THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT

Vol. 26 No. 7 (November 2016) pp. 129-131

THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT, by Michael J. Graetz and Linda Greenhouse. New York: Simon & Schuster, 2016. 468 pp. Cloth $30.00. ISBN 978-1-4767-3250-3.

Reviewed by Calvin TerBeek, Department of Political Science, University of Chicago. Email: cterbeek@uchicago.edu

This is a good book aimed at multiple audiences. On one level it is directed at educated lay readers, it contains thumbnail sketches of the relevant justices, and includes a short primer on “Supreme Court procedure.” But the book also aims to make a novel argument about the Burger Court. Contrary to the conventional wisdom viewing the Burger Court as merely transitional (White 2007) or a “counter-revolution that wasn’t” (Blasi 1983), Graetz and Greenhouse argue that Warren Court precedents “were dramatically diminished in scope and impact” (p. 15) by the time Burger ceded the center seat to William Rehnquist in 1986. The implication is this: much of the work done by the undeniably conservative Rehnquist and Roberts Courts was simply extending decisions made by the Burger Court.

In order to support this claim, the book samples the Burger Court’s major decisions from the death penalty, criminal procedure, racial discrimination, affirmative action, abortion, gender discrimination, religion, speech (with a focus on commercial and corporate speech), to President Nixon’s travails vis-à-vis Watergate. While most of this will be old hat to legal academics and political scientists who study judicial politics, scholars and veteran Court watchers will find the fruits of Graetz and Greenhouse’s archival work rewarding. For example, Justice Powell’s papers show him wrestling with his self-admitted “confederate emotions” (p. 89) in the 1973 school segregation case KEYES V. SCHOOL DISTRICT NO. 1. And we learn of Justice Blackmun’s characterization of a brief penned by Ruth Bader Ginsburg as “mildly offensive and arrogant” (p. 166) while simultaneously admitting Ginsburg had the better of the argument. The book also admirably places the Burger Court’s decisions in the larger political and cultural climate rather than simply consisting of a rote review of opinions, concurrences, and dissents. It is also stocked with interesting, and telling, anecdotes such as Robert Bork’s op-ed response to REGENTS OF CALIFORNIA V. BAKKE (1978) – he accused the justices, among others, of being “hard-core racists of reverse discrimination” (p. 122) – and we are reminded the undue burden test so derided by conservatives was cribbed from Reagan Solicitor General Rex E. Lee’s brief by Justice Sandra O’Connor in AKRON V. AKRON CENTER FOR REPRODUCTIVE HEALTH (1983) (eventually finding its way into the joint opinion in CASEY (1992)). Finally, the book corrects the still too common perception that the “backlash” to ROE V. WADE (1973) was swift and certain (it wasn’t); indeed, here the book is at its best, telling a complex story deftly and drawing on political science, historiography, and Greenhouse’s previous work with Reva Siegel.

But it is not clear the conventional wisdom Graetz and Greenhouse set out to challenge has been toppled. Given Graetz and Greenhouse’s almost exclusive focus on those cases that bolster their argument, there is a concern they have not given enough attention to Burger Court decisions pointing toward a more complex reality. For example, the evidence that quantitatively-oriented political scientists have amassed is supportive of the conventional wisdom of a transitional court. And sometimes we see the authors straining to make their argument. In the portions of the book devoted to commercial and corporate speech, Graetz and Greenhouse contend only Justice Rehnquist presciently saw the perils of extending First Amendment protection to commercial speech – he dissented in the cases recognizing and extending this constitutional rights claim (VIRGINIA PHARMACY (1976) and [*130] CENTRAL HUDSON (1980)). The authors further suggest a straight line from these decisions to the Roberts Court’s current solicitude of business entities’ First Amendment claims. Perhaps, but other scholarship is suggestive of a more complicated story. For example, Batchis (2016) shows how campaign finance laws and their interaction with the First Amendment drew differing reactions from William F. Buckley and Rich Lowry in NATIONAL REVIEW within two months of each other (see also Silverstein 2009). It is also worth noting Rehnquist’s prescience disappeared, at least in part, in the area of corporate speech; he was in the majority of BUCKLEY V. VALEO (1976) – something the authors gloss over – yet he dissented in BELOTTI (1976), a case striking down a Massachusetts criminal statute regarding corporate political speech. The reader is left wanting for an explanation. In addition, specialists in (say) race and law might find problematic the authors’ assertions such as “People were afraid to go for a walk after dark” (pp. 12-13) due to the increase in crime rates in the late 1960s and early 1970s (cf. Weaver 2007). Or those who are well-versed in the recent explosion of historiography on the postwar conservative movement will question the implicit outsized influence Graetz and Greenhouse attribute to the “Powell Memorandum” (a private memo authored by Powell and sent to Chamber of Commerce members in 1971).

Of course, given the multiple audiences, perhaps this is asking too much. And all that said, for Court veterans the pages will turn quickly; the book is well-written and briskly paced. For scholars, Graetz and Greenhouse’s most significant contribution is the food for thought it may supply as an impetus for further scholarship on the Burger Court. Their argument deserves further study and exploration. The book will also be of use to a precocious undergraduate student as an entry into the judicial politics literature. A couple afternoons reading this book over the holidays will be well spent.

REFERENCES:

Batchis, Wayne. 2016. THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH & THE RETURN OF CONSERVATIVE LIBERTARIANISM. Palo Alto: Stanford Law Books.

Blasi, Vincent, ed. 1983. THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN’T. New Haven, CT: Yale University Press.

Silverstein, Gordon. 2009. LAW’S ALLURE: HOW LAW SHAPES, CONSTRAINS, SAVES, AND KILL POLITICS. New York: Cambridge University Press.

Weaver, Vesla M. 2007. “Frontlash: Race and the Development of Punitive Crime Policy,” STUDIES IN AMERICAN POLITICAL DEVELOPMENT 21(Fall): 230-265.

White, G. Edward. 2007 3d ed. THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES. New York: Oxford University Press.


CASE REFERENCES:

AKRON V. AKRON CENTER FOR REPRODUCTIVE HEALTH 462 U.S. 416 (1981)

BUCKLEY V. VALEO, 424 U.S. 1 (1976)

CENTRAL HUDSON GAS & ELECTRIC CORP. V. PUBLIC SERVICES COMMISSION, 447 U.S. 557 (1980)

CITIZENS UNITED V. FEC, 558 U.S. 310 (2010)

FIRST NATIONAL BANK OF BOSTON V. BELOTTI, 435 U.S. 765 (1978)

KEYES V. SCHOOL DISTRICT NO. 1, 413 U.S. 189 (1973)
[*131]

PLANNED PARENTHOOD V. CASEY, 505 U.S. 833 (1992)

REGENTS OF THE UNIV. OF CALIFORNIA V. BAKKE, 438 U.S. 265 (1978)

ROE V. WADE, 410 U.S. 113 (1973)

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)

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© Copyright 2016 by author, Calvin TerBeek.