THE CHIEF JUSTICESHIP OF WARREN BURGER, 1969-1986 by Earl M. Maltz. Columbia: University of South Carolina Press, 2000. 336 pp. Cloth $39.95. ISBN 1-57003-335-8.

Reviewed by Edward V. Heck, Department of Political Science, San Diego State University.

In the latest addition to the Chief Justiceships of the United States Supreme Court series, law professor Earl M. Maltz has produced a well- researched and carefully-written overview of the major decisions of the Burger Court. After an opening chapter introducing the justices who served on the Burger Court, the author presents clear and concise summaries of leading cases in 12 substantive chapters organized topically. Included are chapters on standard topics like federalism, freedom of speech, rights of defendants, the religion clauses, and privacy rights. In addition, Maltz offers an introductory chapter on "the idea of judicial restraint" that discusses such diverse topics as standing, executive power, and the application of the rational basis test in cases like SAN ANTONIO v. RODRIGUEZ (1973) and PLYLER v. DOE (1982), as well as a chapter on "lawyer's law" that provides an overview of key decisions related to civil procedure. From a political scientist's perspective, the outstanding features of the book may be the author's general awareness of the political realities of Supreme Court decision making and his explicit recognition that it is difficult to understand the Burger Court without focusing on the dynamics of the Court's internal political struggles.

The basic story line is that on most issues the Burger Court's internal debates were shaped by a fundamental ideological conflict between liberal Warren Court holdovers and conservative stalwarts Burger and Rehnquist, with a shifting cast of "swing justices," most often Justice Powell, holding the balance of power. The author's summary of the chapter on abortion rights and privacy issues puts the basic point very well: "Taken together, the results in the privacy cases are a microcosm of the internal forces that shaped much of Burger Court decision making: the polar extremes represented by William Rehnquist on the one hand and William Brennan and Thurgood Marshall on the other hand; the gradual leftward drift of Harry Blackmun; and the pivotal role often played by a sometime vacillating Lewis Powell" (p. 261). In support of his emphasis on the importance of individual justices, Maltz provides at the end of each chapter a very helpful table of voting patterns in the cases discussed, with each justice's vote categorized as "constitutional" or "unconstitutional," "legal" or "illegal," or in terms of other relevant categories. In a final conclusion that will not surprise or shock adherents of the attitudinal model, Maltz proclaims that "the experience of the Burger Court clearly supports the view that, in the absence of strong, widely accepted formal constraints on the discretion of the justices, constitutional law becomes little more than the aggregate of the idiosyncratic value judgments of the justices who happen to be serving on the Court at a particular time" (p.

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269). I don't recall that Segal and Spaeth (1993) ever put the point more bluntly.

Side by side with this explicitly political analysis of individual voting patterns, Maltz interweaves an interpretive theme that attempts to place the Burger Court in historical context. In several of the chapters, he argues that the Burger Court not only preserved most of the key liberal precedents of the Warren era, but also moved in a distinctly liberal direction in important areas of constitutional interpretation. Though this argument seems persuasive in such areas as religious freedom, sex discrimination, and abortion rights, it is worth noting that in the chapter on the rights of criminal defendants, Maltz analyzes only a small fraction of the potentially relevant decisions. Nonetheless, he conveys the sense of a court in transition from the Warren era to the Rehnquist Court.

Despite the many strengths of this book, there remains room for gentle criticism on a number of grounds. For starters, as the author himself admits in the preface, the work is certainly not a comprehensive treatment of all Burger Court decisions, an admittedly daunting task that would be beyond the scope of this relatively brief volume. Still, it is fair to ask whether the selection of a limited number of cases for analysis, particularly in the chapter on criminal justice, skews the analysis toward the conclusion that the Burger Court was more liberal than a comprehensive analysis of its decisions on the rights of the accused would suggest. It is also possible that a chronological organization of the chapters, as in the companion volume on the chief justiceship of Edward D. White (Pratt, 1999) would have given a better sense of the changing internal dynamics of the Court than the more conventional topical approach. At the very least, a chronological approach would have allowed a political scientist of the attitudinal school to reorganize the tables of voting patterns into "scales" of votes supporting or opposing liberal outcomes.

Moreover, as we begin the fifteenth term of the Rehnquist Court, it would seem that the time is ripe for a comprehensive account of the internal dynamics of coalition formation in the Burger Court. To his credit Maltz does draw on the papers of Justices Powell, Marshall, Brennan, and Douglas in some chapters and makes good use of secondary accounts of internal politics found in works like Jeffries' (1994) biography of Justice Powell and Schwartz (1990). Indeed, the best chapter in the book overall may be the chapter on race that draws heavily on previously published accounts of the internal politics of the key decisions (Schwartz, 1986; Schwartz, 1988). In fairness, Maltz may have done about all with this material that is appropriate in a work of this length, but there is still a great deal to be learned about the details of how the "pattern of decisions emerging from the Court reflected the shifting coalitions" (p. 3) among the 13 individuals who served on the Burger Court.

Overall, the book offers a sophisticated approach to the Burger Court that echoes important themes in the political science literature and deserves to be read by "law and courts" scholars and their students. In particular the author should be commended for his attentiveness to the political dimensions of Supreme Court policy making and for his careful handling of the justices' debates about standards of review. Also noteworthy is the citation in each chapter of one or more scholarly works treating the subject matter of the chapter in greater detail. Most of what is missing in this book would fall within the scope of the

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conventional call for further research.

REFERENCES:

Jeffries, John C., Jr. 1984. JUSTICE LEWIS F. POWELL, JR. New York: Charles Scriber's Sons.

Pratt, Walter F. 1999. THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE 1910- 1921. Columbia: University of South Carolina Press.

Schwartz, Bernard. 1986. SWANN'S WAY: THE SCHOOL BUSING CASE AND THE SUPREME COURT. New York: Oxford University Press.

. 1988. BEHIND BAKKE: AFFIRMATIVE ACTION AND THE BURGER COURT. New York: New York University Press.

. 1990. THE ASCENT OF PRAGMATISM: THE BURGER COURT IN ACTION. New York: Addison-Wesley.

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

CASE REFERENCES:

PLYLER v. DOE, 457 U.S. 202 (1982).

SAN ANTONIO v. RODRIGUEZ, 411 U.S. 1 (1973).