The Burger Court: Bad, But Not That Bad
Farber, Dan
THE BURGER COURT: BAD, BUT NOT THAT BAD by Dan Farber W hen Warren Burger became chief justice, Richard Nixon was president and the United States was bogged down in the Vietnam war. Earl...
...This provision was cited by the Supreme Court as evidence that Congress approved of restrictions on foreign travel...
...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...
...This is an odd distinction, as Neuborne points out...
...Earl Warren, the prior chief justice, was the darling of liberals and anathema to conservatives...
...The Court said that 1978 legislation provided "weighty evidence" that Congress approved of the president's power to withdraw passports to protect national security...
...For example, when the government gives money to religious groups, the Warren Court held that taxpayers have standing to seek an injunction...
...Burger was an imposing white-maned fellow who seemed more qualified by appearance than intellect for the job...
...Indeed, some of those flaws paved the way for the Burger Court...
...By simply assuming the validity of his own policy judgments, Rosenberg avoids the difficult issues that perplexed the Court...
...He contends that until recently the Court generally did not defer to national security claims when constitutional rights were involved...
...These two essays illustrate two flaws that are common 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...
...No doubt the authors felt it less necessary to discuss these issues because their original audience (the readers of The Nation) shared their views...
...One of the basic problems the Supreme Court must consider is which questions to decide and which to leave to elected officials...
...Still another problem in many of these criticisms of the Burger Court can be seen in Norman Rosenberg's essay on mental disability cases...
...According to Neuborne, the roots of the Burger Court'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...
...THE BURGER COURT: BAD, BUT NOT THAT BAD by Dan Farber W hen Warren Burger became chief justice, Richard Nixon was president and the United States was bogged down in the Vietnam war...
...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...
...I think the Burger Court tended to overestimate these costs and unduly restricted access...
...The Warren Court's achievements were admirable enough that we should not feel the need to conceal its flaws...
...Three essays in particular illustrate the book's major strengths and weaknesses...
...This book*, a collection of 15 essays, is one of the first attempts to assess the Burger Court...
...Yet the legislative history unequivocally demonstrates that Congress intended to broaden freedom of travel...
...By the time Burger left the Court, Vietnam was almost forgotten and the Reagan presidency had begun to make liberals a little nostalgic for Nixon...
...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...
...And the Warren Court itself was hardly consistent in its liberalism...
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...titrust...
...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...
...As a piece of legal writing, the Court's opinion is dishonest, if not incompetent...
...Meanwhile, the Supreme Court had written many thousands of pages on everything from abortion to securities fraud...
...Like Rosenberg, many of the authors assume that standard planks in the traditional liberal platform are good social policy...
...To the extent that a given policy seems obviously correct, the argument for a judicial resolution gains strength...
...Today, some of these liberal planks may remain attractive, but it is harder to take them as articles of faith...
...Yet the Warren Court opinion itself distinguished grants of cash from other government actions, thus practically inviting the later decision...
...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...
...Marshall based the Court's power on the need, in deciding individual cases, to apply all available legal rules, including the Constitution...
...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...
...Also, given the role that precedent plays in the judicial system, judicial intervention tends to reduce future flexibility...
...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...
...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...
...In fact, the Haig opinion (written by Burger himself) is even worse than Halperin indicates...
...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...
...Although the Warren Court made impressive contributions to constitutional law, its flaws cannot be ignored...
...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...
...The essays grew out of a symposium in The Nation...
...Reasonable people can differ about how important these costs are and how much they should affect access to the federal court...
...If federal judicial review lacked any harmful side effects, no one could sensibly oppose Neuborne's program of making it as widely available as possible...
...If Neuborne's essay slights the Burger Court's positions, Morton Halperin's criticisms of its opinions on national security issues are wellfounded...
...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...
...In style, they range from the journalistic to the dryly academic...
...Halperin convincingly suggests that the Court ignored its own precedents limiting presidential power to withhold passports, as well as a congressional statute reinforcing the right to travel...
...They deal with a variety of subjects, from libel to anDan Farber teaches constitutional law at the University of Minnesota and is co-editor of Constitutional Commentary...
...Neuborne's criticisms of individual cases are often cogent...
...Nevertheless, the sad truth is that the Burger Court's record on national security is no worse than the historical average...
...Although Burger is no genius, there is little evidence that Warren was any more intelligent...
...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...
...The Warren decisions that later were most undermined tended to be those that the Warren Court had done the poorest job of justifying...
...Yet the case against mental institutions seems less obvious than it once did, as yesterday's inmates have become today's homeless...
...It is his larger thesis that is troublesome...
...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...
...The Warren Court loosened many of the traditional doctrines limiting civil rights suits in federal court...
...Perhaps he is right...
...This is, unfortunately, false...
...When it came time to put articles into book form, however, some expanded discussion of the issues should have been in order...
...The subject in the essay by former ACLU director and current New York University law professor, Burt Neuborne, is access to the federal courts...
...The space constraints of magazine writing also sometimes discourage balanced reflection...
...Not surprisingly, the authors share a stalwart commitment to liberalism and take a dim view of the Burger Court...
...The reason...
...Just because judicial review is a Good Thing, more judicial review is not always better...
...Although Halperin is on solid ground in criticizing the Court's role in national security cases, he is wrong to place special blame on the Burger Court...
...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...
...What did they add up to...
...For example, although the statute says that a passport is required for foreign travel, it provides no penalty for traveling without a passport...
...Warren's devotion to civil liberties vanished when dealing with sexually explicit material he considered unsuitable for his daughters' reading...
...The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986...
...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...
...The level of legal craftmanship on the Warren Court was unimpressive and sometimes embarrassing...
...But judicial review has its costs...
...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...
...These causes should not necessarily be abandoned, but their merits should be argued rather than simply postulated...
...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...
...The Burger Court held that taxpayers do not have standing when the government gives away property rather than cash...
...What did the Burger Court contribute to the law...
...Herbert Schwartz, ed...
Vol. 19 • May 1987 • No. 4
