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How the Supreme Court took its first big steps to the right

The Burger Court and the Rise of the Judicial Right

By Michael J. Graetz and Linda Greenhouse

Simon & Schuster

468 pages, $30

By Michael D. Langan

We’ve seen the TV commercial that begins, “I’m not a lawyer, but …”

This ad is a clever piece of rubbish. It’s meant to demean lawyers and, indirectly, give the impression that the actor reading his lines on TV knows as much as a lawyer, but without you paying a legal bill for listening.

Sometimes lawyers deserve criticism. But be cautioned about believing many TV adverts, which have little logic and therefore less value to them. Believing these ads will run into money – yours – if you believe them.

So what’s a citizen to do when it comes to the understanding the American legal system?

You could do worse than reading “The Burger Court And The Rise Of The Judicial Right” by Michael J. Graetz and Linda Greenhouse. It costs 30 bucks, a pittance in legal circles these days when big shot lawyers get paid thousands of dollars for an hour’s work.

“Judicial Right”; what does that phrase  mean? Generally it’s supposed to refers to “principled decision-making.” Of course, any definition like this can also lead to “principled arguing.”

Graetz is professor of law at Columbia University and Professor of Law Emeritus at Yale, where he has taught for more than 30 years. Greenhouse has been a Pulitzer-winning writer concentrating on the Supreme Court for almost 30 years with the New York Times.

You might think that an examination of The Burger Court (1969–1986) would be a snore. But I don’t see it that way. (Even if the book puts you to sleep, 30 bucks is less than most sleep aids cost.)

So why read this book? Begin with the premise that any seated Supreme Court is a legal body susceptible to change, major and minor, over time, largely through associates’ conversations and written material passed among them. They are not necessarily secret, but unseen from day-to-day by the public.

Graetz and Greenhouse used primary sources to open our eyes in reconstructing the Burger Court from the conventional premise that it marked time between the aggressively liberal Warren Court and the similarly aggressive conservativism of the Rehnquist Court, as the Library Journal put it.

Particularly helpful were the papers of Justice Lewis Powell and Harry Blackmun. Justice Potter Steward kept less material, as did William Rehnquist. Burger’s papers at the College of William and Mary won’t be available until 2026. To a degree, not having Burger’s papers weakens the book, but scholars of the court do their best with what they’ve got.

What did Graetz and Greenhouse conclude?

They make the case that the Burger Court moved American law to the right, establishing the legal foundation for the conservative courts that followed. How so? They mark out five areas: Crime, Race, Social Transformation, Business, and the Presidency, where the court modified the law with cases in those categories.

These decisions “on the death penalty, affirmative action, abortion, campaign financing, corporate free speech, and presidential power shaped the law on issues that persist as sources of legal, political and social conflict,” according to our writers.

These judgements and their clear-eyed exposition by Graetz and Greenhouse are valuable in that they add history, context and texture to this year’s Supreme Court decisions and the search for a new justice, whose appointment they say, “could reorient the Court.”

One example of how earlier decisions resonate into the present is evidenced the New York Times’ reprise of Muhammad Ali’s life in a Special Section of June 11, 2016.

In that section is a reprint of a Dec. 17, 1979, column by sportswriter Dave Anderson. It is headlined, “How a Clerk Spared Ali From Prison.” Anderson’s writing shows how a Burger Court justice’s clerk convinced his boss of a draft objector’s sincerity. This work by a clerk of Justice Harlan changed a proposed 5–3 vote asserting that Ali was not a conscientious objector to an 8–0 vote clearing Ali of the charge.

How so specifically? Justice Harlan’s clerk convinced the justice and others that Ali’s opposition was to all wars. The reversal was buttressed by the fact that the Justice Department had earlier misrepresented the Black Muslim doctrine. (Ali himself claimed that he would participate in a “holy war” if Muslims were involved.)

Thus, the final decision was an 8–0 clearance of Ali.

Justice Marshall abstained in the case because he had been the Justice Department’s Solicitor General where Ali’s case had originated.

What’s ahead? Look for the present Supreme Court to deal with one issue that has its roots in the Burger Court. Fisher v. University of Texas is related to diversity in university admissions. It is possible that this case could unravel the Bakke decision that made acceptable the constitutional rational for taking account of race, as our authors put it.

More than this, if there is a turnover of the court in the near future, our authors tell us that we can look to issues involving the deregulatory power of commercial speech, religion and the separation of church and state, and, of course, abortion.

In all, 13 justices served on the Burger Court at different times. Twelve were men: Chief Justice Warren Burger, Hugo L. Black, William O. Douglas, John Marshall Harland II, William J. Brennan, Jr., Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackmun, Lewis F. Powell Jr., William H. Rehnquist and John Paul Stevens Jr. The one woman was Sandra Day O’Connor.

So there’s hope for understanding the law by us nonlawyers.

In summary, the flyleaf of this book (not always an accurate assessment in the book world, but in this case spot-on), sets Graetz’s and Greenhouse’s theme.

The book explores “the most important Supreme Court cases of that era ... In the midst of this year’s Supreme Court decisions and the search for a new justice, whose appointment could reorient the Court, ‘The Burger Court And The Rise Of The Judicial Right’ is an essential examination of one of the most transformative and misunderstood Supreme Courts in modern history, a Court that went far toward defining the constitutional landscape today.”

Buy this book.

Michael D. Langan is a frequent book reviewer for The Buffalo News. He worked in senior positions of the federal government for 20 years in Washington, D.C.