Justin Driver is a law professor at the University of Chicago, and is writing a book exploring how the Supreme Court’s opinions have shaped the nation’s public schools.
After President Richard Nixon tapped Judge Warren Burger to replace outgoing Chief Justice Earl Warren in 1969 and then appointed three more justices during his first presidential term, many legal liberals feared that this cohort would systematically overturn the Warren court’s most esteemed precedents, including Brown v. Board of Education and Miranda v. Arizona. But a curious thing happened next: The dreaded day of reckoning never materialized. This surprising outcome was captured in an influential 1983 volume of essays on the Burger court subtitled “The Counter-Revolution That Wasn’t.” Justice Lewis F. Powell Jr., who served with Burger for 15 years, amplified this perception in a speech to the American Bar Association in 1986, the final year of Burger’s tenure: “There has been no conservative counter-revolution by the Burger court. None of the landmark decisions of the Warren court was overruled, and some were extended.”
Michael J. Graetz and Linda Greenhouse’s ambitious and engaging new book seeks to dislodge this conventional account of the Burger court. Even if that institution did not explicitly overrule key Warren court contributions, Graetz and Greenhouse contend that the dominant assessment of the Burger years severely understates the legal transformation that occurred during this period. “The Burger Court dramatically diminished the scope and impact of the Warren Court precedents: they survived, but only their façade was left standing,” the authors conclude. While Brown’s prohibition on racial segregation technically remained good law, they note, the Burger court curtailed its import by placing geographic limitations on busing and by refusing to invalidate expenditure plans that left inner-city schools underfunded. Similarly, the authors observe that, while police officers were formally required to inform arrested suspects of their Miranda rights, the Burger court hollowed out the decision by introducing major exceptions.
Instead of comparing the Burger court only with its institutional predecessor, the authors also examine the institution in light of its two successors: the Rehnquist court, beginning in 1986, and the Roberts court, beginning in 2005. Graetz and Greenhouse argue that on a wide array of issues — from presidential power to corporate power, from the establishment clause to the equal protection clause — it is impossible to understand the conservative shifts enacted by the Rehnquist and Roberts courts without first comprehending the body that initiated the rightward trajectory. As the authors contend, “Warren Burger’s Court played a crucial role in establishing the conservative legal foundation for the even more conservative Courts that followed.”
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