Michael J. Graetz - The Burger Court and the Rise of the Judicial Right

President Nixon is flanked by the departing chief justice, Earl Warren (left) and the new chief justice, Warren E. Burger, on the steps of the Supreme Court after Burger took the oath of office on June 23, 1969.

O n September 17, 1987, an extravagant celebration took place in Philadelphia to mark the bicentennial of the United States Constitution. A quarter of a million people lined the route for a parade that included a forty-foot replica of a parchment scroll: the Constitution deified. At 4:00 p.m., the hour at which the delegates to the Constitutional Convention had signed the document two hundred years earlier, a man stepped forward to ring a replica of the Liberty Bell. His abundant mane of white hair made him instantly recognizable. It was Warren E. Burger, the retired chief justice of the United States, who had ended his seventeen-year tenure a year earlier for the purpose of presiding over this very observancewhich, as it happened, fell on his eightieth birthday.

Burger addressed the crowd: If we remain on course, keeping faith with the vision of the Founders, with freedom under ordered liberty, we will have done our part to see that the great new idea of government by consentby We the Peopleremains in place.

Burgers call to keep faith with the Founders reflected one vision of the project they had launched with their great new idea. But it was not the only vision. Four months earlier, Justice Thurgood Marshall, who still sat on the Supreme Court, had offered a far more sober take on the meaning of the bicentennial in a speech to a bar group meeting on the Hawaiian island of Maui.

Marshall, the aging hero of the legal campaign to end racial segregation, and the first African American to sit on the Supreme Court, advised his audience to be wary of the flagwaving fervor surrounding the

The competition between these two narratives is in many ways the subject of this book.

From his appointment by President Dwight D. Eisenhower in 1953 until his retirement in the opening months of the Nixon administration in 1969, Chief Justice Earl Warren presided over a revolution in constitutional meaning. Official segregation by race came to an end. Criminal defendants acquired enforceable rights against compelled self-incrimination and illegally seized evidence. The political dominance that rural America held over the nations legislatures was ended by the new jurisprudence of one person, one vote. Organized prayer was ejected from public school classrooms.

The Warren Courts overarching theme was equality. Reviewing his tenure, the chief justice told reporters that his Courts three most important decisions were the reapportionment ruling ( Baker v. Carr ), the desegregation decision ( Brown v. Board of Education ), and the decision requiring that a lawyer be provided to any defendant facing a serious criminal charge who could not afford to hire one ( Gideon v. Wainwright). All three were in the service of greater equality.

The Courts activism produced public backlash. Impeach Earl Warren signs dotted lawns across the Southand elsewherefor years before the Chief Justice retired in 1969. A sizable portion of the public attributed rising crime rates to judicial leniency. At the start of the 1968 election year, 63 percent told the Gallup Poll that courts were too soft on criminals, up from 48 percent three years earlier. Certainly, not all these uneasy voters saw the Supreme Court as the primary source of crime in the streetsthere were, after all, riots in cities across the countrybut the poll reflected a widespread sense of vulnerability among the law-abiding public.

Competing signs along a California highway, one calling for the impeachment of Chief Justice Earl Warren in order to save our republic, and the other, from a local bar association, supporting the chief justice in the name of the rule of law.

These developments made Warren himself, and the Court he led, inviting targets, creating a situation ripe for exploitation by ambitious politicians, Richard Nixon prominently among them. Nixon ran for

Warren Burger was an ambitious politician in his own way, although he never sought elective office. At the 1952 Republican National Convention, he had been instrumental in delivering Minnesotas delegation to Eisenhower, who rewarded him by bringing him to Washington and naming him assistant attorney general in charge of the Justice Departments Civil Division. In 1956, the president named him to the United States Court of Appeals for the District of Columbia Circuit. On that court, often considered second only to the Supreme Court in its important role in the judicial system, Burger clashed repeatedly with his more liberal colleagues.