See Parts 1, 2, and 3

Continuing (and perhaps completing) my series of occasional posts on Michael J. Graetz’s and Linda Greenhouse’s new book The Burger Court and the Rise of the Judicial Right, I’ll offer these additional observations:

1. Graetz’s and Greenhouse’s treatment of Roe v. Wade (1973) and of the abortion-funding cases—Maher v. Roe (1977) (holding that states do not violate the Constitution when they fund childbirth but not abortion) and Harris v. McRae (1980) (holding that the Hyde Amendment’s restrictions on Medicaid funding of abortion do not violate the Constitution)—provides further evidence in support of some of the general critiques I’ve offered.

First, their discussion is devoid of any effort at serious constitutional thinking. Thus, Graetz and Greenhouse complain that “what the Court bestowed [in Roe] was a negative right: not a right to anything but a right against something, the right not to be prosecuted for performing an abortion or obtaining one.” (Emphasis in original.) The unreflective reader wouldn’t understand from their discussion that, consistent with the classical liberal tradition, the Constitution has been widely understood to confer only such “negative” rights. The First Amendment right to free speech, for example, does not include a right to have the government fund your speech. So why would the (entirely atextual and contrived) right to abortion be any different? Graetz and Greenhouse don’t even pose the question, much less address it.

Second, much as they welcome the (illegitimate) ruling in Roe, they are stingy in giving the Burger Court any credit for it, perhaps because doing so would tend to undermine their broader critique of the Burger Court. So we are instead told that Roe “was the product of strong historical forces that were sweeping away old concepts of the appropriate role of the state in enforcing codes of personal behavior in matters of sex and reproduction.” (Never mind the matter why such “strong historical forces” shouldn’t instead have played out in the legislative processes, or how the ethic of not killing unborn babies is merely part of some “code[] of personal behavior.”)

2. Graetz and Greenhouse cherry-pick their cases and downplay the significance of progressive victories during the Burger era.

Perhaps most remarkably, they never mention the 1982 ruling in Plyler v. Doe in which the Court held, by a 5-4 vote, that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. (Yes, Chief Justice Burger was in dissent, but Graetz and Greenhouse don’t exclude from their history of “Burger Court” rulings those cases in which Burger was in dissent, as the second case in point 2 of my Part 3 post shows.)

The Court’s rulings allowing racial preferences in the Bakke case and in United Steelworkers v. Weber failed to give effect to the seemingly clear language of the federal statutes at issue. But Graetz and Greenhouse barely mention Title VI in their discussion of Bakke, and rather than draw out the widespread implications of Weber for racial preferences generally, they somehow claim that its “ongoing significance lies in the wedge the controversy exposes between white and minority workers.”

On the matter of government aid to parochial schools, they complain about the Court’s 5-4 ruling in Mueller v. Allen (1983) (state tax deduction for school expenses does not violate the Establishment Clause) but never even mention its 6-3 ruling two years later in Aguilar v. Felton (1985), which held that the use of federal funds to pay for remedial teaching in parochial schools violates the Establishment Clause.

3. While I’m at it, and, yes, being nitpicky, I’ll mention a couple of minor, but surprising, errors that, I now see, made their way from the galley version into the final book:

Graetz and Greenhouse refer to “the 1969 case New York Times v. Sullivan” (p. 245). That case was, of course, decided in 1964, in the midst of the civil-rights battles. Yes, typos happen, but that’s an especially odd one for a former Supreme Court reporter for the New York Times.

Graetz and Greenhouse correctly state that Martin Luther King Jr. was assassinated in April 1968 and then add, “Three months later, Robert F. Kennedy was shot dead in Los Angeles after winning the California Democratic presidential primary.” Perhaps it’s only because these two horrific assassinations were among my first political memories, but I would have thought that anyone who lived through them would recall that they were only two months apart: King was assassinated on April 4, and RFK died on June 6.