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.
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These decisions all curtailed the scope of constitutional rights. But the Burger Court also made it harder for defendants to vindicate these rights through the writ of habeas corpus—the vehicle for challenging a state court’s convictions in federal court. The Warren Court viewed habeas corpus as an essential backstop, a way to ensure that state courts respected the Constitution. The Burger Court, by contrast, cared more about showing respect for the states themselves. It ruled that habeas corpus is unavailable for defendants who failed to raise their rights at trial, even if the failure to do so was their lawyer’s fault. It also held that defendants cannot use habeas corpus to challenge state violations of the exclusionary rule.
In addition to gutting the decisions of the Warren era, the Burger Court built its own conservative legacy. It encountered some of the earliest claims of gay rights, and its response was dismissive. It upheld state laws criminalizing sodomy and rejected gay marriage without so much as a discussion. Pushing back against the civil-rights movement, it interpreted the equal-protection clause to prohibit only intentional discrimination, leaving the government free to enact seemingly neutral laws that nonetheless harm women and minorities. It also showed a marked hostility to the government regulation of business, ruling, for the first time, that the guarantee of free speech protects both commercial advertising and campaign spending by corporations.
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This story of the Burger Court is not entirely one-sided. As Graetz and Greenhouse concede, there were victories for liberal jurisprudence as well. The Burger Court gave us Roe v. Wade and expanded the equal-protection clause to bar discrimination based on sex. It protected the media’s right to publish classified documents in the Pentagon Papers case. And it rejected Richard Nixon’s claim that a presidential privilege shielded him from a court order to turn over the White House tapes, a decision that led directly to his resignation. But even a Court that leans heavily right is likely to issue a liberal decision from time to time: See, for instance, the Roberts Court’s ruling in favor of gay marriage last summer, or the Rehnquist Court’s upholding of affirmative action in 2003.
The question is not whether one can find counterexamples, but rather the Court’s overall direction. And Graetz and Greenhouse convincingly argue that the Burger Court moved decidedly rightward. They also show that even on those occasions when the Court veered left, the shift was often temporary—a sort of judicial head fake that preceded an even sharper move in the opposite direction.
Consider school desegregation. In the early days of Burger’s tenure, the Court issued two rulings that strongly reaffirmed Brown. In the first, it rejected continued attempts at delay by Mississippi school officials and ordered desegregation to take place immediately, in the middle of the school year. In the second, it upheld a lower-court order that mandated busing in the Charlotte-Mecklenburg schools. Just three years later, however, the Court undercut those precedents in Milliken v. Bradley (1974), which held that suburban school districts could not be included in a desegregation plan for the city of Detroit, even though full integration was impossible without them, and even though they were implicated in the system of racial segregation. More than any other, that ruling shattered the promise of Brown, since it meant that white parents could avoid integration simply by moving to the suburbs.
Around the same time, the Court dismissed an equal-protection challenge to the funding formula for public schools in Texas, which relied heavily on local property taxes. The plaintiffs, who lived in low-income areas, argued that reliance on property taxes put the poor at a serious disadvantage, since it meant less money for their schools—in some cases, 40 percent less—than for those in wealthy neighborhoods. But the Court, rejecting the claim that education is a fundamental right or that laws burdening the poor are constitutionally suspect, held that the formula was justified by the state’s interest in local control of the schools.
The Texas case highlights a theme of the Burger Court: its reluctance to embrace a positive vision of equality. While the government was barred from purposefully discriminating on the basis of race or sex, it had no obligation to actively promote equality or facilitate the exercise of constitutional rights. Thus the Court’s ruling that the government did not violate the Constitution by funding childbirth, but not abortion services, for poor women—even though the policy made it likelier that poor women would forgo abortions, the Court held that it was permissible because the government was under no obligation to fund their medical services in the first place. As the Court put it: “The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.”
This idea—that the Constitution imposes no duty on government to affirmatively protect its citizens—has since become firmly entrenched in case law and was the basis for one of the Court’s most troubling decisions, Deshaney v. Winnebago County Department of Social Services (1989). In that case, the Court ruled that county social workers were not liable for failing to protect a 4-year-old boy who was severely abused by his father, even though they were alerted to the abuse and could have removed him from his father’s custody. According to the Court, the boy’s injuries—he suffered permanent brain damage—resulted not from government action but from government inaction. And the latter, the Court held, does not violate the Constitution.
Deshaney was decided three years after Burger stepped down as chief justice, so it does not figure in Graetz and Greenhouse’s book (although Greenhouse has written eloquently about it elsewhere). But it is just one example of how conservative precedents laid down by the Burger Court continued to shape the law in later years. A more prominent example is the Burger Court’s protection of corporate speech, which ultimately led to the 2010 decision in Citizens United v. FEC invalidating limits on corporate spending in political campaigns.
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While Graetz and Greenhouse methodically demonstrate the extent to which the Burger Court gradually turned right, they have less to say about why that shift occurred. It is an important question to ask, because the answer sheds light on the various factors—political, personal, and social—that influence the direction of the law.
The simplest answer is political. While campaigning for president in 1968, Richard Nixon vowed to appoint “strict constructionists” to the bench who would erase the liberal victories of the Warren Court. And once in office, he was given the opportunity to make good on that pledge with four Supreme Court vacancies, more than any president since.
The justices that Nixon appointed were, for the most part, more conservative than their predecessors. Warren Burger, a stuffy law-and-order type, took over for the liberal icon Earl Warren. Harry Blackmun, Burger’s childhood friend, replaced Abe Fortas, a Lyndon Johnson appointee. Lewis Powell, a corporate lawyer from Richmond, Virginia, filled the seat of New Dealer Hugo Black. And William Rehnquist, a lawyer in Nixon’s Justice Department, assumed the place of John Marshall Harlan II, a center-right judge with a deep respect for precedent.
Not all of these justices contributed equally to the Court’s rightward march. Blackmun soon parted ways with Burger and became one of the more liberal justices of the late 20th century. Burger, in spite of being chief justice, was a notoriously weak leader: He often waited to cast his vote until he saw which way his colleagues were leaning, then joined the majority so that he could decide which justice would write the opinion. And Rehnquist, the most conservative of the group, found himself voting alone so often that he was nicknamed “the Lone Ranger.”
The real force behind the Burger Court appears to have been Lewis Powell. Nominated to the Court in 1971, he took the lead on many of the most important and controversial cases. It was Powell, a former chairman of the Virginia Board of Education, who fought hardest against cross-district integration in Detroit and who endorsed local control of school funding in Texas. It was Powell who ruled that state violations of the exclusionary rule do not justify relief in federal court. And it was Powell who insisted that corporations had a First Amendment right not only to advertise their products, but also to spend money influencing elections.
Powell denied that he had a conservative agenda and asserted that he was simply interpreting the Constitution “faithfully and impartially.” But the record belies that claim. Shortly before being nominated to the Court, he wrote a memo to the US Chamber of Commerce decrying what he saw as unfair attacks on business by liberal activists. To counter such attacks, he urged that the chamber launch a lobbying campaign targeting legislators, the media, the public, and the courts. “The judiciary,” Powell wrote, “may be the most important instrument for social, economic, and political change.” Six years later, when the chamber took his advice and formed a litigation arm to advance pro-business arguments in the courts, Powell was on the bench, waiting to turn those arguments into law.
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But the Court’s move to the right cannot be pinned on one justice alone; there were other forces at work. The startling rise in crime in the late 1960s and ’70s, along with a sense of social disorder, prompted a backlash against liberalism in general and legal liberalism in particular. Republican leaders aggressively promoted a law-and-order agenda, and the Court eventually succumbed to the pressure. Its decision to reinstate the death penalty in 1976 after a four-year moratorium was the clearest sign of retreat.
There was also an effort on the right to build an institutional infrastructure that could help it reclaim the courts. Backed by wealthy donors like Richard Mellon Scaife, Joseph Coors, and John Olin, conservatives founded public-interest law firms, spread the gospel of law and economics, and formed networking organizations like the Federalist Society. As Graetz and Greenhouse note, “Between 1976 and 1995, almost twice as many conservative Washington think tanks as liberal ones were created.”
As a result, the right is now outworking the left when it comes to advocacy before the Supreme Court. Many of the most prominent cases in recent years—challenges to affirmative action, voting rights, campaign-finance laws, and public unions—have been orchestrated by conservative groups seeking to push the law further right. One conservative activist, a retired stockbroker named Edward Blum, has been personally responsible for getting at least three cases to the Court since 2013.
The lesson here is that even the replacement of Scalia with a more liberal justice won’t immediately turn the Court around. The legacy of the Burger Court—as well as the Rehnquist and Roberts Courts—is too deeply entrenched to be undone all at once. But just as in 1969, the Supreme Court is at a crossroads. And this time, the path ahead could very well veer left.
