For whatever reason, I agreed some time ago to write a review of The Burger Court and the Rise of the Judicial Right, the forthcoming book co-authored by law professor Michael J. Graetz and legal commentator Linda Greenhouse. Partly as an exercise in sorting through my thoughts about the book, I may do some occasional blog posts about it, beginning with this one.

I’ll note at the outset that I’ve read through the book only once, in chunks scattered over several weeks. So I might revise some of my assessments on a second review.

Some general observations:

1. Graetz and Greenhouse organize their 13 chapters into five parts.

The first part on Crime deals with the death penalty; the Burger Court’s “taming” of the Warren Court “trilogy” of Miranda, Mapp, and Gideon; promoting plea bargaining; and restricting habeas. The Race part discusses desegregation and racial preferences in education. The part labeled Social Transformation includes Roe v. Wade, sex discrimination, obscenity, and the Religion Clauses. In Business, they discuss rulings on commercial speech, campaign-finance restrictions, racial quotas in employment, and union rights. And the part on the Presidency explores the Pentagon Papers case, immunity doctrine, and Watergate.

2. Graetz and Greenhouse aim to contest what they call the frequent depiction of the Burger Court “as simply having occupied a transitional role between the aggressively liberal Warren Court and the similarly aggressive conservatism [sic] of the Rehnquist Court.” (P. 7 (I’m citing the advance uncorrected proofs).)

They offer various versions of their own thesis. One very modest version is that “a great deal happened during the Burger Court.” (P. 7.)

They also make the more ambitious claim that the Burger Court “carried out its own counterrevolution” against the Warren Court. (P. 10.) How well they succeed on that claim depends largely on how expansively you understand it.

Graetz and Greenhouse close with the further claim that the second half of their title suggests—that the Burger Court “played a crucial role in establishing the conservative legal foundation for the even more conservative [sic] Courts that followed.” (P. 344.) Perhaps their claim means nothing more than that some rulings of the Rehnquist and Roberts Court built on some rulings of the Burger Court. But if they mean that the Burger Court somehow deserves credit for “the rise of the judicial right,” that’s not a point that (so far as I can recall) they ever really try to develop—and I think that the rise of originalism is much more a reaction against the intellectual aimlessness of the Burger Court than it is an outgrowth of that Court. Indeed, the best marker of the “rise of the judicial right” is probably the replacement of Chief Justice Burger with Justice Scalia in 1986. (More precisely: Rehnquist replaced Burger as Chief, and Scalia was appointed to Rehnquist’s seat.)

3. As some of the passages I’ve quoted indicate, Graetz and Greenhouse write from an unabashedly liberal perspective. I don’t mean that observation necessarily as a criticism: it would be difficult to write about the Burger Court without adopting some fixed perspective, and their joint effort is, for the most part, much less tendentious than Greenhouse’s usual output. But, like many advocates of the “living Constitution,” Graetz and Greenhouse seem to suppose that their ideological preferences are some sort of substitute for constitutional interpretation. We’re told, for example, that the Warren Court’s “overarching theme was equality” (p. 2) and that “[n]o such lodestar drew the Burger Court” (p. 341), but Graetz and Greenhouse offer little or nothing in the way of constitutional methodology to enable the reader to assess, or even to think about, whether one Court was more faithful to the Constitution than the other was.

4. The book consists heavily of detailed accounts of case after case after case. These accounts draw on various justices’ collected papers, and that reliance is undeniably a strength of the book. But most readers, I suspect, will find much of the book to be tedious and will be inclined to hunt for the parts that interest them.