What do Warren Burger and RFK have in common?

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

With his windswept cottonball hair and authoritative burr, Warren Burger looked the part of a chief justice to a boy growing up in the seventies and eighties. Contemporary and retrospective accounts of uneven accuracy have shown that playing and looking the part of a chief justice were the limits of his achievement. Mocked as a blowhard and opportunist, one who would change his vote on a decision so that he could assign opinions to himself, Burger stands in the shadow of liberal predecessor Earl Warren and conservative re-aligner William Rehnquist, whom Ronald Reagan promoted in 1986. Even official photos of the Court during this period convey the sense of antiquarian early-bird-special torpor, with Sandra Day O’Connor, at a hale and hearty fifty when Ronald Reagan nominated her.

In The Burger Court and the Rise of the Judicial Right, Michael Graetz and Linda Greenhouse argue that Burger’s sixteen-year tenure saw continual erosion of the Warren Court’s achievements in criminal justice reform, employee rights, and school desegregation. While overruling of decisions and disregard for stare decisis were rare, Warren and allies like Rehnquist and putative swing justices Potter Stewart, Lewis Powell, and O’Connor gutted enough of them to leave these rulings in some cases as useless as tree stumps. 1976’s Stone v. Powell, for example, eased the means by which appellants took for granted what Graetz and Greenhouse call the “fairness of state adjudications.” In a little remarked-on decision called San Antonio Independent School District v. Rodriguez that on first glance looked like a model of judicial restraint, the majority “guaranteed” that financial disparities between school districts would become a matter of course; by tying property values to the allocation of monies, the decision restricted “the constitutional consequences of being poor.”

Religionists also got a helping hand from Burger, a man appalled by the decadence of late twentieth century life (as his giggling and smirking exchanges with President Richard Nixon revealed). O’Connor’s majority opinion in 1984’s Lynch v. Donnelly advanced the novel idea that the public display of a creche did not “have the effect of communicating a message of government endorsement or disapproval of religion”; the Establishment Clause, according to the opinion, exists so as not to send a message of exclusion, which surely will amuse James Madison. And in Bowers v. Hardwick, gay and lesbian Americans at the height of the AIDS crisis endured the opprobrium of a Court that saw in Byron White’s opinion a right to homosexual sodomy as “facetitious” and a chief justice whose concurrence quoted Blackstone’s line about the evil of sodomy. Seventeen years later Lawrence v. Texas overruled it; even Powell, so unfamiliar with homosexuality that he asked clerks how gay sex worked, regretted siding with his colleagues.

Of course, the Burger Court is (in)famous for ensuring that a woman had a right to pursue a safe and legal abortion, and for eliminating a felonious president’s hopes of staying in office in United States v. Nixon; but Burger couldn’t leave well enough alone, finding a right to executive privilege that has irritated partisans of open government since. And as millions know, discriminating against pregnant women is discrimination, period, thus a violation of the Fourteenth Amendment. This is common sense. However, Graetz and Greenhouse make the essential point: “Warren Burger’s Court played a crucial role in establishing the conservative legal foundation for the even more conservative Courts that followed.” A young lawyer in the Reagan Justice Department, a former Rehnquist clerk, learned how to chip away at precedents with incremental changes. John Roberts will sit on the Court for years.

Larry Tye – Bobby Kennedy: The Making of a Liberal Icon

Coldest son of a bitch ever, Richard Nixon growled — as a compliment. Civil rights leaders and fellow Democrats often had no compliments to pay. Born too late to know Camelot and how the unceasing tumult of the sixties despoiled it, I’ve often wondered when the hell the Kennedys will stop being undead. Larry Tye’s biography comes closest in my lifetime to explaining Robert Kennedy’s maturation from captain of JFK’s praetorian guard to liberal icon who had earned the trust of blacks and Hispanics before Sirhan Sirhan killed him. The book survives its often ghastly prose. “The hard-as-nails shell they had heard about protected a deep, reassuring tenderness” describes mussels, not the senator from New York; and “Castro may have won Round 1, but the Kennedys weren’t paper tigers, no matter what the Republicans said, and they didn’t give up that easily.” Well, how reassuring.

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