An important volume of essays on Supreme Court decisions since the accession of Warren Burger in 1969--meant to suggest that...


THE BURGER COURT: The Counter-Revolution That Wasn't

An important volume of essays on Supreme Court decisions since the accession of Warren Burger in 1969--meant to suggest that the Burger Court has not undermined the decisions and intentions of the Warren Court. Anthony Lewis' Foreword can also be taken in that light. But it is not clear that all the contributors agree, or should be read as agreeing. Thomas Emerson, a distinguished First Amendment scholar, states that ""the Burger Court has either forgotten or ignored the most fundamental tenet of First Amendment theory, namely, that freedom of expression occupies a special status in our constitutional structure."" Noting that ""mistaken identification has probably been the greatest cause of conviction of the innocent,"" Yale Komisar, an expert on criminal procedure and constitutional law, also voices dismay: ""The Burger Court's performance in the pretrial identification area may well be the saddest chapter in modern American criminal procedure."" In an essay on Poverty Law, Robert Bennett (Northwestern) finds the Burger Court ""rather insensitive to the importance of litigation as a vehicle by which the rule of law is made available to the poor population."" In an essay on Family Law, Robert Burr (Yale) sees the Burger Court's 1973 decision granting women the right to abortion undercut by its subsequent decisions; now, ""poor women and minors are hampered in seeking abortions in ways reminiscent of the disadvantages"" existing prior to 1973. Labor-law expert Theodore St. Antoine notes that ""the Burger Court expressly overruled two of the Warren Court's major prounion decisions and significantly cut back or undermined three others."" Analogous decisions are cited in the areas of Freedom of Speech (by Norman Dorsen and Joel Gora), Race Discrimination (by Paul Brest), and Sex Discrimination (by Ruth Bader Ginsburg). A general essay by Martin Shapiro suggests that moderate and moderating Burger Court decisions reflect the need to deal with more complex issues than existed during the time of the Warren Court: it is easier to bar de jure school segregation, the theory goes, than to deal with affirmative action or ""reverse discrimination""; easier to permit vulgar antiwar expressions to be publicly exhibited than to permit the disclosure of information (sensitive or not) by an ex-government employee. This, to say the least, is debatable. Blast, Lewis, and others may indeed be relieved to find the Burger Court not as bad as anticipated; the evidence here, however, does not quite admit of satisfaction.

Pub Date: Oct. 12, 1983


Page Count: -

Publisher: Yale Univ. Press

Review Posted Online: N/A

Kirkus Reviews Issue: Oct. 1, 1983

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