THE BURGER COURT: COUNTER-REVOLUTION OR CONFIRMATION? by Bernard Schwartz (Editor). New York: Oxford University Press, 1998. 316 pages. Cloth $49.95. ISBN 0-19-512259-3.

Reviewed by Richard Pacelle, Department of Political Science, University of Missouri-St. Louis. E-mail: pacelle@umsl.edu.

This book, edited by the late Bernard Schwartz and finished days before his death, is an eclectic collection of 21 essays gathered from a conference at the University of Tulsa School of Law assessing the role and impact of the Burger Court. The contributors include law professors from every ideological stripe, federal and state judges (as well as one from Norway), prominent journalists, the president of the American Bar Association, a well-known litigator, and Justice William Brennan. As a consequence, the essays vary in tone and perspective.

Chief Justice Warren Burger and the Burger Court occupy curious niches in the Supreme Court history. Certainly, the general tenor of the evaluations of the Chief Justice and his Court are that he was not a great leader and he did not preside over a full-scale retreat from the Warren Court's jurisprudence. It has been a curse of the Burger Court's legacy that it cannot be isolated and considered on its own merits. Rather, the Burger Court is always considered in a comparative perspective. The subtitle of this book "Counter-Revolution or Confirmation?" sums up the typical grounds for evaluation. This has been a fate that the Burger Court has endured since the premature volume edited by Vincent Blasi that asked whether the Burger Court had wrought a "Constitutional Counter-Revolution" as its membership was taking shape. The Blasi volume set the agenda for later studies of the Burger Court. In many ways, the articles and books that followed viewed the Burger Court as a continuation of its predecessor.

Most of the essays in this volume adopt the prevailing view that the Burger Court was much closer to the confirmation end of the spectrum than the counterrevolution end. While this book and the essays break little new ground on that question, many of the essays do provide a different perspective. What makes these essays different however is that they are being written one decade into the Rehnquist Court. That perspective obviously affects most of the authors, just as the authors who contributed to the Blasi volume were influenced by the Warren Court.

Only a handful of the authors directly address the question: Was the Burger Court a Counter-Revolution? But perhaps the better question would be whether the Burger Court was responsible for altering the dynamics and providing the momentum for the substantive retreats and the changes in procedure that have marked the Rehnquist Court.

After a few introductory essays, the book is divided into two sections. In Section I, nine essays are devoted to substantive issue areas, such as race, gender, reproductive rights, First Amendment freedoms of speech, press, and religion, criminal justice, economic rights, and federalism. The essays in Section II, which is entitled "A Broader Perspective" for lack of a better term, run a full range of topics and scope.

The essay by Judge Robert Henry of the Tenth Circuit, entitled "The Players and the Play," sets a context for the volume. Henry discusses some of the key actors and some prominent issue areas. The essay, although unfocused and rambling in places, makes an important contribution with an extended discussion of the activism of the Burger Court. The justices appointed by Richard Nixon and Ronald Reagan were supposed to be judicial restraintists who would reverse the activist trends of the Warren Court. Judge Henry poses the question whether activism is here to stay. He notes that many justices and judges pay homage to the ideals that John Marshall Harlan extolled regarding judicial restraint, but few are willing to exercise restraint.

The essays in Section I are standard doctrinal analyses that do not break much new theoretical ground, but a number serve the purpose of making the implicit argument that the Burger Court went beyond the advances of the Warren Court. In gender discrimination, as Chief Judge Stephanie Seymour points out: there was no previous revolution to counter or confirm. David Garrow makes essentially the same point in the area of privacy. He discusses privacy by juxtaposing pro-privacy Roe v. Wade with the decidedly negative Bowers v. Hardwick decision. He argues, somewhat optimistically, that the Rehnquist Court has vindicated the former and will vitiate the latter.

Schwartz himself wrote an essay on freedom of speech that largely focuses on commercial speech, symbolic speech, and questions of speech in public fora, areas the Burger Court either created or was largely responsible for developing. As free speech issues, the mix of cases confronting the Burger Court was more difficult than those facing the Warren Court. The picture Anthony Lewis presents in his essay on freedom of press is one of drift. The Burger Court's decisions either reinforced previous precedents or retreated in libel cases. In either instance, the decisions did not establish clear guidelines or create any noteworthy precedents. That could be a function of the difficulty of the cases and the divisions on the Court.

A number of the articles in this section raise the question of the dominant paradigm of the time. Schwartz argues that although Burger considered the double standard of Footnote Four (of the United States v. Carolene Products decision) a false dichotomy and that civil liberties and economic cases should be evaluated by the same standards, the Burger Court could never reject the proposition that civil liberties should be held in a preferred position. It is clear that the Rehnquist Court has rejected the preferred position doctrine and the Burger Court played no small role in preparing for that transition.

The preferred position of civil liberties extends from the Court's agenda to protection to the way analysts cover the Warren and Burger Courts. Economic issues are seldom constitutional or path breaking, so coverage of them pales. Professor Lino Graglia, in his essay "Economic Rights," argues that in antitrust law the Burger Court was truly revolutionary, deviating from the Warren Court's approach to the issue. While Graglia discusses the transformation in the Contracts Clause and the Takings Clause, he largely ignores the implications of how decisions in those areas, particularly the latter, paved the way for significant lawmaking by the Rehnquist Court.

The conventional wisdom notes that there is one other area of law in which the Burger Court presided over a significant retreat: criminal procedure. Interestingly, the essay in this volume by Professor Martin Belsky, a former prosecutor, has a different perspective. Belsky argues that the Burger Court created the expectation of a counter-revolution, but failed to deliver. Still, the Burger Court created a much better environment for police and prosecutors than its predecessor. The essay, largely an impact analysis that examines the effects of the Burger Court decisions rather than doctrine, would be better suited for the last section of the book: "A Broader Perspective."

Section II is a combination of disparate essays that examine the role and the legacy of the Burger Court. In this section, a number of the essays raise perspectives that are different from the standard analyses of the Burger Court.

Jerome Shestack of the ABA examines Burger's role in leading the legal profession. Tony Mauro provides a journalist's perspective on the Burger Court, while Alan Morrison offers "A Public Interest Lawyer's Perspective." Morrison's assessment on the Burger Court's impact on public interest law is consistent with the other authors of this volume. The Burger Court had backed away from the Warren Court's liberal view of standing, class action suits, attorneys' fees, and other barriers to legal representation, to be sure. But Morrison maintains that the damage was not as severe as might have been predicted as the Burger Court emerged.

Justice Stewart Pollack of the New Jersey Supreme Court examines one of the most important developments that occurred during the Burger Court, the relationship between the Supreme Court and state constitutional law. As part of the unintended consequences of Michigan v. Long and United States v. Leon, the Court found itself helping to create a New Judicial Federalism. Justice Pollack uses the metaphor of a chess game with Burger and Brennan as the players. They had different reasons for playing the New Federalism game: Burger from design, Brennan out of necessity. Burger wanted to give states greater authority, while Brennan felt that the state constitution might be the last bastion of protection for civil liberties.

In a broad ranging essay, Professor Mark Tushnet explores a variety of issues explaining the activism of the Warren Court, the New Deal coalition, how the Democrats lost the White House, race as an issue, the pragmatism of the Burger Court, and the sheer failure of Burger's leadership, a theme that Schwartz carries in his essay "The Burger Court in Action."

Schwartz revisits the issue of the Burger Court's activism, a "rootless activism" according to the author. He quotes Rehnquist as claiming that the Burger Court lacked a sense of mission. Leadership is conditional and Burger was, for better or worse, appointed to serve at a time when the Court had a great deal of division. Maybe no Chief Justice could have marshaled a Court under these circumstances. Rehnquist's leadership skills seemed to improve after Brennan and Thurgood Marshall were replaced by David Souter and Clarence Thomas.

The Burger Court faced a number of second-generation issues, many of which were more difficult than those facing the Warren Court. Despite that, the Burger Court did not retreat in many areas. Still, the game was played on turf established by the Warren Court and its predecessors. Maybe the ultimate legacy of the Burger Court is that it was able to inch doctrine and later the scope of debate so that the Rehnquist Court could establish a new formula and fulfill some of the designs of Warren Burger. If so, it may be that we cannot determine the true legacy of the Burger Court until the Rehnquist Court has run its course.

Vincent Blasi, ed. The Burger Court: The COUNTER-REVOLUTION That Wasn't (New Haven: Yale University Press, 1983).

Copyright 1995