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Books I’ve Read Recently –The Burger Court

This is another in my series of bad high school book reports on nonfiction books that I have read recently. I write them to memorialize my thoughts on the books in the vain hope that I will remember a bit more of what I read.

Authors and book

Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right, Simon & Shuster (2017).

Why I read it

I know Graetz as a tax professor (Yale and Columbia law schools) and former Assistant Secretary for Tax Policy (Reagan administration) and have read a couple of his books on tax issues. So, when I saw this used book, I bought it on a lark. I had not realized that Graetz must also teach general constitutional law. Linda Greenhouse is the longtime but now former NY Times Supreme Court reporter. I have not read any of her books but regularly read her Times stories and now often read her op-ed columns.

I’m a casual Court watcher and like legal history. So, this book is squarely within areas of my interests.

What I found interesting

Conventional wisdom is that the Burger Court inched constitutional law to the right but preserved much of the Warren Court’s legacy. That view motivated the right’s frustration with many of the justices appointed by Nixon, Ford, and Reagan. That, in turn, begat the process of running potential appointees through the Federalist Society’s purity and fidelity tests, rather than just trusting that conventional conservative Republicans would do.

The book’s thesis is that the Burger Court not only stopped the Warren Court trend but reversed the direction of its legal doctrines in many crucial areas – racial equality (e.g., enforcement of school desegregation and affirmative action), free speech (e.g., by protecting commercial speech), religion clause (moving to emphasize free exercise over establishment clause principles), etc. In short, it was more transformative than widely recognized. The book confirmed impressions that I had made over the years and provided a good review of broad constitutional law developments from the period when I was in law school and worked as a young lawyer.

The authors had access to many of the justices’ files and notes, as well as information from some Supreme Court clerks of the era. This provides insider accounts of decisional dynamics and back-and-forth between justices on big cases, making the book more interesting to someone who is familiar with the opinions but wants to know more about the why and how. The book is useful in providing context and a framework for the directions in which the Rehnquist and Roberts Courts have taken constitutional law. The authors make a good case that many of the more seemingly radical recent decisions often have deep roots in Burger Court decisions and reasoning.

Constitutional law change tends to move at a relatively glacial pace – compared with decisions made by the political branches. The deliberative and accretive pace confounds the impatience of the typical political activist – e.g., conservatives seeking to overturn or limit a decision like Roe v. Wade. That leads to a natural perception that things are not changing much and to demands for better vetting of judicial candidates to be sure they will decide cases consistently with whatever the norm is.

The following are some of my random observations on the book’s account (I did not take notes, so this really is random). I divided them up into thoughts on a couple of the justices who defined the Court and on more general topics.

Lewis Powell

  • Power is a central character in the book because he was often the swing vote in close decisions, he was the intellectual or philosophical force behind much of the Court’s shift in direction, and the authors had access to his papers. By contrast, Burger’s papers are still not available. He was a classic patrician, white shoe Big Law lawyer, country club type. Former head of the ABA and a southern Republican when Republicans were still a minority in the south.
  • Before he was appointed to the Court, Powell famously wrote a memo, a call-to-arms really, exhorting the business community to become more active in advocating before the Court for more business and market friendly decisions and hyping his concerns about the Warren Court direction on business issues. He helped to shape the Burger Court’s much more favorable treatment of business and, of course, the Chamber and other business interests are now some of the most active and influential advocates before the Court.
  • Powell was a former local school board member. When he ascended to the Court, enforcement of the Brown decision via school bussing was a key issue. His strong views were likely central to the Court’s retreat from desegregating schools beyond existing boundaries.

Warren Burger

The Court is named after him because he was the chief justice, but it is obvious from the authors’ account that he did not define the Court much beyond that. For example, he had no comparable case like Brown, in which Earl Warren’s politicking and personal charm yielded a unanimous decision overcoming contrary inclinations of several justices (for the good of the Court and country). Burger appears, somewhat like Warren, to be a bit of a politician type but clearly did not have the intellectual or personal force to drive the agenda or decisions. He often used his ability as chief to assign opinions to attempt to assume that role. For example, he would strategically vote with the majority so he could assign the opinion and often, then, reserve it for himself. That led, not surprisingly, to much rewriting and editing of his drafts by other justices. Fundamentally, he comes across as a lightweight – apparently even to some of his fellow justices (e.g., Powell wrote some caustic notes about his views on a couple cases).

The book includes the story about Burger answering the door of his residence during the Pentagon Papers case wearing a bathroom and carrying a “long pistol” when Washington Post reporters explained why they were staking out his home (i.e., to see whether DOJ was going to ask him for an order staying the lower court’s refusal to restrain publication). Offhand I would observe that Burger apparently was inclined to exercise Second Amendment rights that he believed the constitution did not guarantee him. I think I had heard that story before, but I’m not sure.

Subject areas

The book is organized by major constitutional and other legal subject areas – racial discrimination in K-12, affirmative action, death penalty, first amendment, business regulation, etc. A few observations on that:

  • The book begins with public school desegregation. Fifty years later, it is easy to forget how volatile and high profile a political issue that was. The authors make the point that the Court largely abandoned the effort in various ways – requiring finding intention for equal protection violations, respecting district lines (Millikan), refusing to find funding inequalities to violate equal protection (San Antonio), etc. I wonder to what extent some of that was politically inevitable or the extent to which attempting more (as would have been likely with the Warren Court personnel) would have led to an even greater political backlash with unknown and potentially nasty consequences for the body politic. As noted above, Powel was a key driver in much of this.
  • It’s easy to forget that the Burger Court developed and shaped how the guarantee of equal protection applies to sex and gender discrimination. That occurred partially in an environment where justices assumed the equal rights amendment would be ratified. The book goes through how the Court stumbled and groped its way to developing an intermediate scrutiny test. This was one of the more interesting stories to me – in particular, the comments and notes made by the justices in private papers.
  • My general observation is that the book provides a good overall review of the constitutional law developments, albeit from a liberal/left bias – someone with a Federalist Society view will be irritated.
  • The book includes an account of the Pentagon Papers case, further jogging my memory beyond my watching of The Post a while back. What struck me now was the contrast with the current concern over use of the shadow docket to effect change (e.g., preventing lower court orders on executive immigration actions, religion and COVID restrictions, and the Texas abortion law) and how the conservative justices approached the Pentagon Papers case. The Court expeditiously moved to decide the case on the merits and the conservative justices (including White, a dem) were in favor of preserving the status quo (i.e., a prior restraint on publication) in the meantime, a striking contrast with the current conservatives on the Court.

Politics and the abortion decision. The Court is obviously political on multiple levels – internally and externally, protecting the institution, moving party agendas (protecting and expanding gun and religious rights for the current majority), assessing the political effects of their decisions, its jurisprudence is affected by the justices’ political views, and so forth. (For the record, I agree with Judge Posner description of the Supreme Court as a political court (WaPo gated). Breyer’s book and Amy Coney Barrett’s recent statement to the contrary are simply not consistent with reality.) Even if some of that is controversial, it is a truism that the Court considers the political impact of its big decisions. The book’s account of the abortion decision is revealing in how difficult it is to assess the political implications and ramifications of its decisions.

The decision, I think it can be safely said, helped profoundly to remake American political parties and politics generally, as the authors point out. It, along with Nixon’s southern strategy, resorted the parties’ makeup, anchoring most devote Catholics and evangelicals in the GOP base (previously they had been distributed between the two parties). These effects took considerable time to become apparent. The conservative justices in the Roe majority (Blackmun, Powell, and Burger) were oblivious as to what they were doing. They were patrician, country club Republicans and that faction of the party largely favored modest liberalization of abortion restrictions. (The Republican Party’s opposition to abortion was not solidified until 1980. Reagan signed California’s pre-Roe liberalization of the allowance of abortion.) This realignment also changed the politics of judicial selection by Republican presidents. On reflection, it is probably no surprise that the Court is now dominated by conservative Catholics, given that realignment and how abortion politics are a defining characteristic of the GOP. This points out to me how random much of this stuff is, no matter how much thinking about it goes on in the Court’s chambers.

What counts as a conservative or Republican justice? Following on that train of thought, reading the book drove home how much things have changed during my professional life as to what defines conservativism and the nature of who the Republican Party would consider an acceptably conservative justice.

  • Nixon appointees except for Rehnquist were more consistent with the conservatism of a Justice Harlan (the second one) – largely cautious preservationists who deferred to the political branches except in extreme circumstances – compared with the latter-day activists whose agenda has the activist flavor of dismantling features of government that they don’t like (e.g., gun and business regulations). What is considered to be a conservative judge or legal thinker now is materially different than it was back then. Contrasting Powell or Burger with an Alito or Gorsuch says it all. The current alignment is more consistent with the ideology of the Lochner Court, but with a twist of preserving the social order in addition, perhaps, to laissez faire economics, the main principle of the Lochner Court.
  • The idea that an appointee with the characteristics and views of a Powell or Blackmun could be appointed now by a Republican president is laughable. (More interesting thought experiment is whether they would suppress their social-political views to remain Republican in the name of lower taxes and limited government, as many elites with similar views on social issues seem to do in the current environment.) Powell would be disqualified since he had no judicial experience – i.e., a track record to evaluate him – and was president of the ABA, now perceived to be a quasi-lefty group by many on the right. That just reflects how much the Republican Party has morphed since the early 1970s.

What disappointed me

Given that Mike Graetz was a coauthor, I thought the book might touch on at least one tax case. It did not, unless you consider San Antonio v. Rodriguez and/or Bob Jones to be tax cases. A weak case can be made for the latter, I guess.  On SALT issues (not Graetz’s expertise), the Burger Court made very consequential changes in the Commerce Clause rules – think, Complete Auto, which moved away from the formalism of previous cases, and the line of cases making state taxes per se unconstitutional if they differentially treat in-state and out-of-state businesses. I totally understand why they did not cover any of this, even as a sidelight in their section on business regulation. It’s a niche interest and there is no clear thesis consistent with their overall narrative.

I heartily recommend the book to anyone interested in constitutional law and the Court.

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