During Earl Warren’s tenure as Chief Justice of the U.S. Supreme Court (1953-1969), the court became an “engine for social change.” Claiming that the chief justiceship of Warren Burger (1969-1986) derailed the “quest for greater equality” of his predecessor, Michael Graetz and Linda Greenhouse have written a well-researched history of the Burger Court. Enhanced by revealing passages from the collected papers of three Burger Court members, it is a worthwhile book which reminds us that, in the words of Justice Oliver Wendell Holmes, the life of the law is not logic, but experiences.
Near the end of the 1967-1968 term, Warren feared that Richard Nixon, an ardent critic, would win the 1968 election and appoint his successor. Determined to avoid that contingency, Warren approached President Lyndon Johnson and stated that he would retire as soon as Johnson could get his successor confirmed.
In one of the great blunders in history, Johnson nominated a crony, Associate Justice Abe Fortas. However, GOP Senate members filibustered Fortas’ nomination, which was withdrawn. One month later, Nixon won the election and the right to appoint Warren’s successor.
In 1969, Nixon nominated Burger, who was a conservative D.C. Circuit appellate judge, to replace Warren. In campaigning for the presidency, Nixon had run as a law-and-order candidate. He also pledged to appoint a strict constructionist to succeed Warren, whose court had issued several controversial decisions protecting the rights of criminal defendants.
As recounted by the authors, Nixon found his man in Burger, who had raised his profile throughout the 1960s by writing scholarly articles and delivering high-profile speeches that criticized the Warren Court’s criminal law decisions.
In his private correspondence, Burger was even more critical. This is deftly illustrated through two letters culled by the authors from Harry Blackmun’s collected papers. In 1967, Burger wrote to Blackmun, a boyhood friend and circuit court judge, “if I were to stand still for some of the idiocy that is put forth as legal and constitutional profundity I would, I am sure, want to shoot myself. …” Soon after Nixon’s inauguration, Burger wrote Blackmun again, excoriating the Warren Court and commenting that Nixon “can only straighten out that place if he gets four appointments.”
Over the next two years, Nixon got his “four appointments.” In addition to appointing Burger, Nixon was able to name the replacements for Fortas, Hugo Black, and John Harlan. Joining Burger on the Court were three GOP stalwarts with seemingly impeccable conservative credentials (Blackmun, Lewis Powell and William Rehnquist).
In surveying the purported conservative wreckage done by the Burger Court, the authors have arranged the book into five parts. Three of these fit the story line (Crime, Race and Business). The other two do not (Social Transformation and the Presidency).
The book is most impassioned in discussing crime. The Warren Court decided a “trilogy” of seminal cases that protected the rights of the accused in state prosecutions, including: Mapp v. Ohio (excluding evidence from unlawful police searches and seizures); Gideon v. Wainright (indigent felons must be provided with a court-appointed attorney); and Miranda v. Arizona (confession inadmissible because the suspect was not advised in police custody of his right to remain silent and/or consult with a lawyer).
According to the authors, the Burger Court did not overturn, but was able to “tame,” the trilogy. First, the Burger Court weakened the Mapp exclusionary rule by significantly “narrow[ing] the instances when police searches violated the Fourth Amendment.” Second, the Burger Court imposed strict limitations on the right to counsel by “set[ting] a very low bar for evaluating whether the constitutional right to effective counsel has been fulfilled.” Third, the Burger Court “minimized” Miranda by: (a) allowing a tainted confession to impeach a defendant at trial if he chooses to testify; (b) limiting the custody requirement to permit more police questioning; (c) creating a broad public safety exception; and (d) making it “remarkably easy for a suspect to waive his rights to remain silent and have legal counsel present.”
The authors are also forceful in describing how Bordenkircher v. Hayes (1978) has caused the courts to abdicate “any judicial oversight over plea bargaining.” Coupled with Imbler v. Pactman (1977), which “extended absolute immunity from liability to prosecutors,” Hayes has “blindfolded criminal justice to prosecutorial abuses.” The authors lament that since 1978, prosecutors have “enjoyed essentially unfettered discretion over the criminal charges they file and the sentences they request.”
One of the best parts of the book explains the reasons why the Burger Court was a decidedly pro-business court. Prior to 1976, First Amendment free speech protections did not generally apply to “commercial speech.” Reversing course, the Burger Court found unconstitutional state statutes: (a) proscribing the advertisement by pharmacists of drug prices; (b) banning a utility’s promotion of electricity use; and (c) proscribing business corporations from spending money on advertising to oppose certain referenda.
The authors note that, in so empowering corporate business speech, the Burger Court laid the essential groundwork for the Roberts Court to decide in Citizens United v. FEC (2010) that corporate expenditures on behalf of political candidates is constitutionally protected speech.
To Nixon’s chagrin, the Burger Court issued the key court decision that led to his resignation. On July 24, 1974, the court voted 8-0 to compel Nixon to produce taped conversations pursuant to a subpoena in a Watergate-related criminal case. Two weeks before that decision, Warren was visited at his death bed by Associate Justices William Douglas and William Brennan. During the visit, Warren asked whether the Court would order Nixon to produce the tapes. In response, they said yes. Relieved, Warren died a few hours later, knowing the Burger Court would exact justice on his old foe.