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Bar News - August 17, 2016

Book Review: Burger Court Book a Compelling Piece of History and Literature


The Burger Court and the Rise of the Judicial Right
By Michael J. Graetz and Linda Greenhouse
Hardcover, 480 pages

In August 1986, “a weary Lewis Powell, fresh from the trauma of Bowers v. Hardwick,” addressed the annual meeting of the American Bar Association in New York City, write the authors of The Burger Court and the Rise of the Judicial Right. Speaking of the legacy of the Burger Court, Powell concluded, “There has been no conservative counterrevolution by the Burger Court.” Indeed, Powell continued, “None of the landmark decisions of the Warren Court were overruled, and some were extended.” True enough, Miranda was not overruled, but in criminal law and procedure, co-authors Linda Greenhouse and Michael J. Graetz rightly conclude the Burger Court made sure that, “Today, the police hardly ever lose.” This book emphatically shows that Justice Powell got it wrong: The Burger Court matters. It mattered then and it matters now.

Bowers v. Hardwick is a good example. In 1986, the Court narrowly held that a gay man’s private sexual relationship was not entitled to a constitutional right of privacy. Reflecting on the decision later, Powell thought sodomy laws were “now moribund and rarely enforced,” and so “the case may not be as significant as press reports suggest.” It took 17 years for the Court to reverse itself in Lawrence v. Texas, and 29 years to give same-sex couples due process and equal protection rights in Obergefell v. Hodges.

Any follower of our sometimes tortured interpretations of the Constitution should read The Burger Court and the Rise of the Judicial Right. It is magisterial. It has great authority and it is masterful, assured, commanding and assertive. This book succeeds as literature too, echoing William Faulkner: “The past is never dead. It’s not even past.” In case after case the Burger Court’s legacy sounds loud, clear and troubling today. Citizens United, Hobby Lobby, Fisher v. University of Texas, and literally dozens of other current disputes have deep roots in cases decided by the Burger Court.

The co-authors show how hollow Powell’s dismissive comments to the ABA ring today. Better still, the book is filled with fascinating details about Court deliberations drawn from recently available records of some former justices. The Court’s opinions are succinctly set out and then compared with the justice’s notes from pre-argument memos, comments from post-argument conferences, and disputes during the drafting process.

This is first-class history, exhaustively researched and easy to read, especially if you are a lawyer or otherwise well read in the law. Even in areas of the law in which I specialize, and where I admit I looked for missed details, they did not miss a stroke. I would not, however, recommend this book to a newcomer to Supreme Court cases.

The authors carefully keep their own views to one side. Still, there are heroes and villains. Indisputably one of the heroes is Ruth Bader Ginsburg. And Lewis Powell emerges as a significant force on the Court. All of the justices get a thorough going over.

Race and poverty issues do not fare well before the Burger Court. Affirmative action “barely survives” the Burger Court, and minorities face legal hurdles twice those of whites. In proving discrimination, minorities must show unlawful intent, a high burden in the best of cases. In seeking redress through affirmative action, after Bakke, they are subject to “strict scrutiny,” meaning that even with the best of intent affirmative action programs must show they are furthering a “compelling interest” by “the least restrictive means.”

And “corporations are people, too,” following the Court’s 1978 First National Bank of Boston v. Bellotti, a decision that gave corporations a First Amendment right to spend money in politics, just one short step from today’s Citizens United decision. In other areas as well, the Burger Court clearly tilted towards business, giving employers the benefit of the doubt as to motive in both labor disputes and in employment discrimination claims.

Any discussion of the Burger Court has to include United States v. Nixon and Roe v. Wade. In the former, as in Bush v. Gore, the Court decided who got to sit in the Oval Office. But really, say the authors, US v. Nixon had a different outcome: “It ratified a constitutional basis for claims of executive privilege... A stronger presidency, insulated in important ways from liability and accountability, is one more lasting legacy of the Burger Court.” And lost in history is the fact that in Roe, the Burger Court 7-2 decision was joined by five of the Court’s six Republican-appointed justices.

On race, poverty, and crime Ronald Reagan set the tone, calling for admitting evidence that proved crimes regardless of the exclusionary rule, limiting access to habeas corpus, and expanding use of the death penalty, and the Burger Court responded. But it was different back then. Reagan, “Drawing a breathtakingly explicit link between race and crime, [said]: ‘There can be no economic revival in ghettos when the most violent among us are allowed to roam free.’” In our current presidential contest, that is not “breathtaking,” it’s commonplace. Seeing antecedents in the Burger Court gives me some sorely needed perspective, which is only one of the reasons I say you should read this superb book.

James Allmendinger

James Allmendinger, a solo practitioner in Durham, has practiced labor and employment law for 39 years, mostly representing public sector unions.

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