The Burger Court and the Rise of the Judicial Right, by Michael J. Graetz and Linda Greenhouse

Eight stars

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.