When Richard Nixon was elected president in 1968, the task of overhauling a Supreme Court in the midst of a 15-year streak of expanding civil rights for basically the only time in history was at the top of the president-elect’s list. Tapping federal appeals court judge Warren Burger to replace Chief Justice Earl Warren, who stepped down in 1969, was supposed to ignite that effort. Burger, after all, had spent years functionally auditioning for the job, declaring in speeches that Warren Court decisions protecting defendants’ rights had become “common talk in the best clubs and the worst ghettos.” Nixon, as was his wont, heard that dog whistle loud and clear.
Burger, however, never lived up to Nixon’s grossest expectations. Sure, he was a virulent homophobe who once wrote that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” But Burger also joined the seven-justice majority in Roe v. Wade, and made little headway towards rolling it back in the nearly two decades that followed. His tenure set the stage for the subsequent Rehnquist and Roberts Courts to kick the conservative legal movement into high gear, but was also a disappointment to reactionary dead-enders who wanted more, faster.
Burger’s failures are partially attributable to the fact that, ideology aside, he was simply awful at his job. Much of his appeal to Nixon stemmed from the fact—I am not making this up—that everyone thought he looked like a Chief Justice, which is to say that he was an elderly white man with a deep voice and a strong jaw. But outside the portrait frame, Burger was kind of a dunce, blowing deadlines and frustrating colleagues by switching his vote around willy-nilly to try and stay in the majority. Justice Lewis Powell nicknamed Burger the “Great White Doughnut,” since, a former Powell clerk explained, “he had white hair and a bald spot in the middle, and it signified nothing inside.” Burger retired in 1986, telling Ronald Reagan that—again, I am not making this up—the stress of chairing a special commission to plan America’s bicentennial celebration was too great for him to continue as Chief Justice.
What I am saying here is that no part of this newsletter should be taken as a substantive defense of Warren Burger, a bigoted mediocrity. But Burger was eyes wide open about the decades-long conservative push to reinvent the Second Amendment as an individual right to gun ownership—one that just so happens to provide Republican politicians and the gun lobby that backs them with a free jurisprudential boost. In a TV interview conducted a few years after his retirement, an exasperated Burger referred to this movement as “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”
He continued: “If I were writing the Bill of Rights now, there wouldn’t be any such thing as the Second Amendment.”
Two weeks ago, the Court’s conservatives ably demonstrated that they do not give a shit about the musings of Warren Burger, who died in 1995 at 87. In his majority opinion in New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas spends some 30 agonizing pages parsing 17th-century laws about carrying swords in New Jersey and emerges at the end, like Andy Dufrense crawling through a river of shit out of Shawshank, with a shiny new constitutional right to carry a gun in public.
Like most “originalist” Supreme Court opinions, Thomas’s latest piece of University of Wikipedia history scholarship immediately drove actual historians insane. “To describe the Thomas version of the past as a caricature understates the case,” writes Fordham University’s Saul Cornell, who for good measure calls the opinion a “tendentious, error-filled, and highly selective culling of evidence to vindicate their gun-rights agenda.”
To hear a conservative justice excoriate their putative allies as fraudsters, Burger-style, would be astonishing today, because for conservatives, the failures of Burger and other GOP appointees to toe the party line line—Justices Sandra Day O’Connor, Anthony Kennedy, and the reviled David Souter—prompted them to build a pipeline that would yield only nominees with an established record of fealty to Federalist Society orthodoxy. There is a simple reason that modern Republican justices don’t really express heterodox views, and especially not when it comes to the issues that matter most to Republican political power: They don’t have any. Warren Burger, great white doughnut and all, saw what was coming. He was also way, way too late to do anything about it.
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