Tracing The 'Rise Of The Judicial Right' To Warren Burger's Supreme Court

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. One of the things at stake in this presidential election is the future direction of the Supreme Court. Since the death of Justice Scalia, the court has had only eight justices and has sometimes been stalemated 4-4. Assuming Congress continues to block President Obama's appointment of Merrick Garland, the next president will have at least one justice to appoint to the court, and that is likely to tip the balance.

You can see the influence one president can have on the court by looking at Richard Nixon who appointed four justices. His first appointment, Warren Burger, in 1969, was also chosen by Nixon to be the chief justice. Nixon's final appointment, William Rehnquist, became the next chief justice after Burger retired in 1986.

The Burger Court has often been described as playing a transitional role between the liberal Warren Court and the conservative Rehnquist Court. But my guest Linda Greenhouse says that the Burger Court played a crucial role in establishing the conservative legal foundation for the even more conservative courts that followed.

She co-wrote the new book, "The Burger Court And The Rise Of The Judicial Right" with Michael Graetz, a law professor at Columbia Law School and Yale University. Greenhouse covered the Supreme Court for The New York Times for nearly 30 years and now writes a biweekly column for The Times website. She also teaches at Yale Law School.

Linda Greenhouse, welcome back to FRESH AIR. Why did you want to look at the Burger Court?

LINDA GREENHOUSE: The book, really, Terry, is a - is an exercise in historical reconstruction. And what came jumping out at us is that this era of Supreme Court history is quite profoundly misunderstood. It's kind of written off in the legal academy and, I think, in the popular mind as a, quote, "transitional phase of court history" when, quote, "nothing really happened" between the very activist Warren Court and a very conservative Rehnquist Court.

And we just started digging into it and thought, you know, there was a lot going on there, and it's worth a book.

GROSS: Why is the Burger Court relevant today?

GREENHOUSE: A couple of reasons - first, the resonance of what's going on these days in our politics. So Richard Nixon ran against the Supreme Court, ran very successfully against the Warren Court as a court that coddled criminals and had ushered in the crime wave that was then very salient in the country. He got elected, of course, and within three years, he had four vacancies. And he recreated - he created a new Supreme Court and obviously that resonates with our politics.

But to go back to what the Burger Court actually accomplished, there were a number of major cases that either set out new principles or prevented new principles from taking hold. And those cases are still almost all still good law and continue to define the constitutional landscape on which we live today.

GROSS: So you say that the Warren Court, you know, is perceived as a very liberal court that was succeeded by the Burger Court, which was kind of, you know, neither here nor there and then the Rehnquist court, which was very conservative. But you say that the Warren Court painted its liberal decisions in broad strokes, but didn't fill in the blanks. And it was up to the Burger Court to then hear the cases that would fill in the blanks and that the Burger Court filled in those blanks usually pretty conservatively.

And an example that you give of that is the really important decision, Brown v. Board of Education that - where the court said that the schools have to be desegregated, that, you know, separate but equal isn't equal. But the Burger Court had to define, well, how do we go about desegregating the schools? And how did the Burger Court set limits on bussing and spending in schools?

GREENHOUSE: Right, I mean, your observation is completely correct. Any court that followed the Warren Court would have had to fill in those blanks because between 1954, when the Warren Court decided Brown against Board of Education and 1969, when Chief Justice Warren retired, there had been precious little desegregation throughout the South and there was growing segregation, not by law, but by housing patterns in the North. So what to do about that? What's the role of courts? What kind of remedy? These were open questions.

Burger Court comes in, upholds a busing order in the South, in the Charlotte-Mecklenburg case. That was very interesting - initial cut at the problem. But when the question moves to the North to school systems that were functionally segregated because of housing patterns, inner cities ringed by white suburbs, that's where the Burger Court drew the line in a case from Detroit, Milliken against Bradley. Five to 4 said, no, the busing order may not cross district lines. And that's another one of those cases like the school finance case that really gave us a legacy that we've been struggling with ever since.

GROSS: Would you describe the school finance case that you just referred to?

GREENHOUSE: That was a challenge to the way school districts were financed in Texas - happened to be in Texas, but it was all over the country where school - the school budgets were based on the wealth that could be raised from the local property tax. And that led to, of course, great disparities, great inequalities of wealth, led to inequalities of resources available to the school systems.

So the question was, what does the 14th Amendment Guarantee of Equal Protection have to say about that? And the Burger Court's answer was really nothing. So that left the disparities in school financing and resources in place.

GROSS: So in continuing with one of the themes of your book, which is that the Warren Court was a very liberal court, but its decisions were kind of open-ended and it was up to the Burger Court to kind of fill in how those blanks would be filled in in subsequent decisions. So let's look at an example of that, which is crime.

Chief Justice Warren's biggest opponents criticized him among other things for the court's Miranda ruling that, you know, someone who is arrested has to be read their rights before they're questioned. So you say it was up to the Burger Court to define how that would actually work out. So what did the - how did the Burger Court fill in the blanks?

GREENHOUSE: So the Miranda case is a very good example of why the Burger Court, in our view - my view and that of my co-author Michael Graetz - has been so misunderstood because you're absolutely right. The Miranda ruling by the Warren Court was very controversial. And by the end of the Burger Court, it was still on the books. So people say, well, you know, Miranda, very controversial, liberal, pro-defendant decision still in the books and so the Burger Court didn't really do anything about that.

What we show by discussing a series of Miranda-related decisions by the Burger Court, is that by the end of the Burger Court, the Miranda ruling was really left standing, yes, but hollowed out from the inside - you know, a bunch of termites had been let in there. And so there were many situations where a criminal suspect was - would be deemed to have waived his Miranda rights. Questioning could proceed despite him not having received his Miranda rights.

So by the end of the period - and this is continued through the Rehnquist Court and into today in the Burger Court - the Miranda decision itself is sort of a tattered remnant of what, I think, it was in the minds of the Warren Court justices who came up with that way of protecting the criminal suspect's rights against compelled self-incrimination.

GROSS: If you're just joining us, my guest is Linda Greenhouse, co-author of the new book, "The Burger Court And The Rise Of The Judicial Right." She covered the Supreme Court for The New York Times for nearly 30 years. Let's take a short break, then we'll talk more. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Linda Greenhouse, co-author of the new book "The Burger Court And The Rise Of The Judicial Right." And Chief Justice Burger was appointed by Richard Nixon. He resigned from the court in 1986. And Linda Greenhouse was The New York Times Supreme Court correspondent for nearly 30 years and now writes a biweekly column for The Times website. She teaches at Yale Law School.

So in continuing with the theme of the Burger Court and race and ethnicity, let's look at affirmative action. What did the Burger Court have to say about affirmative action, and how does that relate to the affirmative action case that came before the Supreme Court this term?

GREENHOUSE: It's really quite an amazing and surprising story, Terry. So in 1978, the Burger Court was faced with a challenge to affirmative action in higher education admissions. This was a medical - a state medical school in California. The University of California, Davis had a - set aside an actual quota for non-white applicants to the medical school. This was challenged by a man named Allan Bakke. The court was very divided - four on one side, four on the other side. In the middle was Justice Lewis Powell, one of the most important and influential members of the Burger Court. And he embraced the notion that diversity is the watchword in university admissions.

If a university feels that its interests and more generally society's interests are served by having a diverse class, you can't have a quota but you can take race into account in the admissions program. This kind of settled the waters for a few years. But there was a lot of turmoil, a lot of political pushback, brought us a challenge to affirmative action at the University of Michigan in the Rehnquist Court. It was narrowly upheld there. And the University of Texas affirmative action admissions system was challenged multiple times, reached the Supreme Court this past term for the second time.

Most people - myself included - expected some kind of whack to be taken out of affirmative action by the current Supreme Court. But quite surprisingly, in an opinion by Justice Anthony Kennedy, the court upheld the University of Texas system, citing the Bakke case, citing the Bakke rationale for diversity. And so kind of amazingly a generation later that's where things still stand.

GROSS: One of the things that makes this year's decision interesting is that Scalia, who most certainly would have voted against the University of Texas program, he died before the decision was handed down. And Elena Kagan had to recuse herself 'cause she was solicitor general when as - when the case was making its way up through the courts. And Kennedy was the swing vote, so you didn't expect him to go the way he did?

GREENHOUSE: No, based on his earlier dissenting opinion, for instance, in the Michigan case back in 2003 and his opinion in the earlier round of this University of Texas case where he wrote a majority opinion that vacated the lower court opinion that upheld the Texas plan. You know, I think people figured, well, it's not exactly clear how far the court's going to go, but it's not going to accept the plan that it first cast very strong doubts about.

I might point out that had Justice Scalia been alive to vote the other way, it would have been a 4-4 tie because, as you mention, Elena Kagan was recused. So only - when Scalia was alive, only eight justices would have been sitting on the case. If they were sitting on the case when the case was argued back in the winter before Justice Scalia died, that 4-4 tie would have automatically affirmed the lower court, the Fifth Circuit, which actually had upheld the plan.

So in a way, Justice Scalia's death didn't change the outcome, but it enabled Justice Kennedy to write a pretty strong opinion embracing the notion of diversity and upholding this very long-challenged plan in Texas.

GROSS: So one of the Roberts Court's most momentous decisions is Citizens United, which basically said that corporations have First Amendment rights like people do and that they can spend unlimited amount of money in political campaigns because money is the equivalent of speech. You say the precedent for that goes to the Burger Court. And in fact, the Citizens United decision quotes a decision from the Burger Court. What was that decision?

GREENHOUSE: So this was a case in the late 1970s called Bellotti against First National Bank of Boston. And this was the first time that the court had said, yes, corporations have a First Amendment right to spend money in politics. Now, as - it was a far cry from what eventually became Citizens United. But in 2010, when the Roberts Court came down with Citizens United and people were shocked at the notion that the First Amendment enabled corporations to spend money in politics, this was really not new. It was - it was new in the context in which Citizens United put it.

I don't want to say that there was anything inevitable about the old case, the Bank of Boston case, that led inevitably to Citizens United, which was a 5-4 very closely fought opinion. But the framework, the First Amendment framework, was established in the Burger Court along with this sort of empowered First Amendment that sustains commercial speech, advertising of various kinds that we're inundated with today.

GROSS: Right 'cause advertising counted as free speech in a Burger Court decision.

GREENHOUSE: Yes. I mean, before the Burger court, advertising - that is to say speech that does nothing more than propose a commercial transaction - that's the kind of jargon for that - was not deemed to have any First Amendment protection. And the Burger court changed that.

It's very interesting that the one justice who dissented from the real - the first real initiative of the Burger court in this area was William Rehnquist, very conservative then associate justice who then succeeded Chief Justice Burger as chief justice. He saw around the corner, and he said, you know, if we give First Amendment rights to advertisers, if we bring commercial speech within the First Amendment, who knows where that's going to lead? And where it's led in the Roberts court is really an empowered First Amendment that has been, one might say - I have said - hijacked as a tool of deregulation in the power that it gives to corporations. So it's a pretty interesting trajectory.

GROSS: You describe the Burger court as very pro-business. And perhaps the most pro-business member of the court was Nixon appointee Lewis Powell. And just a couple of months before he was appointed to the Supreme Court, he sent a memo - a now famous memo - to the U.S. Chamber of Commerce. And this memo was commissioned - he was commissioned to write this by the chamber's education director. The memo was titled "Attack On The American Free Enterprise System." What are some of the most important parts of that memo?

GREENHOUSE: So Lewis Powell, who had never been a judge - he was a big-time lawyer in Richmond, Va., he'd been president of the American Bar Association, in his law practice represented a big swath of corporate America - wrote a memo that said, you know, businesses have basically ceded the ground to the liberals. We have the American Civil Liberties Union bringing all kinds of lawsuits. We have the civil rights community bringing all kinds of lawsuits. Who's speaking up in court for business? And you - the Chamber of Commerce - you have an obligation to start building some infrastructure from which corporate America can be defended, can defend its own interests in the courts.

And the Chamber took his advice and built up something called the National Chamber Litigation Center to sort of aggregate legal talent in bringing cases and defending cases. A few months after that, as you said, Richard Nixon appointed Lewis Powell to the Supreme Court.

GROSS: And in that memo, Powell wrote that the judiciary may be the most important instrument for social, economic and political change, and then he became a Supreme Court justice. So did he use his power in a very pro-business way?

GREENHOUSE: Well, of course, his power only resided in getting four people to agree with him. That's the interesting thing about the Supreme Court. But he commanded a lot of respect within the court. Yes, I think it's fair to say - I want to be fair to Lewis Powell, who I have a good deal of regard for - but he really did have a vision that the country would be better off if business had a voice in public affairs within the courts and could spend money accordingly. And he was able to persuade his colleagues - not in every case, but - to go along with him.

GROSS: You know, the Burger court had the type of split that we're seeing today in the Supreme Court. Burger was - I guess you would have called it then a constructionist. He believed in interpreting the Constitution as closely to the interpretation of the Founders as possible.

You quote excerpts of a speech that Burger gate in 1976 during the bicentennial and an excerpt of a speech that Thurgood Marshall, the first African-American Supreme Court justice, gave that same day. Burger said, 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.

Thurgood Marshall says, the focus of the celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the more perfect union it is that we now enjoy. Then he described how the government framers devised a constitution defective from the start, requiring several amendments, a civil war and momentous social transformation. Those quotes seem so relevant today.

GREENHOUSE: Totally. And those quotes define two ways of looking at the Constitution, at American history, at the role of the courts. You know, the kind of really self-satisfied, almost platitudinous remarks that Warren Burger, who by then had retired from the court - Thurgood Marshall was still on the court - his remarks in Philadelphia - and Thurgood Marshall just reminding us that it took us a battle to get to where we are, and we've got to keep fighting that battle.

GROSS: My guest is Linda Greenhouse. She co-wrote the new book "The Burger Court And The Rise Of The Judicial Right." After a break, we'll talk about today's Supreme Court after the death of Justice Scalia and how the next president might influence the future direction of the court. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross, back with Linda Greenhouse. She co-wrote a new book about how the Supreme Court under Chief Justice Warren Burger moved the court to the right, establishing the conservative legal foundation for the more conservative courts that followed. Burger was appointed by President Nixon in 1969 and served as chief justice until 1986. Greenhouse's book is called "The Burger Court And The Rise Of The Judicial Right." She covered the Supreme Court for The New York Times for nearly 30 years.

Now, your book is about how the Burger court pushed the Supreme Court to the right - and thereby pushing the country to the right. But it was the Burger court that legalized abortion. So that doesn't really fit with the narrative.

GREENHOUSE: That's right. But I will explain. What we mean by that is that yes, of course, Roe against Wade was a Burger court decision in 1973. The vote in Roe was 7-2. Three of Nixon's four appointees, all except Justice Rehnquist, joined in that 7-2 majority, including Chief Justice Burger.

So what does that tell us? It tells us that the political polarity around abortion had not yet emerged. The members of the Burger court - all men in those days - in 1973 - really were channeling the view that was very widely held, at least based on the Gallup poll that came down a few months before the Roe decision came down.

Every demographic group in the country believed that it was time to change the old 19th century regime of criminal abortion laws - the public health community, even a majority of Catholics and a strong majority of Republicans. So in announcing the right to abortion in Roe against Wade, the Burger court really didn't think it was doing anything particularly radical.

I'm totally convinced of that. Of course, the next case that comes down - next big case that faces them is - OK, the federal government, through Medicaid, pays for medical services - many medical services - for poor women. Does it have to also pay for abortions for women who can't afford them?

An enactment called the Hyde Amendment had come into Congress. That may be familiar to listeners because it's still the law today. We still have the Hyde Amendment that forbids the federal government from spending money to subsidize abortions for poor women. So there was a challenge, of course, to the Hyde Amendment. And the case was assigned to Justice Potter Stewart.

We haven't mentioned him yet, but he was a stalwart member of the Burger court. He'd been appointed by President Eisenhower. The vote is 5-4. It comes to Justice Stewart. And he writes an opinion that says, you know, the fact that women - some women - don't have the money to pay for abortions and thereby can't get an abortion is not the fault of the government. It's just the fault of their - as he put it, their indigency.

And the Constitution really has nothing to say about that. The Constitution - the government didn't create the problem. And the government is under no obligation to solve the problem. And that really - what we say in that chapter is - that was the Burger court's Constitution in the raw. There's - there was a right.

But there was no obligation to enable people to claim their right - to effect the right. And that's why I think it's fair to say that the entire handling of the abortion issue is really - instead of being sort of outside the narrative of the Burger court - was really essentially a part of it.

GROSS: As part of your research for your new book, you read justice's papers. What kind of insights do you get from reading papers? And what papers do you have access to?

GREENHOUSE: So I'll just say, I mean, it's enormous fun. It's like reading other people's mail. And it's very addictive. So there are archives of the - some justice's papers - unfortunately, not all of them - and some of them not terrifically accessible. Warren Burger's own papers are not open to the public. They remain closed until 2026, 10 years from now, at the College of William and Mary.

But Justice Harry Blackmun's papers are open at the Library of Congress. And he was a total pack rat. He saved everything. And Lewis Powell also was quite a pack rat. And he gave his papers to his alma mater, Washington and Lee in Virginia, which has a wonderful library and has been nice enough to digitize most of his files.

And they're up online through the Washington and Lee website. So I would urge anybody who's curious to go on that website and just pick a favorite case during the time that Justice Powell was on the court in the 1970s up until 1987. And take a look at his files, his notes to himself, his editing of drafts, his responses to other justice's drafts.

So that's a great set of papers. And then we also had Potter Stewart's papers, which, very conveniently, are at the Yale - the main Yale library, which is right across the street from Yale Law School, where my office is. And so that was an easy few dozen steps to have access to Potter Stewart's papers. So those were the basic archives that we used.

GROSS: Tell us something fascinating you learned by reading former justice's papers.

GREENHOUSE: Well, one thing that we were discussing a little while ago on the abortion question - what about the government's obligation to pay for abortions for poor women? So that case was assigned to Potter Stewart. And we see in his case file in that case - case called Harris against McRae - he's writing out - he's working on his opinion rejecting the notion that the government has any obligation.

And he has a law clerk who is obviously very uncomfortable with this outcome. But of course, the law clerk is working for his justice. He's not going to change the justice's mind.

So he tries to insert a couple of paragraphs - just a kind of expression of empathy for the plight of a woman who needs an abortion and can't afford one - and just saying it's really too bad that the government has taken this position in the Hyde Amendment. But we're just sorry to say - we wish it were otherwise - but we're just sorry to say that the Constitution has nothing to do about that.

And in Potter Stewart's file, there's this draft by the law clerk inserted into a draft of the opinion over which Potter Stewart has placed a large X. And that, of course, never appears in the opinion. When I found that, sort of the hair on the back of my neck stood up.

GROSS: If you're just joining us, my guest is Linda Greenhouse. She's the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." Let's take a short break, and we'll talk some more. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Linda Greenhouse. She's the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." She covered the Supreme Court for The New York Times for nearly 30 years. She now writes a bi-weekly column for The Times website, and she teaches at Yale Law School.

So let's look at the Supreme Court without Justice Scalia. He died in February. What role has Chief Justice Roberts taken in this new 4-4 court, with four liberals and four conservatives?

GREENHOUSE: Right. I mean, certainly Justice Scalia's departure created a new dynamic on the court. So one example is a case that was argued before he died, a case called Friedrichs against California Teachers Association. And that was a challenge to the ability of public employee unions to collect dues - a portion of dues from members who don't want to join the union and object to the union but can be assessed under longstanding Supreme Court precedent for that portion of the dues that goes to represent them in collective bargaining.

And people who don't like unions hate this doctrine - cobbled up a case challenging it, brought it to the Supreme Court. The court agreed to hear it. The court heard it. And it was clear from the argument as well as from the fact that the court took this case in the first place that there was going to be a 5-to-4 decision to overturn the longstanding precedent and basically cut the financial legs out from under public employee unions.

That was in the works. The case was, as far as anybody can tell, assigned to Justice Sam Alito, who was the kind of leading force behind getting this issue onto the Supreme Court's docket. And he was, one assumes, drafting an opinion to accomplish this. And then Justice Scalia died, and then the vote was 4 to 4. And a 4-to-4 tie affirms the lower court opinion. The lower court, of course, had upheld the old Supreme Court precedent and said unions could collect this money. And that was the end of that.

So that was a very dramatic example of the impact of Justice Scalia's death. I think it kind of cut off the ability to have these conservative agenda items make headway in the current Supreme Court. And in terms of what happens to the court after the election, it's just a - it's a reminder of how much every vote counts and how closely divided the court is on many if not most of the issues that people care the most about.

GROSS: Justice Scalia was an originalist, believing that the Constitution should be interpreted as literally as possible and as close to the Founders' interpretation and intention as possible. And Justice Thomas is also an originalist. Do you think that Justice Thomas's role in the court is changing at all after the death of Justice Scalia?

And I should mention that a contrast between the two of them is Justice Scalia was very outspoken. He was known for writing a lot of decisions. He was famous for his writing, whereas Justice Thomas is known as not speaking on the court. So is Thomas's position changing at all?

GREENHOUSE: Actually no, I don't think so. He does have a view that we need to go back to the beginning in every doctrine, that most of modern constitutional law is illegitimate. He doesn't believe in the role of precedent, which, by the way, Justice Scalia did. Even precedents that he disagreed with, when they were kind of foundational, he would accept them and kind of go on from there.

That is not Justice Thomas's way. And because of that, he's not really a player in the court's decision-making function. Of course, he's got a vote, and everybody's vote is equal. But he will never get an assignment to write for a majority in an important case because his views are so eccentric that even if there's a majority that agrees with him on the bottom line - that is to say affirm the lower court opinion or reverse it - there's not a majority that's going to go for his constitutional analysis. So he's really, you know, off on his own project, and he's taken himself out of - he never was really in the mix of people actually trying to sort out today's questions by invoking the body of precedent that's been built up in the Supreme Court for more than 200 years.

GROSS: What's your take on Congress blocking President Obama's appointment of Judge Merrick Garland?

GREENHOUSE: My personal take as a citizen is that I think it's outrageous. And also, I think it's important to understand that it is completely new. There is no precedent for it. The Republicans somehow cobble up some notion that, you know, this is sort of an everyday occurrence when there's an election pending. That is not true. Of course, the Senate's free to reject any nominee of any president and has done so, you know, consistently over time. But to not even give the nominee a hearing is - just kind of defies belief. So, you know, it seems as if they're getting away with it, but we shall see.

GROSS: So if the next president's only job was to appoint Supreme Court justices, it would still be a very important job. Just in terms of the Supreme Court, what's at stake in this election?

GREENHOUSE: Well, basically, what's at stake in this election is the outcome of most of the constitutional disputes and even statutory disputes that we the public care the most about. It's noted - commonly noted both by you and everybody how closely divided the court is and also commonly noted that there's going to be a couple of vacancies. It's hard to think of a single subject area - whether it's race, crime, it's hard to think of a single subject area whether it's race, crime, women's rights, abortion rights, the rights of businesses, the future of campaign finance, for instance - where the change of a justice or two could make a major change in the outcome. So it's almost hard to exaggerate how important this is.

GROSS: Well, Linda Greenhouse, I want to thank you so much for talking with us.

GREENHOUSE: Thanks for having me, delighted to be here.

GROSS: Linda Greenhouse is the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." After we take a short break, a new comic adventure podcast for kids - "The Radio Adventures Of Eleanor Amplified." This is FRESH AIR.

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GROSS: This is FRESH AIR.

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