Ask the authors: Graetz & Greenhouse on the Burger Court

The following is a series of questions posed by Ronald Collins on the occasion of the publication of The Burger Court & the Rise of the Judicial Right (Simon & Schuster, 2016, pp. 450), by Michael J. Graetz and Linda A. Greenhouse.

Welcome, Michael and Linda, and thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book.

There has been no conservative counterrevolution by the Burger Court.

— Justice Lewis Powell (1986)

The contrast between the Burger Court’s “policies and

purposes” and those of the Warren Court is stark.

— Michael Graetz & Linda Greenhouse (2016)

Question: How did your manuscript find its way to Simon & Schuster and to its famed executive editor Robert Bender?

Graetz & Greenhouse: Michael’s longtime agent Wendy Strothman, of the Strothman Agency in New York, shopped our proposal around, and of the offers we received, we preferred Simon & Schuster’s reactions to our ideas and plans for our book. The fact that Bob Bender would be our editor was, of course, a huge plus.

Question: Your book opens with a photograph of Earl Warren standing in front of the Court flanked by Richard Nixon and Warren Burger. Warren leans to his left and waves as he looks in a different direction from the other two. Did you see this “farewell” photo as a sort of metaphor for your book?

Graetz & Greenhouse: No, we didn’t think of that AP photo as a metaphor, but it is an interesting point. We chose it for its narrative value. The fact that the outgoing and incoming Chief Justices look quite natural while Nixon is stiff as a board doesn’t hurt the visual interest. 

Question: How did you divvy up the work in researching and writing this book?

Graetz & Greenhouse: Much of our work was joint, in that we had taught the Burger material together as a seminar for three semesters – the first two before we had actually written anything. So the choice of topics and the organization of the chapters flowed quite naturally from that experience. Then we drafted the chapters individually, and of course gave feedback to one another.

Question: You draw amply and ably on the Justices’ “private” papers – some eighty-five-plus endnote citations to the papers of Justices Lewis Powell, Harry Blackmun, and Potter Stewart in addition to numerous references to Del Dickson’s The Supreme Court in Conference: 1940-1985. And you have a long endnote discussion of the 1974 Presidential Recording Materials Act. Given that, what is your view of Kathryn Watts’s argument that the working papers of federal judges, including Supreme Court Justices – meaning their internal chambers’ papers and electronic correspondence and documents relating to cases and other official court business – should be treated as governmental property?

Graetz & Greenhouse: There’s a great deal to be said for requiring the Justices’ papers to be treated as government property. That would at least put them under the control of government archivists. But, as we know from presidential papers, that doesn’t address the question of where they will be located or when they will become publicly available. Should they be released upon the Justice’s retirement? Death? Departure of all the Justice’s colleagues? Right now it’s totally up to each individual Justice. David Souter, for example, has left his papers to the New Hampshire Historical Society in Concord, N.H., not to be opened until fifty years after his death.

Question: Can you give us a snapshot of Warren Burger, the man and the Chief Justice? What were his strengths and weaknesses as you see them?

Graetz & Greenhouse: Burger was perceived by some of his colleagues as manipulative and not especially smart. He certainly wasn’t stupid – having managed single-handedly to climb from exceedingly humble beginnings to the center chair of the U.S. Supreme Court – and he was attuned to the temper of the times. Nixon put him there for a mission, one that we argue he largely fulfilled.

Question: Speaking of Chief Justice Burger, his official biography has yet to be published. Apparently, Timothy E. Flanigan, one of his former clerks, was to author it. Since such a biographer would have access to Burger’s “private papers” long before they are publicly released, might that fact have some notable impact on how we view the Burger Court’s legacy in the future? 

Graetz & Greenhouse: By “official biography,” we assume you mean “authorized” – with Burger’s papers made available to the biographer. We have no way of knowing what’s in those papers, held at the College of William & Mary (where he served as chancellor and of which he was very fond) and closed until 2026. It’s entirely possible that there’s not much there. We hope to be around in ten years to see whether they prove to be a game-changer in terms of Burger’s legacy and public reputation, but we’d be quite surprised if they were, given the large amount of documentary material that is out there in other collections.

Question: There have been other books on the Burger Court — books written by Tinsley Yarbrough and ones edited by the likes of Vincent Blasi, Charles Lamb and Stephen Halpern, and Herman Schwartz. And then there was Earl M. Maltz’s biography of Chief Justice Burger and Leonard Levy’s Against the Law: The Nixon Court and Criminal Justice. In what fundamental respect does your book – and especially the research that supports it – differ from those books?

Graetz & Greenhouse: Ron, you don’t mention Woodward and Armstrong’s The Brethren – controversial in its day (and a huge best-seller) that actually holds up very well. Most of the books you mention (like The Brethren too, for that matter) were written while the Burger Court was still ongoing. We are writing from a remove of thirty years – a perspective that is essential, given that a main goal of our book is to show how the Burger years continue to shape today’s constitutional landscape in many ways that most people don’t realize. There’s very little in our book that is strictly biographical. Our effort was to situate the Justices in the country’s political and social context and to show how what they did still matters. That’s different from the approach taken by others who have delved into some of the same material.

Question: You write of two competing visions of the Constitution. Chief Justice Warren Burger’s view exemplified one vision; it involved a “vision of the Founders.” Justice Thurgood Marshall embraced a competing vision; it “refused to acquiesce to outdated notions of ‘liberty.’” In terms of the long view of Supreme Court history, wasn’t the progressive spirit of the Warren Court – exemplified in decisions such as Brown v. Board of Education, Engel v. Vitale, Gideon v. Wainwright, Griswold v. Connecticut, Mapp v. Ohio, Miranda v. Arizona, Reynolds v. Sims, and New York Times Co. v. Sullivan – largely aberrational? Put differently, could it really have continued for decades afterwards?

Graetz & Greenhouse: Any Court – whether it was the Burger Court or the Warren Court redux – would have had to address the questions that the Warren Court itself left on the table – to give just one example, how to fulfill the almost completely unfulfilled promise of Brown v. Board of Education, with almost no desegregation having occurred during the fifteen years that followed Brown. So your question is well taken – the answers were going to come in the context of a different time. Certainly Nixon’s successful candidacy in 1968 — remember, he along with George Wallace ran against the Warren Court and did so very cleverly — was certainly an indication of public skepticism about the role of the Supreme Court as a change agent. The Supreme Court doesn’t carry on in a vacuum but exists in dialogue with the elected branches and, through them, with the public. Barry Friedman’s The Will of the People is a smart recent take on this theme.

Question: Based on your extensive research, do you think that Bob Woodward and Scott Armstrong’s major take-away points (beyond United States v. Nixon) in The Brethren have been largely vindicated or repudiated? And how so?

Graetz & Greenhouse: As we indicated earlier, The Brethren holds up well – as well it might, given the authors’ sources and the documentary material that was made available to them– even though it covers only the first few years of Warren Burger’s tenure. We certainly didn’t find any instance in which The Brethren got its facts wrong. One could debate matters of emphasis, characterizations of the Justices, and context – but we have used excerpts from The Brethren as teaching material without any qualms.

Question: As you document in Chapter 2, the Burger Court broke noticeably from its predecessor in the area of its Fourth and Fifth Amendment jurisprudence, among other areas of criminal justice law. Much of that jurisprudence continued on into the Rehnquist Court era. Today, there are numerous Court-recognized exceptions to Mapp v. Ohio and Miranda v. Arizona. Is that trend likely to be reversed in our lifetime even if, for example, Chief Judge Merrick Garland were to be seated on the Court? That is, has the jurisprudential die been largely cast?

Graetz & Greenhouse: The hollowing-out of the Warren Court’s criminal procedure landmarks took place incrementally, case by case (which is why many people were fooled into thinking that nothing much happened during the Burger years), and there’s no reason why the protections for defendants might not be built back up by a Court that cared to do that. One complication would be laws on the books that codified the cutbacks – like the Antiterrorism and Effective Death Penalty Act (AEDPA) in the habeas area. But even there, the Rehnquist and Roberts Courts have read the statute in the way most likely to cut off state inmates’ access to federal court – and that’s not the only way to read it, as a series of five-to-four decisions have shown. If a new more liberal Supreme Court were to coalesce in the foreseeable future, the criminal defense and civil liberties bars would certainly serve up cases that the new majority could use as vehicles to revisit some of these questions if it wanted to do so.

Question: Justice Ruth Bader Ginsburg said that Roe v. Wade “is a great starting case.” Your take on it was that Roe “became something the Burger Court neither intended nor even necessarily understood: a symbol of women’s empowerment.” Please tell us more about your thinking here.

Graetz & Greenhouse: We could write a book in answer to this question! (In fact, Linda and her frequent writing partner, Reva Siegel, did write such a book, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.) Briefly, to the extent that the Justices perceived abortion as a policy issue, it was a matter of public health policy. The voices they heard were the voices of the medical community and the elites of the legal profession, through the American Law Institute, calling for reform of the country’s nineteenth-century criminal abortion laws. Don’t forget that in the seven-to-two majority in Roe were three of Nixon’s four Justices. A strong majority of Republicans favored reform (and a majority of all other groups in the country too, including Catholics, according to a Gallup Poll in the summer of 1972). If you read Roe v. Wade, which few people actually do, you’ll be hard pressed to hear the voices of women. It’s all about doctors being able to exercise their best judgment on their female patients’ behalf without facing criminal consequences. It took years of diligent work by anti-abortion activists, eventually allied with Republican Party strategists, to effect party realignment on this issue – and it was top-down rather than bottom-up.

Question: On the topic of gender equality and the Burger Court, you refer to it as “a story of promises fulfilled and unfulfilled.” Can you say a few words about that?

Graetz & Greenhouse: The Warren Court never said a word to suggest that the Fourteenth Amendment’s guarantee of equality had anything to do with women. It was the Burger Court that created a jurisprudence of sex equality – spurred, of course, by Ruth Ginsburg’s litigation campaign on behalf of the ACLU. Justice Ginsburg has said that she came along at the right time. The Court was responding to changes in society, the workplace, and the family. Of course, the Court went so far and no further – never (still not yet) to strict scrutiny; never to fully understanding discrimination on the basis of pregnancy as discrimination on the basis of sex; never to understanding that the government that subsidized medical care for poor women had an obligation to include abortion in that coverage. In the book, we examine the cases that pressed and reached those limits.

Question: Those interested in the law of sexual expression will find your discussion of Miller v. California quite informative, especially the jockeying between Chief Justice Burger and Justice Brennan. Equally fascinating are your revealing accounts of the private communications between the Chief Justice and President Nixon concerning the case. Mindful of that, do you suppose that such communications are largely a thing of the past, or not?

Graetz & Greenhouse: We agree – the Miller story as revealed in the Justices’ papers is fascinating. The story of the communication between Nixon and Burger, of course, came to light only because of the public release of Nixon’s tapes. You can now find it on YouTube, but it was originally noted in Kevin McMahon’s Nixon’s Court, which we cite for that. Given the number of “expletives deleted” in the original transcription of the Nixon tapes, there is a bit of amusing irony in his protestations to Burger. We cannot know, of course, but we would be extremely surprised if that kind of communication between the President and any Supreme Court Justices took place today.

Question: In Obergefell v. Hodges, Justice Kennedy referred to the Court’s 1972 dismissal of Baker v. Nelson (a gay rights case) as a ruling based on “assumptions defined by the world at the time.” Do such assumptions explain the five votes in Bowers v. Hardwick, or is there another explanation?

Graetz & Greenhouse: Baker v. Nelson, a same-sex marriage case, came to the Court under its mandatory jurisdiction and was dismissed without opinion as lacking a substantial federal question. The same-sex marriage claim was undoubtedly ahead of its time in 1972. It’s hard to say the same thing about Bowers, a challenge to Georgia’s sodomy law. The gay rights issue was fully joined by then, the dissents were powerful, and Justice Lewis Powell, the Justice in the middle, wavered agonizingly – first voting to strike down the Georgia law, then changing his mind after the conference, and eventually, after he had retired from the Court, saying that he regretted his vote. Clearly homosexuality was not a comfortable subject for the Justices, and it’s important to remember that the AIDS panic was at its peak at the time. It’s rather amazing to contemplate that because Lewis Powell couldn’t hold to his original position, the claim was rejected by a vote of five to four and the country had to wait another seventeen years, until Lawrence v. Texas in 2003, for the Supreme Court to deem gay men and lesbians within the Constitution’s protection.

Question: As you point out in your discussion of Bowers, and drawing on a private note from Chief Justice Burger to Justice Lewis Powell, the Chief saw this case as involving “the most far-reaching issue” of his judicial career of “30 years.” Why do you suppose he saw this issue as so paramount?

Graetz & Greenhouse: This was certainly over-reaching hyperbole on Burger’s part. Bowers was decided in the closing weeks of his tenure on the Court and he may have lost a degree of situational awareness. Rhetoric like this was certainly not the way to persuade Lewis Powell of anything.

Question: In Chapter 10 you discuss the “Burger Court’s invention of First Amendment protection for commercial speech and its grant (by one vote) of political speech rights to corporations.” How would you respond to the claim that this “invention” was made possible in notable part by liberals such as:

• Melvin Wulf, who successfully argued Bigelow v. Virginia on behalf of the ACLU;
• Alan Morrison, who successfully argued Virginia State Pharmacy Board v. Virginia Citizens Consumer Council case on behalf of Public Citizen;
• Joel Gora, who defended the First Amendment claim in Buckley v. Valeo on behalf of the ACLU;
• And Justice William Brennan, who joined the Burger Court’s opinions in cases such as Virginia Pharmacy, Buckley, and Central Hudson Gas & Electric Corp. v. Public Service Commission.

If what the Burger Court did in the commercial speech and campaign finance line of cases helped to cultivate “the rise of the judicial right,” don’t liberals also bear some responsibility for those developments?

Graetz & Greenhouse: Ron, our effort here was not to assign credit or blame, but rather to make clear that the commercial speech doctrine was a new and highly consequential departure for the Court. Certainly it had the roots that you describe, at least to some degree. If liberals had listened to William Rehnquist, the sole dissenter in many of these cases who issued prescient warnings about what would become of the First Amendment, we might not now have commercial speech as the powerful tool of deregulation that it has become under the Roberts Court.

Question: The topic of “workplace inequality” gets a good dollop of attention in your book. You write: “The Burger Court decided hundreds of cases concerning employees’ complaints of disadvantages in their workplace. In the most important conflicts [dating back to the Court’s 1971 ruling in Griggs v. Duke Power Co.] between business and unions, business interests prevailed.” You also note that “our nation moved to the right during Warren Burger’s time on the Court.”

Given that, and given the Republican captures of the White House and the corresponding conservative appointments to the Court, could we expect much of anything other than what has come to pass? That is, isn’t the real proximate cause here the election of Richard Nixon? If so, might the “rise of the right” be seen better through a political lens than through a judicial one? Or is there something else at work here?

Graetz & Greenhouse: Indeed, we make it very clear that the Burger Court was in many respects Nixon’s Court. Nixon ran against the Warren Court, and he was lucky enough to get four vacancies in short order (enabling the appointments of Burger, Blackmun, Powell, and Rehnquist.) Had Hubert Humphrey been elected president in 1968, we’d have gotten a very different Court. So of course politics, reflective of the national mood, has a great deal to do with our story. We then go on to show the impact that the political turn to the Right had on the Court, the cases that it chose to decide, and on how it decided those cases.

Question: By the end of your book one gets the impression that Justice Powell – the “centrist” jurist – was both the great enabler of the Burger Court’s “counter-revolution,” on the one hand, and the great denier of that very charge, on the other hand. Is that true? What are your thoughts?       

Graetz & Greenhouse: You’re right – Powell’s role was very substantial, to a degree that surprised us. He commanded respect within the Court. His instincts were notably conservative: pro-business, pro-local and state discretion, ready to draw a line against recognizing new rights or handing new remedial powers to the federal courts. He also left a great set of papers (at Washington & Lee), making it easy to trace how often his deepest-held views prevailed and how those views, projected onto the pages of United States Reports, so often trace the story of the Burger Court.

Question: To return to an earlier question but from a different angle: Two years ago Professor Dave Fontana wrote that the “loss of the Warren Court Generation perspective means that we argue more and more between the 40-yard lines. We start from the premise that courts cannot and should not do anything transformative, and we argue about which less transformative things they can do.” His point: it’s more than the loss of a progressive Court; it’s now the loss of a progressive generation. What do you think?

Graetz & Greenhouse: That two-year-old prediction seems premature now, in light of the shadow that Bernie Sanders has cast over the 2016 election cycle, and the growing concerns about economic and racial inequality. But limiting the observation to the Supreme Court itself, it is certainly fair to say that there is currently no Justice on the left – and there hasn’t been for a long time now – who wants to harness the Constitution as an engine of change – certainly nothing to match either the Warren Court or the subsequent agenda of judicial conservatives. The judicial Left has been playing defense for most of the last fifty years. We think our book shows why.

Question: Is there any chance the either or both of you will do a book on the Rehnquist or Roberts Courts? If so, tell us. If not, any thoughts on your next book?

Graetz & Greenhouse: The Burger Court ended thirty years ago, the Rehnquist Court eleven years ago, and the Roberts Court will probably last another fifteen to twenty years. We think there’s value in waiting long enough to see how the seeds planted in one era of the Supreme Court’s history fare in the next. If either of us ever does do a book on the Rehnquist or Roberts Courts, it won’t be any time soon. Linda is working on a book for Harvard University Press that has some elements of memoir and some of press criticism under the title Just a Journalist. Michael has begun work (with the political scientist Ian Shapiro) on a book on the political obstacles to addressing increasing inequality and how they might be overcome.