The Lasting Influence of the Burger Court

Columbia Law School Professor Michael J. Graetz Discusses Research for his Forthcoming Book on the Legacy of Chief Justice Warren E. Burger

New York, September 24, 2014—Many scholars have written off the legacy of the late U.S. Supreme Court Chief Justice Warren E. Burger, in large part because the criminal procedure rulings in favor of defendants that he criticized prior to taking the bench in 1969 were still technically in place when he stepped down in 1986.

But Columbia Law School Professor Michael J. Graetz, who is working on a book about the Burger Court with former New York Times Supreme Court reporter Linda Greenhouse, said the Burger Court’s influence has been underestimated.
Addressing students and guests at a Sept. 17 lecture held in honor of Constitution Day (Burger directed the Commission on the Bicentennial of the United States Constitution after he left the court), Graetz noted how much more conservative the country was when Burger retired compared to when the 15th chief justice took his seat.
“It’s impossible to think the country could undergo such social and political transformation and somehow the Supreme Court on First Street in Washington, D.C., could be insulated and stand apart from that transition,” Graetz said.
He said the Burger Court’s rulings on school funding and bussing weakened many of the landmark decisions made under Burger’s predecessor, Chief Justice Earl Warren, including the desegregation goals of Brown v. Board of Education.
Likewise, Graetz said the Burger Court “whittled away” at Mapp v. Ohio (1961), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966), each of which protected the rights of criminal defendants. And the doctrine of corporate speech in cases decided under Burger’s tenure helped form the basis for Citizens United v. Federal Election Commission, the controversial 2010 decision striking down restrictions on corporate spending in federal elections.
“The Warren Court made equality a centerpiece of its jurisprudence,” Graetz said. “One thing that is clear is that the Burger Court did not.”
Graetz, the Columbia Alumni Professor of Tax Law and a leading expert on national and international taxation, is teaching a course this fall on the Burger Court. His interest in the subject grew out of a course on the 1970s he used to co-teach at Yale. Graetz’ book with Greenhouse is due out next year.