Of course, he's got a vote, and everybody's vote is equal. This was challenged by a man named Allan Bakke. Linda Greenhouse, author of The Burger Court, says those years helped establish the court's conservative legal foundation. This is FRESH AIR. Of course, the Senate's free to reject any nominee of any president and has done so, you know, consistently over time. And he gave his papers to his alma mater, Washington and Lee in Virginia, which has a wonderful library and has been nice enough to digitize most of his files. So in a way, Justice Scalia's death didn't change the outcome, but it enabled Justice Kennedy to write a pretty strong opinion embracing the notion of diversity and upholding this very long-challenged plan in Texas. That's the interesting thing about the Supreme Court. You quote excerpts of a speech that Burger gate in 1976 during the bicentennial and an excerpt of a speech that Thurgood Marshall, the first African-American Supreme Court justice, gave that same day. He authored the Court's opinion upholding the right of trial judges to order busing as a remedy for school segregation and he spoke for a unanimous Court upholding a subpoena for the Watergate tapes which resulted in President Nixon's resignation. GROSS: You know, the Burger court had the type of split that we're seeing today in the Supreme Court. But the framework, the First Amendment framework, was established in the Burger Court along with this sort of empowered First Amendment that sustains commercial speech, advertising of various kinds that we're inundated with today. The “Burger Court” dealt with everything from abortion to capital punishment to pornography, and it most likely ended Richard Nixon’s stay in the White House in 1974. That was very interesting - initial cut at the problem. Smart conversation from the National Constitution Center. Five to 4 said, no, the busing order may not cross district lines. Clearly, the authors wish that the Burger court went further in addressing these momentous questions. In recent decades, law professors have treated the Burger court as the nation generally has treated disco, lava lamps, acid-washed jeans and other cultural detritus from that bygone era: The less said, the better. This was a medical - a state medical school in California. But he commanded a lot of respect within the court. GROSS: You describe the Burger court as very pro-business. During his 13 years on that court, Burger earned a reputation as a conservative constructionist, and the incoming President Nixon was expected to have Burger on a short list to replace Warren, who had led what was considered a liberal court. And he was, one assumes, drafting an opinion to accomplish this. ... Roberts has been the swing vote on the conservative-leaning court. But his loosely reasoned opinions became fodder for use by the liberal wing of the Court, as his Lemon v. Kurtzman opinion on the Establishment Clause became a leading precedent for driving religion out of public life. And if you're just joining us, my guest is Linda Greenhouse. But we're just sorry to say - we wish it were otherwise - but we're just sorry to say that the Constitution has nothing to do about that. Thurgood Marshall says, the focus of the celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the more perfect union it is that we now enjoy. What's the role of courts? GROSS: What's your take on Congress blocking President Obama's appointment of Judge Merrick Garland? Read an excerpt of The Burger Court and the Rise of the Judicial Right, We Insist: A Timeline Of Protest Music In 2020, The Burger Court and the Rise of the Judicial Right. He saw around the corner, and he said, you know, if we give First Amendment rights to advertisers, if we bring commercial speech within the First Amendment, who knows where that's going to lead? GROSS: Linda Greenhouse is the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." She co-wrote the new book, "The Burger Court And The Rise Of The Judicial Right" with Michael Graetz, a law professor at Columbia Law School and Yale University. What are some of the most important parts of that memo? Nixon became president in January 1969 and campaigned on the promise to appoint conservative … But it was the Burger court that legalized abortion. So you say it was up to the Burger Court to define how that would actually work out. So by the end of the period - and this is continued through the Rehnquist Court and into today in the Burger Court - the Miranda decision itself is sort of a tattered remnant of what, I think, it was in the minds of the Warren Court justices who came up with that way of protecting the criminal suspect's rights against compelled self-incrimination. He practiced law for more than twenty years, but during this period he was active in the Minnesota state Republican Party. During the final debate between Clinton and Trump, held at the University of Nevada, Las Vegas, on October 19, 2016, and moderated by Chris Wallace of Fox News, Wallace opened the debate with discussion of the Supreme Court. GREENHOUSE: Right, I mean, your observation is completely correct. (Other rumored candidates were Potter Stewart and Thomas Dewey.) Now, your book is about how the Burger court pushed the Supreme Court to the right - and thereby pushing the country to the right. But there was a lot of turmoil, a lot of political pushback, brought us a challenge to affirmative action at the University of Michigan in the Rehnquist Court. That was in the works. The Supreme Court: Activism Takes Over the Court, Top Ten Closest U.S. Presidential Elections, This List of Favorite Islands will Make You Remember Why You Loved Poptropica So Much, The Top Ten: States with the Most Electoral Votes. And this was the first time that the court had said, yes, corporations have a First Amendment right to spend money in politics. GREENHOUSE: So I'll just say, I mean, it's enormous fun. This page was last modified on 26 September 2020, at 04:32. He's not going to change the justice's mind. That may be familiar to listeners because it's still the law today. All rights reserved. After we take a short break, a new comic adventure podcast for kids - "The Radio Adventures Of Eleanor Amplified." GROSS: This is FRESH AIR. So, you know, it seems as if they're getting away with it, but we shall see. Graetz and Greenhouse argue that on a wide array of issues — from presidential power to corporate power, from the establishment clause to the equal protection clause — it is impossible to understand the conservative shifts enacted by the Rehnquist and Roberts courts without first comprehending the body that initiated the rightward trajectory. This battle between conservative versus liberal activism still divides the court, and the country, today. He resigned from the court in 1986. The Constitution - the government didn't create the problem. In May 1969, Nixon announced Burger’s nomination and on June 9, after three hours of debate, the Senate confirmed Burger in a 74-3 vote. President Ronald Reagan moved quickly to nominate Associate Justice William Rehnquist as the new Chief Justice and a 50-year-old federal judge, Antonin Scalia, to the newly vacant Court seat. And you - the Chamber of Commerce - you have an obligation to start building some infrastructure from which corporate America can be defended, can defend its own interests in the courts. Find out more about how we use your information in our Privacy Policy and Cookie Policy. Burger identified with the Court's conservative wing and frequently voted to limit the liberal decisions of the Warren Court. The authors eschew a purely court-centric narrative by deftly situating the institution within the country’s larger political milieu. The social vision of the Supreme Court under earl warren was manifested on many fronts—dismantling racial barriers, requiring that legislative apportionment be based upon population, and vastly expanding the range of rights for criminal defendants, among others. This battle between conservative versus liberal activism still divides the court, and the country, today. So Richard Nixon ran against the Supreme Court, ran very successfully against the Warren Court as a court that coddled criminals and had ushered in the crime wave that was then very salient in the country. To enable Verizon Media and our partners to process your personal data select 'I agree', or select 'Manage settings' for more information and to manage your choices. For instance, to the extent that Burger as an individual is remembered at all nowadays, it is generally as “the Chief Justice from central casting,” on account of his shock of white hair, rich baritone and grandfatherly mien. In Roe v. Wade, Chief Justice Burger voted with the majority of the court in favor of abortion but supposedly only did so to enable him to assign the writing of the opinion to Justice Blackmun rather than to Justice William Brennan, who was expected to write a more liberal decision. Explaining the latest legal challenge to the Affordable Care Act, legal experts Abbe Gluck and Ilya Shapiro joined host Jeffrey Rosen. A few months after that, as you said, Richard Nixon appointed Lewis Powell to the Supreme Court. But I will explain. GREENHOUSE: Totally. GROSS: So in continuing with one of the themes of your book, which is that the Warren Court was a very liberal court, but its decisions were kind of open-ended and it was up to the Burger Court to kind of fill in how those blanks would be filled in in subsequent decisions. She's the co-author of the new book "The Burger Court And The Rise Of The Judicial Right." And if you're just joining us, my guest is Linda Greenhouse, co-author of the new book "The Burger Court And The Rise Of The Judicial Right." Even precedents that he disagreed with, when they were kind of foundational, he would accept them and kind of go on from there. GREENHOUSE: A couple of reasons - first, the resonance of what's going on these days in our politics.

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