BOOK REVIEWS
The Burger Court and the
Rise of the Judicial Right Linda Greenhouse and Michael J . Graetz ( New York : Simon and Schuster , 468 pp , 2016 )
Reviewed by Ted Lawrence , Esq .
In the introduction to The Burger Court and the Rise of the Judicial Right , Linda Greenhouse and Michael Graetz gamely ( or inauspiciously ) confide :
When we told friends and colleagues that we were writing a book about the Burger Court , the response was almost universally one of surprise and the question was “ Why ?”
Now that the book has been published , it ’ s fair to ask that question again . This isn ’ t because of the subject matter — Warren Burger ’ s time as chief justice , from 1968 to 1986 , should be of great interest to lawyer and layman alike . Nor is it because the authors lack expertise — both Greenhouse , a former supreme court correspondent for the New York Times , and Graetz , a professor at Columbia Law , ought to be surefooted guides to the Court ’ s cases and the era that gave rise to them .
But they aren ’ t . The Burger Court is frustrating and boring .
The problems begin at the outset , as Greenhouse and Graetz describe their reasons for writing the book . First , they claim that the Burger Court has been “ overlooked and under-studied .” Second , they argue that the opinions issued during Burger ’ s tenure were a “ counterrevolution ” that effectively unmade many of the Warren Court ’ s radical precedents , and paved the way for the “ aggressive conservatism of the Rehnquist Court .”
Both claims are wrong . Issues that the Burger Court addressed — affirmative action , campaign finance , and the death penalty being prominent examples — are the subject of heated legal and political debate . And Burger presided over Roe v . Wade — the most controversial Supreme Court case of the past fifty years , and probably the one opinion an average American is able to name from memory . While it may be fair to say that the Burger Court hasn ’ t received much scrutiny as an institution , why should that matter ? Its cases — i . e ., the things about it that do matter — have , if anything , been overanalyzed and over-studied .
Greenhouse and Graetz are on equally shaky ground when they label the Burger Court as “ conservative .” Doing so ignores its record to the contrary . Invalidating state prohibitions on abortion , limiting application of the death penalty , and sanctioning discrimination against whites and men — none of these are conservative actions . Yet they are all things of which the Burger Court approved on its own initiative — without being forced to do so by precedents from its liberal predecessor . If the Burger Court was filled with reactionaries , as Greenhouse and Graetz say it was , what gives ?
Their answer — the Burger Court could have done even more , could have gone even further , by , say , abolishing the death penalty , or requiring that public school funding be equal across all districts — isn ’ t serious . It does nothing to grapple with the reality that the Burger Court did a great deal to advance policies favored by the Left . A better book would have acknowledged this reality , and tried to explain why this group of ostensibly Republican judges made law so at odds with the elected officials who appointed them .
More important , Greenhouse and Graetz ’ s overly political angle is a bad way of approaching history . Supreme Court justices may be political animals , but they have other interests , too .
Besides a few brief paragraphs in an appendix , The Burger Court contains little background on its justices . This is unfortunate , because character sketches and personal anecdotes are what make narrative history sparkle . They are the things readers remember , and take pleasure from . Warren Burger , for instance , worked as a lifeinsurance salesman to pay his way through school . Byron White was both a Rhodes Scholar and professional football player for the Detroit Lions . The Burger Court ’ s omission of these little details from its primary chapters make reading them a slog .
Nor are Greenhouse and Graetz fun company . Their tone is dry , and their humor is snarky and partisan-inflected . So ,
the “ War on Drugs ” and “ Global War on Terrorism ” get scare quotes . The fact that , in the 1970s , “ victims of crime began to play a central role in the criminal process ” is cause for worry , not celebration . ( Pause on that one : have victims ever not played a “ central role in the criminal process ”?) And a bland section on Supreme Court procedure is another opportunity for a political barb :
Per curiam need not mean unanimous . Bush v . Gore . . . was issued as a per curiam opinion over four dissents .
Despite these sour notes , The Burger Court does have some merits . Grouping together all of the cases from Burger ’ s tenure provides context that studies of single decisions lack . And the book does a decent job of explaining the court politics that surrounded the opinion-writing process . But it fails to convince on its broader argument that the Burger Court reoriented the judiciary to the right . The Court ’ s liberal decisions are still with us , and are likely to remain so for some time . ____________________ Ted Lawrence is an associate at Dinse Knapp McAndrew who practices primarily in the area of business transactions . Before his career as a lawyer , he worked as an editor and research assistant . He received his JD , cum laude , from the University of Michigan Law School .
Business and Commercial Litigation
in Federal Courts Edited by Robert Haid
Reviewed by Peter Langrock , Esq .
In 2013 , I reviewed the third edition of “ Business and Commercial Litigation in Federal Courts ” edited by Robert L . Haig . At that time , I indicated that I www . vtbar . org THE VERMONT BAR JOURNAL • FALL 2017 39