Faculty Celebrate—and Discuss—Michael Graetz’ New Book on the Burger Court

Columbia Law School Professor Michael J. Graetz presented his new book, The Burger Court and the Rise of the Judicial Right, to nearly all of his faculty colleagues during a lively and insightful discussion at the Law School on Sept. 27. He was joined in the book celebration and talk by his co-author, Linda Greenhouse, who covered the Supreme Court for The New York Times for 30 years. 

 

In highlighting the often-overlooked influence of the U.S. Supreme Court when Warren E. Burger was the chief justice, the authors provided the crowd with an overview of the Burger Court’s best-known opinions, insights into its justices, and reasons why it demands greater attention from a broad legal audience. They argued that, although the Burger Court does still garner a reputation as a transitional time in the Supreme Court’s history, from 1969 to 1986 its decisions gradually led to a “major conservative judicial movement” on criminal justice, business, and free speech issues that reverberates decades later.

 

“The Burger Court’s story is a more powerful and influential one than its previous legal characterization,” said Graetz, a leading national and international tax law expert who is a prolific author and speaker. The Burger Court is often viewed as moderate, but that is nostalgic and wrong, the authors contest.

 

For instance, said Greenhouse—who now serves as the Knight Distinguished Journalist in Residence and the Joseph Goldstein Lecturer in Law at Yale Law School—the Burger Court ruled in favor of abortion rights in Roe v. Wade, but subsequently ruled against the government paying for abortions for women who could not afford the procedure. The Burger Court also shut down civil commitment for the mentally ill under the false assumption that states would finance such services, Graetz offered.

 

Burger’s strength on so-called “law and order” issues made him an attractive Supreme Court nominee for President Richard Nixon, according to Graetz. The Burger Court did not reverse the decisions in Gideon v. Wainwright, Miranda v. Arizona, or Mapp v. Ohio that afforded protections for persons accused or suspected of crimes, but it left these rulings hollowed out like a Potemkin village, the professor added. Members of the Burger Court—notably Associate Justice Lewis F. Powell—also adopted a pro-corporation stance, foreshadowing later Supreme Court rulings on corporate personhood such as Citizens United. (Prior to joining the Court, Powell, then a corporate lawyer, drafted the Powell Memo, a confidential memorandum for the U.S. Chamber of Commerce to help galvanize business interests.) 

 

According to Greenhouse, the Burger Court justices, unlike their modern day peers, were free to make decisions without latter-day legal constructs—such as originalism—that judicial conservatives must salute.

 

Although the Columbia Law School event was conceived as a celebration of Graetz’ newest scholarly work, it also featured critiques and commentary from constitutional law expert Vincent Blasi, the Corliss Lamont Professor Civil Liberties, and Columbia University History Professor Eric Foner, a renowned historian.

 

In separate introductions, Foner and Blasi praised the book for its insight into the Burger Court’s consideration of crucial issues, and for its ability to seamlessly intertwine Supreme Court cases of varying degrees of notoriety. During the Q&A moderated by Law School Professor Jeremy Kessler, faculty members representing many different fields peppered Graetz and Greenhouse with questions, prompting a lively discussion that highlighted a near-encyclopedic knowledge of the Supreme Court by the authors, as well as the celebrants.