the subject of this book.

From his appointment by President Dwight D. Eisenhower in 1953 until his retirement in the opening months of the Nixon administration in 1969, Chief Justice Earl Warren presided over a revolution in constitutional meaning. Official segregation by race came to an end. Criminal defendants acquired enforceable rights against compelled self-incrimination and illegally seized evidence. The political dominance that rural America held over the nation’s legislatures was ended by the new jurisprudence of one person, one vote. Organized prayer was ejected from public school classrooms.

The Warren Court’s overarching theme was equality. Reviewing his tenure, the chief justice told reporters that his Court’s three most important decisions were the reapportionment ruling (Baker v. Carr), the desegregation decision (Brown v. Board of Education), and the decision requiring that a lawyer be provided to any defendant facing a serious criminal charge who could not afford to hire one (Gideon v. Wainwright).3 All three were in the service of greater equality.

The Court’s activism produced public backlash. “Impeach Earl Warren” signs dotted lawns across the South—and elsewhere—for years before the Chief Justice retired in 1969. A sizable portion of the public attributed rising crime rates to judicial leniency. At the start of the 1968 election year, 63 percent told the Gallup Poll that courts were too soft on criminals, up from 48 percent three years earlier.4 A few months later, the Louis Harris poll reported that 81 percent of voters agreed with the statement that “law and order has broken down in this country.” Only 14 percent disagreed.5 Certainly, not all these uneasy voters saw the Supreme Court as the primary source of crime in the streets—there were, after all, riots in cities across the country—but the poll reflected a widespread sense of vulnerability among the law-abiding public.

Table of Contents

Introduction: A Counterrevolution Reclaimed 1

Part 1 Crime

1 The Fall and Rise of the Death Penalty 17

2 Taming the Trilogy 42

3 Closing the Federal Courthouse Doors 55

Part 2 Race

4 Still Separate, Still Unequal 79

5 Seeking a Higher Education 103

Part 3 Social Transformation

6 Privacy at a Price 133

7 The Rocky Road to Sex Equality 162

8 Expression and Repression 192

9 A Religious People's Court 215

Part 4 Business

10 Corporations Are People Too 243

11 Battling Workplace Inequality 269

Part 5 The Presidency

12 Power and Its Abuse 301

13 Richard Nixon in Warren Burgers Court 325

Conclusion: A Lasting Legacy 339

Appendix: The Members of the Burger Court 347

Acknowledgments 357

Notes 359

Photo Credits 439

Index 441

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