Opening the Door to a Conservative Court

In March 1969, Warren Burger, a judge on the United States Court of Appeals for the District of Columbia, wrote a letter to a friend named Harry Blackmun, also a federal judge, denouncing the Supreme Court for its “subversion of the law.” Burger, in the late ’60s, had been sharply critical of the court’s expansion of the rights of criminal defendants; one of his more provocative speeches earned him the admiration of Richard Nixon, who won the presidency in 1968 on a platform of law and order. Burger’s name began to appear on lists of potential successors to Chief Justice Earl Warren, who had announced his intention to retire. In his letter to Blackmun, Burger expressed unease about the job: “What can one man do to stop the nonsense? RN can only straighten that place out if he gets four appointments.”

Which Nixon did, in short order. Burger became the first, only weeks after writing Blackmun — who, in 1970, became the second. Lewis Powell and William Rehnquist joined them less than two years later. How well they managed, collectively, to “straighten that place out” by reversing the Warren court’s rights revolution is open to question. Thirty years after Burger’s retirement, the prevailing view among historians and commentators is that the Burger court, rudderless and riven by conflict, stalled somewhere along the road to counterrevolution, falling well short of its chief’s ambitions. Not only did it fail to overturn the landmark decisions of its predecessor, the argument goes, but its centrist majority legalized abortion, upheld the use of affirmative action in university admissions and took the first steps toward ensuring equal rights for women. The legal scholar Bernard Schwartz wrote years ago that eventually, liberal critics might look back on the Burger years “with more than a little nostalgia.”

Not so, say Michael J. Graetz and Linda Greenhouse. In “The Burger Court and the Rise of the Judicial Right,” Graetz, a professor at Columbia Law School, and Greenhouse, the former Supreme Court correspondent for The New York Times, characterize the Burger court as more conservative than is generally understood. Its jurisprudence, they acknowledge, is complex and often contradictory, but on the whole they see a clear, even dramatic, shift from the preceding era. If the “theme” of the Warren court was equality before the law, they contend, then under Burger, “equality took a back seat to other values: to the prerogatives of states and localities, . . . to the efficiency of the criminal justice system, to the interests of business and, above all, to rolling back the rights” that the court, in the 1950s and 1960s, had granted to the poor and the powerless. This is the case the authors make — with clarity, authority and evident passion — identifying the principles at stake and the costs, as they see it, of the Burger retrenchment. The book provides a powerful corrective to the standard narrative of the Burger court — and should change the way that period is perceived.

If Burger, as chief justice, had a defining project, it was to loosen the Warren court’s constraints on the conduct of the police, the discretion of prosecutors and the use, in trials, of confessions and other evidence obtained illegally. Like many Americans, Burger blamed decisions like Miranda v. Arizona — which required police to read suspects their rights — for crippling law enforcement and contributing to a surge in crime. Burger’s inability to overrule Miranda and other key decisions is central to the story line of “the counterrevolution that wasn’t,” as one book title put it. But that assessment, Graetz and Greenhouse argue, is wrong. The precedents were left standing, but hollowed out — a forest of dead timber. The court “eviscerated” Miranda, carving out exceptions; it gutted the Fourth Amendment’s guarantee against unreasonable searches and seizures, granted police officers wide leeway when they are said to have acted “reasonably” and in “good faith,” and curtailed the rights of prisoners to challenge their convictions on such grounds. In other rulings, the Burger court effectively ended judicial oversight of plea bargaining and sentencing, leaving both in the hands of prosecutors and state legislatures, neither of which are known for restraint. ...