The Burger years: rights and wrongs in the Supreme Court, 1969-1986.

The Burger Years: Rights and Wrongs in the Supereme Court, 1969-1986

When Warren Burger became chiefjustice, Richard Nixon was president and the United States was bogged down in the Vietnam war. Earl Warren, the prior chief justice, was the darling of liberals and anathema to conservatives. Burger was an imposing white-maned fellow who seemed more qualified by appearance than intellect for the job.

By the time Burger left the Court, Vietnam wasalmost forgotten and the Reagan presidency had begun to make liberals a little nostalgic for Nixon. Meanwhile, the Supreme Court had written many thousands of pages on everything from abortion to securities fraud. What did they add up to? What did the Burger Court contribute to the law?

This book*, a collection of 15 essays, is oneof the first attempts to assess the Burger Court. The essays grew out of a symposium in The Nation. Not surprisingly, the authors share a stalwart commitment to liberalism and take a dim view of the Burger Court. In style, they range from the journalistic to the dryly academic. They deal with a variety of subjects, from libel to antitrust. Three essays in particular illustrate the book's major strengths and weaknesses.

* The Burger Years: Rights and Wrongs in the Supreme Court,1969-1986. Herbert Schwartz, ed. Viking, $22.95.

The subject in the essay by former ACLU directorand current New York University law professor, Burt Neuborne, is access to the federal courts. The Warren Court loosened many of the traditional doctrines limiting civil rights suits in federal court. It is no news, as Neuborne suggests, that the Burger Court was markedly less enthusiastic about opening the courthouse doors, or that the Burger Court's holdings on this subject were more than a little muddled and inconsistent. Neuborne's criticisms of individual cases are often cogent. It is his larger thesis that is troublesome.

According to Neuborne, the roots of the BurgerCourt's confusion lie in the famous case of Marbury v. Madison, in which Chief Justice John Marshall declared the Court's power to overturn congressional enactments. Marshall based the Court's power on the need, in deciding individual cases, to apply all available legal rules, including the Constitution. Thus, for Marshall, the power to rule on constitutional issues derived from a court's general duty to construe the law in the course of deciding individual cases. Neuborne argues, however, that cases are simply convenient vehicles for carrying out the Court's real function--which is to resolve disputes whenever a significant disagreement about the meaning of the Constitution affects people's lives.

If federal judicial review lacked any harmfulside effects, no one could sensibly oppose Neuborne's program of making it as widely available as possible. But judicial review has its costs. Whenever the Supreme Court upholds a constitutional claim, it is withdrawing that issue from the state courts and legislatures, as well as Congress and the president. Also, given the role that precedent plays in the judicial system, judicial intervention tends to reduce future flexibility. Just because judicial review is a Good Thing, more judicial review is not always better.

Reasonable people can differ about how importantthese costs are and how much they should affect access to the federal court. I think the Burger Court tended to overestimate these costs and unduly restricted access. If the Court went wrong, however, it is not just because, as Professor Neuborne would have it, they were misled by their reading of Marbury v. Madison. Like many a lawyer's brief, Professor Neuborne's argument is highly persuasive--until you read the opposing brief, or in this case the Burger Court's opinions, and realize that none of the opponent's best arguments has even been addressed.

If Neuborne's essay slights the Burger Court'spositions, Morton Halperin's criticisms of its opinions on national security issues are well-founded. Not only was the Burger Court very deferential to presidential invocations of national security, many of the Court's opinions, Halperin points out, are disturbingly shoddy. In Haig v. Agee the Court upheld the government's power to cancel the passport of a renegade CIA agent who had been writing books containing damaging disclosures about the agency. Halperin convincingly suggests that the Court ignored its own precedents limiting presidential power to withhold passorts, as well as a congressional statute reinforcing the right to travel.

In fact, the Haig opinion (written by Burgerhimself) is even worse than Halperin indicates. The Court said that 1978 legislation provided "weighty evidence' that Congress approved of the president's power to withdraw passports to protect national security. Yet the legislative history unequivocally demonstrates that Congress intended to broaden freedom of travel. For example, although the statute says that a passport is required for foreign travel, it provides no penalty for traveling without a passport. The reason? The sponsor said the provision was intended simply to remind people that because many foreign countries require passports, they might be inconvenienced if they fail to bring them along. This provision was cited by the Supreme Court as evidence that Congress approved of restrictions on foreign travel. As a piece of legal writing, the Court's opinion is dishonest, if not incompetent.

Although Halperin is on solid ground incriticizing the Court's role in national security cases, he is wrong to place special blame on the Burger Court. He contends that until recently the Court generally did not defer to national security claims when constitutional rights were involved. This is, unfortunately, false. In World War I, World War II, and Vietnam, the Court was quite willing to brush aside constitutional claims in order to further the war effort. It was Earl Warren, after all, who wrote the opinion upholding a five-year sentence for draft card burning, even though the legislative history showed unmistakably that the statute was an attempt to punish political protestors. On the whole, the Warren Court's record was a little better than its predecessors, particularly with regard to bogus national security claims at the end of the McCarthy period. Nevertheless, the sad truth is that the Burger Court's record on national security is no worse than the historical average.

These two essays illustrate two flaws that arecommon in many of the other pieces: dismissing Burger Court positions without attending to the Court's arguments and exaggerating the virtues of the Warren Court to make the Burger Court look worse. Although the Warren Court made impressive contributions to constitutional law, its flaws cannot be ignored. The level of legal craftmanship on the Warren Court was unimpressive and sometimes embarrassing. Although Burger is no genius, there is little evidence that Warren was any more intelligent. And the Warren Court itself was hardly consistent in its liberalism. Warren's devotion to civil liberties vanished when dealing with sexually explicit material he considered unsuitable for his daughters' reading. The Warren Court's achievements were admirable enough that we should not feel the need to conceal its flaws.

Indeed, some of those flaws paved the way forthe Burger Court. The Warren decisions that later were most undermined tended to be those that the Warren Court had done the poorest job of justifying. For example, when the government gives money to religious groups, the Warren Court held that taxpayers have standing to seek an injunction. The Burger Court held that taxpayers do not have standing when the government gives away property rather than cash. This is an odd distinction, as Neuborne points out. Yet the Warren Court opinion itself distinguished grants of cash from other government actions, thus practically inviting the later decision.

Still another problem in many of thesecriticisms of the Burger Court can be seen in Norman Rosenberg's essay on mental disability cases. Rosenberg assumes that institutionalization is an indefensible decision, that psychiatrists are biased in favor of institutionalizing, and that courts need to intervene to keep people out of institutions.

Perhaps he is right. Yet the case against mentalinstitutions seems less obvious than it once did, as yesterday's inmates have become today's homeless. And it is far from clear that the elderly lawyers who become judges are better qualified than psychiatrists to make decisions about the mentally disabled. By simply assuming the validity of his own policy judgments, Rosenberg avoids the difficult issues that perplexed the Court.

One of the basic problems the Supreme Courtmust consider is which questions to decide and which to leave to elected officials. To the extent that a given policy seems obviously correct, the argument for a judicial resolution gains strength. Like Rosenberg, many of the authors assume that standard planks in the traditional liberal platform are good social policy. Given this, the only question is whether the Court should allow key issues to be bungled by a wrong-headed elected body-- and once you phrase the question this way, the answer is never very hard. Today, some of these liberal planks may remain attractive, but it is harder to take them as articles of faith. Plenty of liberals have serious doubts about affirmative action, the impact of labor unions on the economy, the desirability of legalizing pornography, and so on. These causes should not necessarily be abandoned, but their merits should be argued rather than simply postulated.

No doubt the authors felt it less necessary todiscuss these issues because their original audience (the readers of The Nation) shared their views. The space constraints of magazine writing also sometimes discourage balanced reflection. When it came time to put articles into book form, however, some expanded discussion of the issues should have been in order. Unfortunately, as some of these essays illustrate, some liberals still have an unhappy tendency to assume that it is sufficient to proclaim liberal views without having to reflect on them.