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The Burger Court and the Rise of the Judicial Right
A revelatory look at the Warren Burger Supreme Court finds that it was not moderate or transitional, but conservative—and it shaped today’s constitutional landscape. It is an “important book…a powerful corrective to the standard narrative of the Burger Court” (The New York Times Book Review).When Richard Nixon campaigned for the presidency in 1968 he promised to change the Supreme Court. With four appointments to the court, including Warren E. Burger as the chief justice, he did just that. In 1969, the Burger Court succeeded the famously liberal Warren Court, which had significantly expanded civil liberties and was despised by conservatives across the country. The Burger Court is often described as a “transitional” court between the Warren Court and the Rehnquist and Roberts Courts, a court where little of importance happened. But as this “landmark new book” (The Christian Science Monitor) shows, the Burger Court veered well to the right in such areas as criminal law, race, and corporate power. Authors Graetz and Greenhouse excavate the roots of the most significant Burger Court decisions and in “elegant, illuminating arguments” (The Washington Post) show how their legacy affects us today. “Timely and engaging” (Richmond Times-Dispatch), The Burger Court and the Rise of the Judicial Right draws on the personal papers of the justices as well as other archives to provide “the best kind of legal cogent, relevant, and timely” (Publishers Weekly).
480 pages, Kindle Edition
Published June 7, 2016
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About the author
Michael J. Graetz
29 books17 followersMichael J. Graetz is Isidor and Seville Sulzbacher Professor of Law and Columbia Alumni Professor of Tax Law at Columbia University and Professor of Law, Emeritus, at Yale Law School.
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Displaying 1 - 29 of 29 reviews
June 1, 2016
First and foremost, a large thank you to NetGalley, Michael J. Graetz, Linda Greenhouse, and Simon & Schuster for providing me with a copy of this book, which allows me to provide you with this review.
In a poignant analysis to dispel some misnomers, Graetz and Greenhouse offer strong arguments that the Burger Court was not as timid as some would believe. Sandwiched between the strongly liberal Warren Court and ideologically dichotomous Rehnquist Court, Burger's time as head of the US Supreme Court sought to rein in some of the Court's decisions, seen as interpreting constitutional rights too freely, and beginning the counter-revolution that many felt he failed to provide. With the US Constitution and Supreme Court decisions as their primary judicial documents, the Burger Court waded through many cases, applying legal arguments to shape America into the latter portion of the 20th century. The authors focus on key areas from the Warren Court and exemplify how the Burger Court reinterpreted similar cases, setting aside precedent, where applicable. However, the authors do not sell their argument without offering exceptions to the rule, for it was under Burger that Roe v. Wade came to pass, as well as some case that exemplify more substantial freedoms under gay rights. These, and cases related to executive power (Nixon's Watergate tapes and the Pentagon Papers leaks, specifically) show that the Court was still straddling both sides of the ideological fence. Perhaps this helps to show where doubters of the Burger Court develop their fodder.
The book reads fairly fluidly, at least as much as it can when handling judicial decisions and their analyses. Using substantial case summaries of some significant cases, the authors offer the reader a better insight into the facts of key cases to allow a better understanding of where things stood upon reception of appeals from the lower courts. From there, the book includes the thoughts of the justices before oral arguments or in private conference soon after hearing them, as well as their published decisions that make their way in the public record. The tug-of-war found at the centre of the majority, dissent, and concurrent decisions shapes the struggle the justices faced, as well as the shift away from the 'left' and towards a more ensconced 'right'. This is an essential aspect of the book, as it adds a dimension to the narrative that fleshes out some of the more curious aspects of judicial decisions, including banter between justices on matters as serious as abortion, gay rights, racial equality, and campaign finance.
The book is less a primer for understanding the justices of the Burger Court, though the narrative does lend some insight in that regard, and more along the lines of how key decisions made in the Warren Court reemerged in the Burger era for reinterpretation and an ideological reset. While not a piece of fiction, the characterization of the justices cannot be lost, be it Marshall, Stewart, or even O'Connor. However, as though he lurked in the shadows, waiting to pounce, Justice Rehnquist played that ominous role, choosing to push a conservative agenda as he waited and was eventually positioned and the new Chief Justice, completing the ideological transition to a rightist Court. The attentive reader will understand that this revolutionary move may have seemed slow, as some justices from the Warren Court remained, holding onto their opinions from past decisions. That said, there is no doubt that the Burger Court effectively showed a right-leaning tendency, shaking off the shackles of the place Earl Warren and his justices sought to take America. A must-read by anyone with a general curiosity about the US Supreme Court and the analysis it made in cases spanning many subjects.
Kudos, Mr. Graetz and Madam Greenhouse for this wonderful book that examines many important areas of legal analysis in a time when America was coming to terms with a changing society and level of acceptance.
Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
In a poignant analysis to dispel some misnomers, Graetz and Greenhouse offer strong arguments that the Burger Court was not as timid as some would believe. Sandwiched between the strongly liberal Warren Court and ideologically dichotomous Rehnquist Court, Burger's time as head of the US Supreme Court sought to rein in some of the Court's decisions, seen as interpreting constitutional rights too freely, and beginning the counter-revolution that many felt he failed to provide. With the US Constitution and Supreme Court decisions as their primary judicial documents, the Burger Court waded through many cases, applying legal arguments to shape America into the latter portion of the 20th century. The authors focus on key areas from the Warren Court and exemplify how the Burger Court reinterpreted similar cases, setting aside precedent, where applicable. However, the authors do not sell their argument without offering exceptions to the rule, for it was under Burger that Roe v. Wade came to pass, as well as some case that exemplify more substantial freedoms under gay rights. These, and cases related to executive power (Nixon's Watergate tapes and the Pentagon Papers leaks, specifically) show that the Court was still straddling both sides of the ideological fence. Perhaps this helps to show where doubters of the Burger Court develop their fodder.
The book reads fairly fluidly, at least as much as it can when handling judicial decisions and their analyses. Using substantial case summaries of some significant cases, the authors offer the reader a better insight into the facts of key cases to allow a better understanding of where things stood upon reception of appeals from the lower courts. From there, the book includes the thoughts of the justices before oral arguments or in private conference soon after hearing them, as well as their published decisions that make their way in the public record. The tug-of-war found at the centre of the majority, dissent, and concurrent decisions shapes the struggle the justices faced, as well as the shift away from the 'left' and towards a more ensconced 'right'. This is an essential aspect of the book, as it adds a dimension to the narrative that fleshes out some of the more curious aspects of judicial decisions, including banter between justices on matters as serious as abortion, gay rights, racial equality, and campaign finance.
The book is less a primer for understanding the justices of the Burger Court, though the narrative does lend some insight in that regard, and more along the lines of how key decisions made in the Warren Court reemerged in the Burger era for reinterpretation and an ideological reset. While not a piece of fiction, the characterization of the justices cannot be lost, be it Marshall, Stewart, or even O'Connor. However, as though he lurked in the shadows, waiting to pounce, Justice Rehnquist played that ominous role, choosing to push a conservative agenda as he waited and was eventually positioned and the new Chief Justice, completing the ideological transition to a rightist Court. The attentive reader will understand that this revolutionary move may have seemed slow, as some justices from the Warren Court remained, holding onto their opinions from past decisions. That said, there is no doubt that the Burger Court effectively showed a right-leaning tendency, shaking off the shackles of the place Earl Warren and his justices sought to take America. A must-read by anyone with a general curiosity about the US Supreme Court and the analysis it made in cases spanning many subjects.
Kudos, Mr. Graetz and Madam Greenhouse for this wonderful book that examines many important areas of legal analysis in a time when America was coming to terms with a changing society and level of acceptance.
Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
July 3, 2016
Michael Graetz and Linda Greenhouse’s main theme of this book is to challenge the popular notion that the Burger Court was a “nothing much happened” Court. They claim that it was President Richard Nixon’s four appointments to the Supreme Court that changed the court to the right. Nixon appointed Warren Burger as the Chief Justice and also appointed the following to the Court: William Rehnquist, Lewis Powell, and Harry Blackmum.
The authors set out to show how the Burger Court reached its most lasting decisions, laying a legal foundation for the conservative Rehnquist and Roberts’ Courts. In the 1968 presidential campaign Nixon promised to appoint “properly conservative” justices to the Supreme Court.
The Burger Court was tough on crime and reauthorized the death penalty in 1976. The Burger Court abandoned the Warren Court’s quest for equal criminal justice, instead it believes in protecting the public and punishing the guilty. The Burger Court slowed the enforcement or interfered with school desegregation. In 1978 they ruled racial quotes were unconstitutional in school admissions. They gave commercial and corporations the right to 1st amendment protection of free speech. They also allowed corporations the right to spend money in politics which was the foundation of the Citizens United decision of the Roberts’ Court. The authors provide many more examples to verify their hypothesis. I found this book most interesting. Needless to say the book was well written and meticulously research.
Graetz is a Professor of Law at Columbia Law School and author of seven books. Greenhouse is a Pulitzer Prize winning journalist and attorney who covers the Supreme Court for the New York Times. She has written four books about the Supreme Court. I read this as an e-book on the Kindle app for my iPad. It has 480 pages.
The authors set out to show how the Burger Court reached its most lasting decisions, laying a legal foundation for the conservative Rehnquist and Roberts’ Courts. In the 1968 presidential campaign Nixon promised to appoint “properly conservative” justices to the Supreme Court.
The Burger Court was tough on crime and reauthorized the death penalty in 1976. The Burger Court abandoned the Warren Court’s quest for equal criminal justice, instead it believes in protecting the public and punishing the guilty. The Burger Court slowed the enforcement or interfered with school desegregation. In 1978 they ruled racial quotes were unconstitutional in school admissions. They gave commercial and corporations the right to 1st amendment protection of free speech. They also allowed corporations the right to spend money in politics which was the foundation of the Citizens United decision of the Roberts’ Court. The authors provide many more examples to verify their hypothesis. I found this book most interesting. Needless to say the book was well written and meticulously research.
Graetz is a Professor of Law at Columbia Law School and author of seven books. Greenhouse is a Pulitzer Prize winning journalist and attorney who covers the Supreme Court for the New York Times. She has written four books about the Supreme Court. I read this as an e-book on the Kindle app for my iPad. It has 480 pages.
September 11, 2016
This is a book about a notable, thought decidedly easy to overlook period in the history of the modern judiciary: the period of Warren Burger, Chief Justice from 1969 to 1986. Burger was one of four Supreme Court justices picked by Richard Nixon. Coming right after Earl Warren’s liberal “rights revolution” court, the Burger one was seen as a break on that period. They made few banner cases like the old Warren one. Indeed, seemingly almost all of the Warren decisions still stood by the time Burger left. But the main theme of the Burger years was rolling back the Warren years. The old decisions were whittled down and hollowed out, allowed to stand in principle if not so much in practice. This could serve as a foundation for the future (and increasingly conservative) Supreme Court decisions under Chief Justices Rehnquist and Roberts.
There are five main sections to this book: crime, race, social transformation, business, and the presidency. In the first section, the authors note that crime went up and so did the prison population. The Burger Court actually ended the death penalty in Furman v. Georgia, but that didn’t last long, as states moved to adjust to the guidelines put down by the Furman decision. As it happens, no one had been executed in the US for six years prior to Furhman, but once it went down, they came roaring back. Several of the justices who signed off on restoring the death penalty (including Blackmun, Powell, and Stevens) later came to regard that as a mistake.
Miranda was also rolled back. The initial decision was intended to standardize police procedures. But exceptions were now made. A non-Mirandized confession can be used if the accused speaks in his own defense. There is a public safety exception to Miranda as well. In other news, the Fourth Amendment’s Exclusionary Rule was eviscerated for the Drug War. Mapp v. Ohio was limited considerably. Gideon v. Wainwright’s call for a court-appointed lawyer was muted.
Rights issues were pushed increasingly to state courts, especially when it came to 4th, 5th, and 6th Amendment cases. There was a desire to not be seen as soft on crime. Plea bargains were unshackled and allowed to flourish. Prosecutors were given more control as there was no real judicial oversight of reasonableness of sentences, and a lack of oversight of prosecutorial conduct. The writ of habeus corpus shrunk. In some cases it could be considered waived.
The Court largely abandoned integration as a main goal. The idea was to integrate, but place less emphasis on it. This can be seen in the busing cases. The Court decided that the courts would be closed to arguments on socioeconomic disadvantages in education. Education was not considered a right. Cities and schools became more segregated by race and class.
The Court saw several cases on affirmative action. In the Bakke case, the court was split 4-4 with Blackmun absent, but he sided with the liberals. Powell, who had qualified support for it, wrote the decision.
Roe v. Wade wasn’t intended to be iconic or controversial. The Court mostly listened to legal and medical professionals, not activists (either pro-choice or pro-life). So the Court had it’s 7-2 ruling, and only gradually did a big backlash emerge. The GOP wasn’t officially pro-life until 1980.
The Court fumbled around with gender issues. They argued that a law against pregnant teachers wasn’t about gender at all, despite the obvious fact that only one gender can get pregnant. Ruth Bader Ginsberg made her mark arguing some of these cases before the Court. The Court was reluctant to confront – or even acknowledge – gender discrimination. Eventually, Congress outlawed discrimination against pregnant women. The Court finally came to a new review of sexual discrimination.
In the arts, there was more sex, and that ran into obscenity laws. The Warren Court was pro-personal freedom, but Nixon saw this as the road to moral bankruptcy. The Court by and large ignored gay rights.
With regard to religion, the Warren Court stressed separation, but the Burger Court stressed accommodation. The Court came up with the “Lemon test” to determine if there was religious discrimination. The three parts of the Lemon test were: purpose, effect, and entanglement. The Lemon decision has never been officially overturned, but it’s been so completely undercut and ignored over the decades that it may as well have been. Lemon has shifted from being rules to being a series of options.
Powell was extremely pro-business and his ideas have since become today’s legal reality. The Burger Court in general was pro-business. It legalized drug ads, declaring in 1976 that commercial speech was part of free speech. This hadn’t been considered the case before. Regulation of commercial speech had been taken for granted as constitutional until this point. Rehnquist was the consistent dissenter here, in part because he never was that beholden to the First Amendment anyway. Rehnquist did note that giving corporations these rights served to send the legal community back to the days of Lochner. The Court ruled eventually that only literal corruption mattered in these cases – screw ancillary stuff. This was the foundation upon which Citizens United sprang from. The Court was willing to regulation business under Warren in part because the economy was strong, but in the stag-flation of the 1970s, there was greater desire to defer to business to get things moving again. In all, the Court gave corporations unprecedented leeway to convince people to support their commercial interests and political agenda.
In workplace equality matters, the courts kept affirmative action. The Court did decide that seniority trumped equal opportunity in the workplace, as it called for an increasingly wide range of deferment to seniority. Unions didn’t fare well, as even the Burger Court’s two great liberals – Brennan and Marshall – were ambivalent to unions. Some unions were anti-integration, for one reason. Nixon’s “Philadelphia Plan” was seen as an attack on unions. Over time, the Court decided that discrimination was only legally actionable when it was over intent. The courts sided with business over unions, such as ruling that a bankruptcy could void a CBA.
With the government, the Court largely gave immunity to prosecution to acts done by the president’s administration. Absolute immunity was rare unless for the president, judges, and prosecutors. Citizens can sue an elected official for damages, but it’s hard to do so. With Watergate, they voted against Nixon, but in a way that actually strengthened the presidency by acknowledging executive privilege and sparing a president from civil damages.
Lewis Powell once said there was no Burger counter-revolution as the Warren decisions stood. He said the Burger Court took no political agenda – but c’mon – they did. They supported giving more control to local/state authorities, making the criminal justice system stronger, preserving elite institutions, supporting business interests, and rolling back the Warren rights revolution. There was clear overlap between Burger and Reagan – rights limited, support for business, more about state government. The big difference was abortion.
There are five main sections to this book: crime, race, social transformation, business, and the presidency. In the first section, the authors note that crime went up and so did the prison population. The Burger Court actually ended the death penalty in Furman v. Georgia, but that didn’t last long, as states moved to adjust to the guidelines put down by the Furman decision. As it happens, no one had been executed in the US for six years prior to Furhman, but once it went down, they came roaring back. Several of the justices who signed off on restoring the death penalty (including Blackmun, Powell, and Stevens) later came to regard that as a mistake.
Miranda was also rolled back. The initial decision was intended to standardize police procedures. But exceptions were now made. A non-Mirandized confession can be used if the accused speaks in his own defense. There is a public safety exception to Miranda as well. In other news, the Fourth Amendment’s Exclusionary Rule was eviscerated for the Drug War. Mapp v. Ohio was limited considerably. Gideon v. Wainwright’s call for a court-appointed lawyer was muted.
Rights issues were pushed increasingly to state courts, especially when it came to 4th, 5th, and 6th Amendment cases. There was a desire to not be seen as soft on crime. Plea bargains were unshackled and allowed to flourish. Prosecutors were given more control as there was no real judicial oversight of reasonableness of sentences, and a lack of oversight of prosecutorial conduct. The writ of habeus corpus shrunk. In some cases it could be considered waived.
The Court largely abandoned integration as a main goal. The idea was to integrate, but place less emphasis on it. This can be seen in the busing cases. The Court decided that the courts would be closed to arguments on socioeconomic disadvantages in education. Education was not considered a right. Cities and schools became more segregated by race and class.
The Court saw several cases on affirmative action. In the Bakke case, the court was split 4-4 with Blackmun absent, but he sided with the liberals. Powell, who had qualified support for it, wrote the decision.
Roe v. Wade wasn’t intended to be iconic or controversial. The Court mostly listened to legal and medical professionals, not activists (either pro-choice or pro-life). So the Court had it’s 7-2 ruling, and only gradually did a big backlash emerge. The GOP wasn’t officially pro-life until 1980.
The Court fumbled around with gender issues. They argued that a law against pregnant teachers wasn’t about gender at all, despite the obvious fact that only one gender can get pregnant. Ruth Bader Ginsberg made her mark arguing some of these cases before the Court. The Court was reluctant to confront – or even acknowledge – gender discrimination. Eventually, Congress outlawed discrimination against pregnant women. The Court finally came to a new review of sexual discrimination.
In the arts, there was more sex, and that ran into obscenity laws. The Warren Court was pro-personal freedom, but Nixon saw this as the road to moral bankruptcy. The Court by and large ignored gay rights.
With regard to religion, the Warren Court stressed separation, but the Burger Court stressed accommodation. The Court came up with the “Lemon test” to determine if there was religious discrimination. The three parts of the Lemon test were: purpose, effect, and entanglement. The Lemon decision has never been officially overturned, but it’s been so completely undercut and ignored over the decades that it may as well have been. Lemon has shifted from being rules to being a series of options.
Powell was extremely pro-business and his ideas have since become today’s legal reality. The Burger Court in general was pro-business. It legalized drug ads, declaring in 1976 that commercial speech was part of free speech. This hadn’t been considered the case before. Regulation of commercial speech had been taken for granted as constitutional until this point. Rehnquist was the consistent dissenter here, in part because he never was that beholden to the First Amendment anyway. Rehnquist did note that giving corporations these rights served to send the legal community back to the days of Lochner. The Court ruled eventually that only literal corruption mattered in these cases – screw ancillary stuff. This was the foundation upon which Citizens United sprang from. The Court was willing to regulation business under Warren in part because the economy was strong, but in the stag-flation of the 1970s, there was greater desire to defer to business to get things moving again. In all, the Court gave corporations unprecedented leeway to convince people to support their commercial interests and political agenda.
In workplace equality matters, the courts kept affirmative action. The Court did decide that seniority trumped equal opportunity in the workplace, as it called for an increasingly wide range of deferment to seniority. Unions didn’t fare well, as even the Burger Court’s two great liberals – Brennan and Marshall – were ambivalent to unions. Some unions were anti-integration, for one reason. Nixon’s “Philadelphia Plan” was seen as an attack on unions. Over time, the Court decided that discrimination was only legally actionable when it was over intent. The courts sided with business over unions, such as ruling that a bankruptcy could void a CBA.
With the government, the Court largely gave immunity to prosecution to acts done by the president’s administration. Absolute immunity was rare unless for the president, judges, and prosecutors. Citizens can sue an elected official for damages, but it’s hard to do so. With Watergate, they voted against Nixon, but in a way that actually strengthened the presidency by acknowledging executive privilege and sparing a president from civil damages.
Lewis Powell once said there was no Burger counter-revolution as the Warren decisions stood. He said the Burger Court took no political agenda – but c’mon – they did. They supported giving more control to local/state authorities, making the criminal justice system stronger, preserving elite institutions, supporting business interests, and rolling back the Warren rights revolution. There was clear overlap between Burger and Reagan – rights limited, support for business, more about state government. The big difference was abortion.
January 6, 2026
Read as part of my ongoing shelf audit. Verdict (hah): Interesting and well-constructed but not something I will revisit in the future.
I picked this book up based on a Fresh Air interview around the time it came out; it sounded interesting and consequential, and it definitely is both of those things. However, I realized quickly that I am not the intended target audience: I'm not a lawyer, law student, or scholar of law or the Court. This made the writing style and some terminology a little jarring/hard to follow, and while I think I got the gist of each chapter, I know there are details that went over my head. It was a challenging read and a good brain exercise, and I spent a lot of time trying to recap arguments aloud to cement my understanding.
As a non-specialist, I think my most important takeaway from this book is that law and jurisprudence is much, much more complicated than it often looks from the outside. Details like which justice writes the majority opinion can be pivotal in establishing precedent, and I did feel that the authors' argument that the Burger Court undercut many Warren Court decisions in a way that has led to our current political situation was compellingly presented. Their point is that decisions don't need to be fully overturned to be refined and pared down until they no longer serve the same purpose, and as a layperson it's chilling to realize how much this happens in ways most of us never even notice.
It's also a useful reminder that the Supreme Court has never been objective and nonpartisan, and that justices' personal beliefs and biases will always creep in to a greater or lesser degree; I was especially frustrated between the juxtaposition in the 'Business' chapters, between the Burger Court granting increased freedoms for commercial/corporate speech but also ruling against union members picketing stores or pushing for boycotts. So... advertising and campaign spending are protected free speech, but literal verbal speech in the wrong physical location isn't? Make it make sense.
A note on the writing style: this must be a legal writing thing but it would have been MUCH more intelligible if the use of commas and dependent clauses had been reduced by at least a third. Take this sentence, for example:
I love a good comma but six in a single sentence is too many. Rearrange your sentence structure PLEASE. Sentences like this had me re-reading paragraphs two or three times to make sure I could organize the information in my head; it was like trying to parse something translated word-by-word from a language with a completely different word order.
Overall, this isn't a book I'd recommend as a rule because it's not the most approachable text, but I think it accomplished its goals well and is worth the read if you're already interested in the subject.
I picked this book up based on a Fresh Air interview around the time it came out; it sounded interesting and consequential, and it definitely is both of those things. However, I realized quickly that I am not the intended target audience: I'm not a lawyer, law student, or scholar of law or the Court. This made the writing style and some terminology a little jarring/hard to follow, and while I think I got the gist of each chapter, I know there are details that went over my head. It was a challenging read and a good brain exercise, and I spent a lot of time trying to recap arguments aloud to cement my understanding.
As a non-specialist, I think my most important takeaway from this book is that law and jurisprudence is much, much more complicated than it often looks from the outside. Details like which justice writes the majority opinion can be pivotal in establishing precedent, and I did feel that the authors' argument that the Burger Court undercut many Warren Court decisions in a way that has led to our current political situation was compellingly presented. Their point is that decisions don't need to be fully overturned to be refined and pared down until they no longer serve the same purpose, and as a layperson it's chilling to realize how much this happens in ways most of us never even notice.
It's also a useful reminder that the Supreme Court has never been objective and nonpartisan, and that justices' personal beliefs and biases will always creep in to a greater or lesser degree; I was especially frustrated between the juxtaposition in the 'Business' chapters, between the Burger Court granting increased freedoms for commercial/corporate speech but also ruling against union members picketing stores or pushing for boycotts. So... advertising and campaign spending are protected free speech, but literal verbal speech in the wrong physical location isn't? Make it make sense.
A note on the writing style: this must be a legal writing thing but it would have been MUCH more intelligible if the use of commas and dependent clauses had been reduced by at least a third. Take this sentence, for example:
At oral argument, David Kendall, who was representing Coker, detailed the brutality of this rape, which had been committed after Coker, who was serving a life sentence, had escaped from prison."
I love a good comma but six in a single sentence is too many. Rearrange your sentence structure PLEASE. Sentences like this had me re-reading paragraphs two or three times to make sure I could organize the information in my head; it was like trying to parse something translated word-by-word from a language with a completely different word order.
Overall, this isn't a book I'd recommend as a rule because it's not the most approachable text, but I think it accomplished its goals well and is worth the read if you're already interested in the subject.
July 28, 2017
Great book. In this relatively easy read, Graetz and Greenhouse challenge the assumption that rights once earned are rights forever retained. The authors provide a unique perspective on the Burger Court's decisions regarding criminal law, desegregation, affirmative action, gender equality, LGBT rights, and the First Amendment (particularly as it relates to the relationship between corporate money and politics).
August 28, 2022
As authors Michael Graetz and Linda Greenhouse posit, the Burger Court is frequently regarded as a seventeen-year period, 1969-1986, during which nothing much happened. Highlighting landmark decisions over a series of significant issues, Graetz and Greenhouse make their case for the contrary. Devoting chapters to crime, including the death penalty, race, social transformation, business and the presidency, they examine shifts in Supreme Court jurisprudence.
The Burger Court was one in transition as the liberality of the Warren Court receded in anticipation of the conservativism of the Rehnquist and Roberts Courts. Consisting of only nine justices at a time, the spotlight focuses on personalities. Though all thirteen justices played their roles, a few stand out. Chief Justice Warren Burger sometimes went with the flow to control assignment of the decision authorship, a prerogative of the Chief Justice when he is in the majority. William Brennan was the liberal voice striving to maintain the Warren Court’s orientation. John Paul Stevens became a surprise liberal while William Rehnquist, Antonin Scalia and Sandra Day O’Connor were harbingers of a rising conservative wave.
Although, as a lawyer, I was aware of general trends, but learned much from this tome about specific cases and individual justices. The section on “Roe vs. Wade” lays out the political and social milieu in which it arose. Despite its polarizing effect during its fifty-year life, in 1972 it was deemed not to be a case of surpassing importance and it took years for strong opposition to jell. The analysis of the status of abortion in the years leading up to the decision is a worthwhile read. Sandra Day O’Connor was the only Warren Court, and most recent justice, to bring an elective political background to the court. The justice I found most interesting and surprisingly influential is Lewis Powell, albeit for action while in private practice before joining the Court. Though little remembered today, his memorandum to the U. S. Chamber of Commerce identified challenges to business and the free enterprise system and advanced a list of proposals including aggressive actions by business in secondary education television and other media, legislatures and the courts. Business’ response to Powell’s memorandum has played a major in role social, political and legal spheres that had previously been dominated by “disquieting voices joining the chorus of criticism.”
“The Burger Court” will be of most interest to followers of legal developments and does require some work on the part of readers. For those seeking an understanding of the road that the Supreme Court has followed to its current position in American society it is worth the effort.
The Burger Court was one in transition as the liberality of the Warren Court receded in anticipation of the conservativism of the Rehnquist and Roberts Courts. Consisting of only nine justices at a time, the spotlight focuses on personalities. Though all thirteen justices played their roles, a few stand out. Chief Justice Warren Burger sometimes went with the flow to control assignment of the decision authorship, a prerogative of the Chief Justice when he is in the majority. William Brennan was the liberal voice striving to maintain the Warren Court’s orientation. John Paul Stevens became a surprise liberal while William Rehnquist, Antonin Scalia and Sandra Day O’Connor were harbingers of a rising conservative wave.
Although, as a lawyer, I was aware of general trends, but learned much from this tome about specific cases and individual justices. The section on “Roe vs. Wade” lays out the political and social milieu in which it arose. Despite its polarizing effect during its fifty-year life, in 1972 it was deemed not to be a case of surpassing importance and it took years for strong opposition to jell. The analysis of the status of abortion in the years leading up to the decision is a worthwhile read. Sandra Day O’Connor was the only Warren Court, and most recent justice, to bring an elective political background to the court. The justice I found most interesting and surprisingly influential is Lewis Powell, albeit for action while in private practice before joining the Court. Though little remembered today, his memorandum to the U. S. Chamber of Commerce identified challenges to business and the free enterprise system and advanced a list of proposals including aggressive actions by business in secondary education television and other media, legislatures and the courts. Business’ response to Powell’s memorandum has played a major in role social, political and legal spheres that had previously been dominated by “disquieting voices joining the chorus of criticism.”
“The Burger Court” will be of most interest to followers of legal developments and does require some work on the part of readers. For those seeking an understanding of the road that the Supreme Court has followed to its current position in American society it is worth the effort.
October 21, 2017
This book examines the decisions and impacts of the Supreme Court under the guidance of Chief Justice Warren Burger, who served in that capacity from 1969 through 1986. The substitle hints at the thesis of the book, and the authors do a good job of tracing how many of the Burger court decisions, while not directly overturning much of the precedent from the Warren Court (think Brown v. Board of Education, Miranda v. Arizona, the various extensions of civil rights protections under the Fourteenth Amendment), did much to carve and dice those decisions to be less impactful.
Much of the court's decisions in response to the Warren court's protections for criminal defendants can be seen today as the foundation for the criminal justice state in which we live, in many respects. And the "fear" that drove many of those decisions are still very prevalent in our culture and politics today.
Ironically, the Burger's Court must famous decision is likely Roe v. Wade, decided in 1973, and was not all that controversial at the time. As the book notes, when Justice Stevens was going through his confirmation process two years after the Roe decision, in 1975, he did not receive a single question about Roe v. Wade or abortion. The culture movement on the right behind overturning that decision developed in later years, and obviously has dominated so much of the discussion about the Supreme Court for the last few decades.
The book is an illuminating read. It really does show how the Warren court decisions that we have all heard of have lesser impact than what is culturally imagined to be so as a result of the Burger court's decisions. Worthy read for anyone interested in Supreme Court history, legal history, and how various inequalities in education, society, and criminal justice became so ubiquitous despite those famous Warren court decisions.
Much of the court's decisions in response to the Warren court's protections for criminal defendants can be seen today as the foundation for the criminal justice state in which we live, in many respects. And the "fear" that drove many of those decisions are still very prevalent in our culture and politics today.
Ironically, the Burger's Court must famous decision is likely Roe v. Wade, decided in 1973, and was not all that controversial at the time. As the book notes, when Justice Stevens was going through his confirmation process two years after the Roe decision, in 1975, he did not receive a single question about Roe v. Wade or abortion. The culture movement on the right behind overturning that decision developed in later years, and obviously has dominated so much of the discussion about the Supreme Court for the last few decades.
The book is an illuminating read. It really does show how the Warren court decisions that we have all heard of have lesser impact than what is culturally imagined to be so as a result of the Burger court's decisions. Worthy read for anyone interested in Supreme Court history, legal history, and how various inequalities in education, society, and criminal justice became so ubiquitous despite those famous Warren court decisions.
November 11, 2017
Since Richard Nixon appointed Warren Burger Chief Justice in 1969, the Supreme Court has had conservative majority. This book is about Burger's tenure and the impact of the decisions made during that time. The previous Chief Justice, Earl Warren, who was appointed by Eisenhower had led the court to important decisions such as Brown v. the Board of Education which supported equal rights and protected those accused of crimes. Burger's court did not reverse those decisions, but whittled away at the them until they were nearly moribund.
Surprisingly this was the court that decided Roe v. Wade. At the time evangelical protestants had not unified in opposition to abortions, so the decision was considered important, but not particularly controversial.
This is an interesting book about the inner workings of the court. The impact of Lewis Powell's pro-business philosophy had perhaps the greatest impact of all the justices including Burger and Rehnquist who was the next Chief Justice.
Another major character is a civil rights attorney named Ruth Bader Ginsberg, whose forceful arguments led to the Roe and other decisions.
Good book if you want to understand the importance and workings of the Supreme Court.
Surprisingly this was the court that decided Roe v. Wade. At the time evangelical protestants had not unified in opposition to abortions, so the decision was considered important, but not particularly controversial.
This is an interesting book about the inner workings of the court. The impact of Lewis Powell's pro-business philosophy had perhaps the greatest impact of all the justices including Burger and Rehnquist who was the next Chief Justice.
Another major character is a civil rights attorney named Ruth Bader Ginsberg, whose forceful arguments led to the Roe and other decisions.
Good book if you want to understand the importance and workings of the Supreme Court.
November 5, 2019
Warren Burger presided over the Supreme Court from 1969 to 1986. Ancient history for some, but highly relevant given today's trends. Richard Nixon was able to appoint four justices to the court, enabling the conservative Republican agenda on the heels of the liberal Earl Warren years. We are of course seeing a similar swing with the Trump administration.
Rather than provide a chronological accounting of the Burger court's decisions, the authors examine major social and legal issues such as affirmative action, abortion rights, racial inequality, religion and corporate influence. Where relevant, they extend the discussion into the current era to show the long range impact of court decisions.
The final chapter addresses abuse of power by the President, in this case Richard M. Nixon. The parallels with the current presidency are painfully obvious.
Rather than provide a chronological accounting of the Burger court's decisions, the authors examine major social and legal issues such as affirmative action, abortion rights, racial inequality, religion and corporate influence. Where relevant, they extend the discussion into the current era to show the long range impact of court decisions.
The final chapter addresses abuse of power by the President, in this case Richard M. Nixon. The parallels with the current presidency are painfully obvious.
March 22, 2024
2.3. Very boring book—I am not a huge fan of nonfiction. I think the book proved the thesis—the Burger court did make major changes, and although not ruling a lot of the Warren Court’s decisions, weakened them. I thought the most interesting portions where it flowed the best were on women’s issues and Nixon—the rest was very dry. Like making the death penalty boring?? Cmon. I do think the book could have done a better job establishing the relationships between the judges and their ideologies better. But, it made its points clearly. I will say, it was depressing. Reading through the criminal portion especially, I just couldn’t help but think about how effed up our country is, largely due to decisions by this court. It was an informative book, albeit frustrating in hindsight.
May 24, 2019
It reads a bit like a well-written law review article. Detailed but not exhausting descriptions of the major cases of the Burger Court. The authors stayed away from offering a ton of their own analysis and mostly stuck to to the cases and background information. This made it informative but a bit dull. Yet, the authors certainly achieved their goal in arguing that indeed there was a strong ideological shift in the Burger Court. The authors are obviously not fans of this shift and their spite seeps in throughout the book. However, there is much to learn from this era and the book is a great introduction to this period.
October 26, 2017
A little esoteric, but it provides a detailed view of the internal politics and personalties behind the facade of the Supreme Court. The Burger Court was noted for having little impact on America and the law, but the author makes a compelling argument that its decisions set numerous precedents that countered the left swing of the legal pendulum back to the center in the wake of the Warren Court that preceded it.
October 20, 2020
An illuminating history of the Burger Court, created when President Nixon was able to fill four vacancies on the Supreme Court. I'm unconvinced that it can be called a conservative court (Roe v. Wade?) except in its transitional role away from the activist Earl Warren court. I appreciate how the author not only discussed the key decisions of the Burger Court, but also showed how they influenced those Supreme Court decisions that followed.
July 4, 2017
Extremely informative read about the often written off Burger Court, particularly some of its decisions that hollowed out ones made by the Warren court and the future foundation it set for worse cases (i.e.Citizens United).
Although the book is a bit dry, it certainly does not lack for being accessible to readers.
3.5/5 stars.
Although the book is a bit dry, it certainly does not lack for being accessible to readers.
3.5/5 stars.
June 8, 2018
A fascinating look into a Court that, despite what most people think “did nothing,” actually had a major impact on American jurisprudence and life. It gets a bit technical and lawyerly in places, but it is quite readable (and yet another book to read twice, once to flip to the citations in the back!)
January 8, 2026
This was a fascinating read about the Burger Court, as well as plenty of background information both before and after that era. The legal mess that was Watergate and the awful drama of religious/public schooling post-Brown v Board of Education were highlights for me in shining a light through a lens I hadn't considered previously: supreme court law.
February 6, 2017
Engaging overview of the Burger Court's impact on various aspects of the law. Well researched and thoughtful, it shows that this Court's legacy is very much a part of how the law structures U.S. society today. I enjoyed some of the behind the scenes stories and the legal analysis.
August 7, 2018
Good brief history of the Supreme Court focusing on the Warren court and the efforts of the following court under Warren Burgher to reverse many of the liberal changes, with discussion of those efforts up to the present day.
February 7, 2019
As an attorney, I am used to reading case law. But I expected this book to be more than a string of case summaries organized by subject. It proved to be not much more than that and this very full if the decisions of the Court during that period are already familiar to you.
August 24, 2023
In depth history and background on cases and analysis of how those cases affected future cases. Five stars because it was the kind of book that I'm still thinking about after reading it, and the kind of book I would return to for refresher information in the future.
May 21, 2017
A bit dry but informative book about the decisions of an oft over looked court. Teh other does a very good job making the cases accessible.
August 18, 2017
Readable, informative - I used a chapter in the classroom.
December 13, 2018
I love supreme court reporting and this was a fascinating read. Nice to read facts instead of news and I adore Linda Greenhouse. Definitely a good one!
August 20, 2024
This is very much an opinion piece. If you like MSNBC or FOX, you will understand. Slanted history is not my favorite but this book does cover an important segment of Court history.
June 14, 2016
I really loved this book. If you're completely new to constitutional law, this probably shouldn't be your first book. That being said, you should include it in your list of "must reads." The book doesn't get saddled down in overly dense analyses of judicial cases, but does require the reader to have some background on major issues and cases (from a constitutional law perspective). However, once a prospective reader has accumulated at least a basic knowledge of important cases (I wish I could off the top of my head point you to a good starting point), this book delves deeply into the Burger court to demonstrate how, while it failed to-on it's face-undo the (IMHO) the wonderful strides made by the Warren court, it did manage to eviscerate or weaken the accomplishments of that Court.
Once a reader has developed a general knowledge of the Court and it's cases, he/she will be able to enjoy this book as its meant to be: one that takes a unique approach to debunk the myth that the Burger court was essentially a court that brought limited change. Instead, it carefully demonstrates how you can alter constitutional law without overtly overturning precedent. Is this good? If you are a proud supporter of the Warren court's progressiveness, as I am, then no.
Regardless, it's a page turner, because it's both intelligently written but at the same time not overly dense so as to make it a slog to read. Enjoy!!
Once a reader has developed a general knowledge of the Court and it's cases, he/she will be able to enjoy this book as its meant to be: one that takes a unique approach to debunk the myth that the Burger court was essentially a court that brought limited change. Instead, it carefully demonstrates how you can alter constitutional law without overtly overturning precedent. Is this good? If you are a proud supporter of the Warren court's progressiveness, as I am, then no.
Regardless, it's a page turner, because it's both intelligently written but at the same time not overly dense so as to make it a slog to read. Enjoy!!
July 30, 2016
The Burger Court is often overlooked as a "do nothing" or transitional era. Compared to the very conservative Rehnquist and Roberts Courts, the Burger Court is moderate. But the authors provide a case-by-case approach to how the Burger Court paved the path for the much more conservative courts to come. Burger was not a good administrator at the Court but he managed to regress the liberal Warren Court without outright overruling its decisions. An excellent analysis of an under-reported era at the Supreme Court.
July 21, 2016
I'm being a little harsh with this review, I think, because of the hype.
It's not a terrible description of a lot of Burger Court holdings, but the analysis is very lacking. There's basically an unwritten "Pretty dumb, right?" at the end of every paragraph. But it's not enough just to say that the opinions weren't perfect or could be better. Not every opinion cited is just the "conservative" position as the title suggests. So, what would the authors want?
It's not a terrible description of a lot of Burger Court holdings, but the analysis is very lacking. There's basically an unwritten "Pretty dumb, right?" at the end of every paragraph. But it's not enough just to say that the opinions weren't perfect or could be better. Not every opinion cited is just the "conservative" position as the title suggests. So, what would the authors want?
December 18, 2016
Good book. Dispels the belief that the Burger court didn't do much; it laid the groundwork for the Rhenquist and Roberts court's sharp move to the right. Lots of cases discussed, with lots of context. Clear and engaging.
December 27, 2016
A strong account of the historical importance of Berger court decisions and how they opened doors for later decisions. Dryer than The Brethren and The Nine.
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