Bench Memos

Law & the Courts

Ground Beef

That’s the groan-inducing title (my fault) of my review, in the new issue of National Review, of Michael J. Graetz’s and Linda Greenhouse’s The Burger Court and the Rise of the Judicial Right. The review is available to NR Digital subscribers here. My first two paragraphs:

By the standards of judicial conservatives, the so-called Burger Court — the Supreme Court presided over by Chief Justice Warren E. Burger from 1969 to 1986 — earns lots of poor marks. That Court invented, among other things, a supposed constitutional right to abortion in Roe v. Wade in 1973; struck down all existing death-penalty laws and then concocted a morass of confused standards to govern newly enacted laws on capital punishment; and paved the way for massive racial preferences by failing to give effect to federal statutes that bar discrimination on the basis of race. More broadly, the Court frequently adopted vague balancing tests that could be deployed to reach a broad range of results.

Law professor Michael J. Graetz and legal commentator Linda Greenhouse have a very different beef, so to speak, with the Burger Court, and they grind their beef throughout their sometimes interesting, sometimes tedious book. They claim that the Burger Court enjoyed much more success than has been realized in carrying out a “counterrevolution” against the historic liberal activism of the Court under Burger’s predecessor, Earl Warren. They also contend, as the second half of their title suggests, that the Burger Court “played a crucial role in establishing the conservative legal foundation” for what they label “the even more conservative Courts that followed.”

 

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