According to at least two members of the Yale Law School faculty, the Supreme Court of the 1970s does not get the attention it deserves.
Yale Law School lecturer Linda Greenhouse LAW ’78, the Pulitzer Prize-winning former New York Times Supreme Court correspondent, and professor emeritus Michael Graetz shared excerpts from their new book, “The Burger Court and The Rise of the Judicial Right,” with an audience of about 60 community members and students — including many in just their third week of legal study — at the law school Monday evening, stressing that former Chief Justice Warren Burger’s Supreme Court is far more important than people remember it to be.
“[The Burger Court] laid the foundation for many of the cases, principles and societal consequences that we live with today,” Graetz said.
Graetz explained that the book was born out of a frustration with the existing legal scholarship and public commentary on the Supreme Court under Burger, much of which he believes has inaccurately characterized the chief justice’s tenure as an inconsequential transitory period for a once-liberal and soon-to-be conservative court.
However, Graetz noted that he was unwilling to believe that a court that essentially sounded the death knell for the Nixon presidency and adjudicated on matters as important as the legality of homosexuality and affirmative action was but a footnote — and Greenhouse agreed.
“I remember going to Linda’s office one day and saying this can’t be right,” he said. “If the country went through a social and political transformation, the law had to respond. The Supreme Court was not sitting apart from all this on First Avenue paying no attention.”
After this initial meeting, Graetz said, the two began devising a seminar that they taught at the law school for three years, and eventually put their thoughts to paper.
Following Graetz’s opening remarks, Greenhouse highlighted the Burger Court’s formative role in adjudicating matters that have become increasingly contentious over the past few decades, such as a corporation’s right to spend money in politics.
“Citizens United did not fall from the sky without any kind of precedent,” Greenhouse said. Though she acknowledged that the court could have gone in a different direction in the past few decades, Greenhouse added that the contentious majority ruling in the 2010 case of Citizens United v. Federal Elections Commission relied upon a 1978 case decided by the Burger Court as precedent for a corporation’s right to unlimited political spending on behalf of their preferred candidates.
Law school students at the event were impressed by the unique perspective offered by the authors.
Suranjan Sen LAW ’19 thought the argument presented by Greenhouse and Graetz was “illuminating,” adding that it provided him with a “different lens to view legal developments before and after” Burger’s tenure.
According to Nora Niedzielski-Eichner LAW ’18, Greenhouse and Graetz’s argument that the Burger Court “hollowed out” certain constitutional rights by reinterpreting, rather than overruling, prior cases was “incredibly compelling.”
“This was a great way to think about how the Burger Court made such major changes without seeming to,” she said.
Graetz and Greenhouse concluded the evening’s discussion with a few reflections on the direction of the Supreme Court in the next few years, remarking that the court may be on the verge of making its most important decisions regarding capital punishment since the Burger Court — and, depending on the outcome of the upcoming election, might even declare the death penalty unconstitutional.
“It depends on whether Donald Trump will get his four appointments,” Graetz said.