With the death of Antonin Scalia and the prospect that a Democratic president could appoint his replacement, it is possible for the first time in nearly 50 years to envision a liberal majority on the Supreme Court. Not since Chief Justice Earl Warren stepped down in 1969 have five members of the Court been sympathetic to a progressive interpretation of the law. The implications of such a shift would be enormous. Instead of merely playing defense, attempting to hold the line on issues such as affirmative action and abortion, the liberal justices could begin to advance a forward-thinking jurisprudence. In doing so, however, they would first have to look backward and confront a long record of conservative dominance. For while the liberals were in the minority, the justices on the right transformed the law in ways that cannot quickly or easily be undone.
Exactly when that transformation began has long been a subject of dispute. The conventional view is that it began not in 1969, when Warren Burger took over as the new chief justice, but 17 years later, when William Rehnquist replaced him. The Burger Court, according to this view, did not overturn the liberal revolution of the 1950s and ’60s; instead, it was a transitional Court that largely maintained the status quo. A prominent collection of essays even bore the title The Burger Court: The Counter-Revolution That Wasn’t.
Now, two astute Court observers are challenging that narrative. In The Burger Court and the Rise of the Judicial Right, Michael Graetz and Linda Greenhouse argue that the conservative counterattack did indeed begin with Burger. It is true, they acknowledge, that the Burger Court did not explicitly overrule the most important decisions of the Warren Court: its rejection of “separate but equal” in Brown v. Board of Education (1954), its invalidation of school prayer in Engel v. Vitale (1962), or its elaboration of the warnings that must be communicated to criminal suspects in Miranda v. Arizona (1966). But while technically leaving those decisions in place, Graetz and Greenhouse argue, the Burger Court effectively gutted them. Moreover, by establishing new conservative precedents across a range of subjects—discrimination law, workplace rights, corporate speech—it laid the “legal foundation for the even more conservative Courts that followed.”
This argument is best illustrated in their account of changes in the law of criminal procedure. In addition to requiring that police read suspects their Miranda rights, the Warren Court had ruled that states must provide legal counsel to poor defendants and that evidence obtained in violation of the Fourth Amendment must be excluded from trial. This trilogy of cases formed the core of the Warren Court’s criminal-procedure revolution. Yet the Burger Court significantly undermined each of them. It carved out a public-safety exception to the Miranda requirement, limited the circumstances under which the requirement applies, and made it easy for suspects to inadvertently waive their Miranda rights. It ruled that the lawyers provided to poor defendants are required to meet only the most minimal standards and that even when they fall below them, defendants have no remedy unless they can prove that a competent lawyer would have changed the outcome. And it sliced up the exclusionary rule, holding it inapplicable when police violate the Constitution in “good faith”; or when evidence obtained illegally would “inevitably” have been discovered through lawful means; or when the evidence is used to contradict a defendant’s testimony at trial.