THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT

Two scholars, each distinguished in his or her respective fields, challenge received orthodoxies about the Burger Supreme Court while detailing how earlier breakthroughs in civil rights and criminal law were reversed or hollowed out.

Graetz (Columbia Law School; The End of Energy: The Unmaking of America's Environment, Security and Independence, 2011, etc.) and Pulitzer Prize–winning former New York Times Supreme Court journalist Greenhouse (Yale Law School; The Supreme Court: A Very Short Introduction, 2012, etc.) break new ground in this study of the Supreme Court. What Chief Justice Warren Burger's (1907-1995) court actually did has been minimized over the years since he retired, and his years of service have been characterized as ones in which “nothing much happened.” On the contrary, in this groundbreaking study, the authors establish beyond a doubt that Burger's court gutted the most significant rulings of the previous court. Graetz and Greenhouse proceed by subject area, following the court across the years, as the cumulative body of its decisions reversed many of the major accomplishments of its predecessors. The rights of criminal suspects or defendants were undermined. School integration was transformed into economic segregation, resulting in the reconstruction of barriers between races by restricting funding to each separate district. By insisting that prior intent to discriminate be proven before its effects could be considered, the court also undermined certain civil rights achievements. Free speech protections were transformed by the court's perverse use of the power to expand rights of business speech (advertising) and earlier nonexistent freedoms of corporations. Like all human agencies, the court was fallible, misjudging both the contemporary importance of some cases and the future effects of others. Nonetheless, the authors relentlessly demonstrate, it accomplished the reversals it set out to achieve.

Two powerhouse law historians/journalists deliver a major contribution to the history of the Supreme Court.