Vol. 1, No. 7 (September, 1991), pp. 93-95

THE BURGER COURT: POLITICAL AND JUDICIAL PROFILES by Charles M. Lamb and Stephen C. Halpern (Editors). Urbana and Chicago: University of Illinois Press, 1991. 513 pp.

Reviewed by Lawrence Baum, Department of Political Science, Ohio State University

This collection of essays examines the Supreme Court during the period when Warren Burger was chief justice (1969-1986) through analysis of the individual members of the Burger Court. Except for introductory and concluding chapters by the editors, each chapter focuses on the work of one justice who served on the Burger Court. All of those thirteen justices -- including John Marshall Harlan and Hugo Black, whose careers extended only until 1971 -- are included.

Instead of organizing the book in terms of individual justices, the editors might have chosen a chronological or subject-matter organization; each would have its advantages and disadvantages. The editors' introductory chapter offers a justification for their justice-centered approach, and I think it serves the book's purposes well. While the book does not provide a general picture of the policies that the Burger Court adopted in different fields, it does give a good sense of the ways that each justice contributed to the total product of that court.

Like the editors, all of the contributors are political scientists and specialists in the judicial process. Some essays were written by scholars about justices on whom they had carried out extensive research in the past, including Howard Ball on Black, Lamb on Warren Burger, Beverly Cook on Sandra Day O'Connor, and Sue Davis on William Rehnquist. Of course, the justice-centered approach allows the book to take advantage of these authors' expertise on individual justices.

The essays vary somewhat in their form and concerns. But each gives primary attention to analysis of the opinions that the justice wrote in major fields of the Supreme Court's work. This analysis is preceded and followed by more general material about the justice. The essays are largely parallel in their organization but vary somewhat in their coverage on the basis of differences among the justices and in the authors' concerns. This structure is, I think, a strength of the book; it facilitates comparison among justices while allowing authors to emphasize what they saw as most important and interesting about individual justices.

The emphasis on opinion writing rather than on the justices' votes was a good choice, I think. The focus on opinions will serve well those scholars who are interested primarily in the Court's doctrine. But it will also be useful to students of the Court who think about individual justices primarily in terms of their voting patterns, because analyses of the body of written opinions by those justices provide a fresh perspective on their values and their work. In any case, several of the essays make good use of data on voting patterns in conjunction with their analyses of opinions.

The essays are concerned chiefly with description and explanation of the justices' work rather than evaluation. But evaluation is not absent altogether. Several of the essays evidence a preference for the liberal policies of the Warren Court over the departures from those policies that occurred during the time of the Burger Court. This preference was shared by the editors, who refer at one point to "disturbing indications" of a conservative direction in civil liberties by the Rehnquist Court (p. 447). One exception is the essay on Harlan by Wallace Mendelson, who expresses his skepticism about the work of the Warren Court.

The essays deal overwhelmingly with the Court's constitutional and quasi-constitutional decisions. Thus attention is focused chiefly on civil liberties and on the division of powers between levels and branches of government. Little is said about statutory interpretation in non-civil liberties fields such as antitrust, environmental protection, and labor-management relations. This limited focus helps to keep the book's scope manageable, and it comports with the primary interests of most political scientists. Still, it seems unfortunate that such an important segment of the Court's work, and one in which the Burger Court made major policy changes, is largely excluded from consideration. Certainly readers could get a fuller sense of the values and premises from which justices operate with a broader picture of their work.

I think that the essays all do a good job of summarizing and analyzing the work of the justices; this uniformly high quality attests to the editors' good choices of authors and their effectiveness as editors. Readers will get a clear sense of the positions that each justice took in major issue areas and a flavor of the justice's approach to legal interpretation. The authors frequently are very insightful in their discussions of justices' opinions, and several do an impressive job of linking positions on specific questions with a justice's general preferences and philosophy. The book will serve as a good source on the positions that the Burger Court justices took on a wide array of the issues that the Court addressed. The essays on justices who have the least distinctive images may be especially useful in this respect; to take one example, Tinsley Yarbrough's examination of Potter Stewart is a very illuminating one. But readers are likely to learn something new even about such familiar justices as William Brennan (discussed by Stanley Friedelbaum) and William O. Douglas (discussed by Phillip Cooper).

Another contribution of several essays is to provide insights about the forces that influenced the justices' positions on legal issues. The essays typically do not offer systematic explanations for the justices' work on the Court, but frequently they point to elements of justices' backgrounds and experiences that shaped their opinions. Jacob Landynski's essay on Lewis Powell suggests the effects of Powell's service on local and state school boards on his responses to education cases. Yarbrough discusses the impact of Stewart's journalism background on his First Amendment jurisprudence. Daniel Kramer, who interviewed several former law clerks for his essay on Byron White, cites their hypotheses about the impact of White's small-town background and Justice Department experience on his conservatism in criminal justice and of the latter on his support for racial equality.

Several essays make other distinctive contributions to an understanding of individual justices. For example, Cook presents an innovative analysis of the votes of O'Connor and other justices to characterize the values that she supported, and the result is an insightful catalogue of O'Connor's value system as expressed in her positions in cases. Bradley Canon concludes from a close analysis of opinions and votes that John Paul Stevens was a "lone ranger" whose approach limited his influence on colleagues and on the Court's policies. (Rehnquist apparently was a competitor for the title; Davis notes that he displayed a Lone Ranger doll that his law clerks gave to him.) Stephen Wasby makes a careful argument about the sources of Harry Blackmun's shift to the left during his time on the Burger Court.

Individually, the essays provide a sense of doctrinal developments in the Burger Court through the roles of individual justices. William Daniels, for instance, emphasizes Thurgood Marshall's role as a dissenter against the Court's rejection of his positions on issues that he gave a high priority. The editors' two essays address some broader issues concerning the policies and directions of the Burger Court. In the concluding essay, Lamb and Halpern seek to fit the Burger Court into the broad sweep of the Supreme Court's history. Their analysis is a good one; they offer a good deal of insight about the course of the Burger Court.

Two additional features of the book should be noted. The introductory chapter includes a number of tables with summary term-by-term data on the Burger Court, including opinion writing of individual justices, voting blocs, and individual voting patterns in civil liberties and economic cases. The book also provides bibliographies on the Burger Court as a whole and on each of its members. Many students of the Court will find these features very useful.