The Burger Court and the Rise of the Judicial Right
Introduction A Counterrevolution Reclaimed
On 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 observance—which, 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 consent—by We the People—remains in place.”1
Burger’s 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
bicentennial. “The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy,” Marshall said, adding: “I cannot accept this invitation.” The government the Framers devised, he explained, “was defective from the start, requiring several amendments, a civil war, and momentous social transformation” to better realize the promise of a more just society. Credit for the Constitution in its present meaning belonged not to the Framers, Marshall concluded, but “to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality’ and who strived to better them.”2
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 nation’s legislatures was ended by the new jurisprudence of one person, one vote. Organized prayer was ejected from public school classrooms.
The Warren Court’s overarching theme was equality. Reviewing his tenure, the chief justice told reporters that his Court’s 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).3
All three were in the service of greater equality.
The Court’s activism produced public backlash. “Impeach Earl Warren” signs dotted lawns across the South—and elsewhere—for 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.4
A few months later, the Louis Harris poll reported that 81 percent of voters agreed with the statement that “law and order has broken down in this country.” Only
14 percent disagreed.5
Certainly, not all these uneasy voters saw the Supreme Court as the primary source of crime in the streets—there were, after all, riots in cities across the country—but the poll reflected a widespread sense of vulnerability among the law-abiding public.