Saturday, July 16, 2016

Graetz and Greenhouse on the Burger Court

Mark Tushnet

I just finished "The Burger Court and the Rise of the Judicial Right," by Michael Graetz and Linda Greenhouse. I'm not going to try to "review" it (because I know too much about the material for me to be able to evaluate its usefulness to its target audience). I do want to offer some reflections on some conceptual issues associated with the way they frame the book -- as a counter to the "counterrevolution that wasn't" thesis that, as they accurately say, seems to be the prevailing one about the Burger Court. (The reflections may be of some use for those thinking about using the book for undergraduate courses.)

The framing questions, of which there are several, are associated with choosing a baseline. "The Burger Court" began in 1969 and ended in 1986. So, one baseline is the state of the law when Burger arrived. One might ask, Compared to the state of the law then, was the state of the law "worse" according to some metric by 1986? For example, the Graetz-Greenhouse argument is, I think, clearly strongest with the topic with which they open the book, rights of criminal defendants. So, were criminal defendants worse off in 1986 than they were in 1969? Did they "have" rights in 1969 that they didn't have in 1986? (Substantively, I think it's hard to make that case persuasively; on the other hand, as a matter of procedure, criminal defendants clearly had less access to habeas corpus in 1986.)

Or, one might ask, Did the Burger Court alter the trajectory of the Warren Court's decisions in a (somewhat) counterrevolutionary way? Answering that requires one to make a counterfactual projection of the Warren Court. Should one posit something like a straight-line development? So, for example, on this view "the Warren Court extended into the future" would have continued to increase the rights of criminal defendants. One problem with doing this is that it assumes that the "Warren Court extended into the future" wouldn't have been affected by the changes -- social and economic -- in the wider society that Graetz and Greenhouse (correctly) say affected the Burger Court. Or, one might ask whether the Burger Court rejected the results in novel cases that "legal logic" based on Warren Court precedents would have required. I needn't say much about that. (John Hart Ely made the strongest possible case for that proposition, in connection with a single case, New York v. Harris, where, on Ely's analysis, the Burger Court was able to reach what appeared to be a legally defensible result by misrepresenting the factual record.)

With respect to women's rights, there's a special problem. Either a straight-line projection or the "legal logic" position would lead one to conclude that the Burger Court was "counterrevolutionary," though clearly not in the sense that word has in the literature. For all practical purposes, the Burger Court created the law of women's rights. Graetz and Greenhouse characterize that law as enacting "Phyllis Schlafly's ERA," by which they mean that the Burger Court didn't enact the agenda of the women's rights movement in the 1970s and 1980s. So, in this connection, the baseline isn't the law as of 1969, but the law as the women's rights movement would have liked it to be (then or at some later date).

The book's subtitle, "The Rise of the Judicial Right," suggests a different perspective. Here one asks whether the Burger Court's decisions provided the foundation -- made reasons available that weren't available in 1969 -- for later developments by the Rehnquist and Roberts Courts. So, for example, the "commercial speech" doctrine rests on the rejection of well-settled law as of 1969. The story about campaign finance law, which is another one Graetz and Greenhouse tell, is a bit more complicated, because one has to decide whether -- as defenders of the current state of the law assert -- the Burger Court's decisions rested on deep principles of free speech to which the Warren Court was also committed. (My own answer is, Yes as to treating truly independent expenditures, of which there are now not many, as covered by the First Amendment, and No as to the rejection of something like equalization as a justification for regulating both candidate and even independent expenditures.)

Each of these baselines, and undoubtedly more, are intellectually defensible. To the extent that there's a problem with the book as a whole, it is that the authors shift from one to another baseline without indicating clearly enough that that's what they are doing.

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