>> some other programs to look out for this weekend on booktv, robert jones talks about the declining influence of white christians in the country. new york times reporter donald mcneil jr. discusses the origins and spread of the zika virus. now, that's just a few of the programs you'll see this weekend on booktv on c-span2. for a complete television schedule, go to our web site, booktv.org. you can also get updates via twitter and facebook. booktv, 48 hours of nonfiction books and authors. television for serious readers. and now we're going to kick off the weekend with a look at the decisions of the supreme court under former chief justice warren burger. >> linda greenhouse is one of the supreme court's best and most experienced observers. she covered the court for "the new york times" for decades and now teaches at yale law where she's the knight distinguished journalist in residence. she's written in oxford university press very short introduction to the supreme court which is apparently currently sold out at the supreme court. a biography of justice blackman and co-wrote a history of roe v. wade. in her new book, "the burg orer court -- the burger court," the received wisdom as we were discussing at the desk about the history, not much happened, there was roe v. wade, but that was it. not so much. greenhouse takes that idea apart. she and her co-author show the ways the conservative, mainly nixon-appointed burger court, reverse ared or undercut -- reversed or undercut civil rights and individual liberties while extending first amendment rights to businesses for the first time. i could draw some connections here, but you're not here to listen to me talk about the court, you're here for linda greenhouse, so please join me in welcoming her to politics & prose. [applause] >> thank you. it's really a treat to be back here. i've been here for a couple of the other books you heard about, and this is my first actual book talk with this book which came out, which was published on last tuesday. and there's no better place to launch a book like this. it's a book about washington, it's a book about the relationship between the supreme court and our politics, so it's much more timely, actually, than my co-author and i imagined when we launched on this project about five years ago. and to be here in what i think is maybe the most dangerous place inside the beltway, because nobody can walk into politics & prose without walking out with many more books and having spent more money than they've anticipated. that happened to me just this evening. [laughter] i'm going to start by just reading the first couple paragraphs of the book. that will give you maybe a bit of the flavor of what michael -- by the way, so michael is not here with me tonight because he's on a long-scheduled scandinavian cruise. [laughter] but he's a wonderful guy that i taught with -- taught this material with in seminars at yale law school for three years. he teaches now at columbia law school. so i'll just read the first couple of paragraphs. on september 17, 1987, an extravagant celebration took place in philadelphia to mark the bicentennial of the united states' constitution. a quarter of a million people lined the route for a parade that included a 40-foot replica of a parchment scroll, the constitution defied. at -- deeye mid. the man stepped forward to ring a replica of the liberty bell. it was warren e. burger, the retired chief justice of the united states, who had ended his 17-year tenure a year earlier for the purpose of presiding over this very observance which, as it happened, fell on his 80th birthday. burger addressed the crowd, quote: if we remain on course, keeping faith with the vision of the founders with freedom under ordered liberty, we will have done our part to see that great new idea of government of consent by we the people remains in place, unquote. burger's call to keep faith with the founders reflected one vision of the project they had launched with their great new idea, but it was not the only vision. four months earlier justice thurgood marshall, who still sat on the supreme court, had offered a far more sober take in a speech to a bar group on maui. marshall, the aging hero of the campaign to end racial segregation, first african-american to sit on the supreme court, advised his audience to be wary of the flag-waving fervor surrounding the bicentennial. quote: the focus of this celebration provides relief that the -- [inaudible] yielded the most perform union it is -- perfect union it is said we now enjoy, adding i cannot accept this invitation. the government, quote, was defective from the start, requiring several amendments, a civil war and momentous social transformation to better realize the promise of a more just society. credit for the constitution in its present meaning belonged not to the framers, marshall concluded, but to those who refused to acquiesce in outdated notions of liberty, justice and equality and who strive to better them. the competition between these two narratives is in many ways the subject of this book. so the warren court, court, whih preceded the burger court, had as its kind of pole star equality, growing the meaning of equality in the constitution and in the country. thatwarren burger himself was a judge on the d.c. circuit who was, you might say, running for a post on the supreme court when richard nixon came in. he had given a series of quite sober kind of semi-academic create tykes of the warren -- critiques of the warren court, particularly in the criminal procedure area. but behind the scenes, he wasn't quite so sober and quite so discreet, and in the correspondence that he had with his old friend, harry blackman -- who was a judge at that time on the eighth circuit back in minnesota -- we see real burger. on labor day, 1967, burger wrote that, quote: if i were to stand still for some of the id city that is put forth as -- i would yo city, i would, i'm sure, want to shoot myself in later years. these guys -- referring to the supreme court justices -- these guys just can't be right. there's nothing to do but resist. in another letter to blackman in march 1969 which was about four weekes before he was named to the court, he was very sharply critical of the court, referring to president nixon by his initials. r.n. can only straighten that place out if he gets four appointments. and, of course, he got four appointments. he was a lucky man. he got four all within the first three years of his first administration. and that change enabled the reversal of orientation that we see in the burger court. so i was signing books last week at the american constitution society annual convention here, and a judge who i won't name, but the judge known to, i think, probably many of you came up and saw the stack of books and said the burger court? okay, i mean, nothing much happened in the burger court. i said, read the book. [laughter] that's why we wrote the book. the sort of academic and political take on the burger court is that it was simply transitional. it was a court where nothing much happened. it kind of sat there between the warren court, we know what happened, and the rehnquist court which we remember much more vividly. and, you know, the burger court, the counterrevolution that wasn't is the title of really the only book that has been written on the burger court as such. not counting the brethren, actually, and the -- which didn't go into, fully into the whole burger court. the brethren came out, i think, in 1978, 1979, and the burger court lasted until 1986. the counterrevolution that wasn't, it's really not true. so we can kind of tick off a numb of the may -- a number of the major initiatives of the burger court. but to situate it in the politics and the social transformations of the time which is really part of the effort of this book, it's worth thinking about the legacy that the warren court left the country when chief justice warren retired and president nixon was inaugurated. so, of course, the warren court's known for brown against board of education, 1954, racial segregation was unconstitutional. the warren court pretty much left it at that and didn't specify what kind of remedies for is segregation, for intentional is segregation, for de facto segregation. what were the federal courts supposed to do about it? that was left to the burger court to fill in shay major, major blanks. and so the burger court had a series of choices to make. any court that fold the -- followed the warren court would have had the same choices to make but wouldn't have necessarily made the same choices. very significantly, while all nine of the burger justices endorsed grudgingly, but enforced blessing as a remedy for segregation -- busing as a remedy for segregation, a few years after that decision said busing stops at the district line except in some extraordinary circumstance which actually never occurred, as far as i know. that really had a great deal to do with the way our society evolved after that. we had inner city minority school districts, we had white suburban rings, and we had an ability to order any kind of remedy for that problem. so that was one of the things. people were very shocked back in 2010 in the early years of the roberts court when citizens united came down. what? you mean corporations have the right to speak in politics? well -- right to spend money in politics? it was a burger court decision in 1978, first national bank of boston against ve lastty, that first enabled corporations to have under the first amendment the right to spend money in politics. and that was a precedent that the roberts court cited in the 5-4 citizens united decision. people really didn't remember that there had been such a decision. the burger court's turn to enhancing the role of corporate power, corporate speech, commercial speech, first amendment rights, it's really a fascinating story. and i think it shows us how in our system the court can launch an idea without really having control over where it lands. and so the first case in which the right of commercial speech was noticed was actually a pro-consumer decision. there was a law that barred the advertising of pharmaceutical prices. and that was a great boon to the small mom and pop drugstores, because the big chain stores could undercut them on prices, but nobody could know about it. so the court struck down that law and gave the big chain stores a right to advertise. those justices, i don't believe, envisioned the growth of the commercial speech doctrine that we see today that really has been m braced by -- embraced by conservatives as a tool of deregulation. we see this in pharmaceuticals, we see this in tobacco regulation, we see this all over the place. and what's ironic is that the dissenter from all of the commercial speech cases in those days was william rehnquist, later the chief justice. that was the conservative position, not to expand the first amendment. now that's flipped, as many things in our jurisprudence have flipped, and we now see conservatives embracing a very robust first amendment in commercial speech here. i want to read one more passage here. i think one of the major challenges of this book was how to incorporate the fact that the burger court actually did something on the progressive side that the warren court had never done, and that was create, recognize a jurisprudence of women's rights, a jurisprudence of sex equality under the 14th amendment and, of course, roe against wade. so, you know, what about that? i called -- we call the chapter that discusses roe against wade, the abortion case, privacy at a price. and what i mean by that title is that, yes, the court endorsed a woman's right to abortion. actually, as the court understood it, it was the doctor's right to treat a patient in the way that the doctor thought was in her best interest. it was really a doctors' rights case as the court saw it. but rather soon after roe the question arose, what about poor women who can't afford abortions? the government pays for medical services, all kinds of medical services for poor people. what about paying for abortion, and the court said no. the court said no in a case called harris against mcclay. potter stewart's papers are at yale university. stewart was a graduate of yale. he left his papers to yale with the stipulation that they be closed until the last justice he served with retired, and that was john paul stevens who retired in 2010. then the papers opened, and they're really interesting. we use several interesting collections of justices' papers for the book. but stewart was assigned to write the opinion for the majority. it was 5-4 in harris against mcclay saying there's no constitutional obligation to pay for abortions for poor women. stewart's draft9 of his opinion -- draft of his opinion in his papers and was published as he wrote it, he said: the financial constraints that restrict an inty gent woman's ability to enjoy the full range of constitutionally-protected freedom of choice are the product of government -- are not the product of government restrictions, but rather her indigency. not certainly medically-necessary abortions. the fact remains that the hyde amendment -- which is still the law, as you know -- leaves an indigent woman with at least the same range of choice as she would have had. okay, think about that. and we write: this was warren burger's constitution in the raw. the public health concerns for the perils faced by poor women unable to obtain a safe legal abortion remained unabated. early in the drafting position stewart's law clerk had tried to inject a mild note of compassion into the draft opinion while still remaining true to his justice's analysis. quote: this is not to say that the situation of an indigent woman who is unable to afford a medically-necessary abortion is any less tragic because it results from her own indigency. he continued: her options in the absence of public assistance appear limited to either forgoing the medically-necessary abortion and thus suffering the adverse health consequences or obtaining an abortion through less expensive, often unsafe procedures that our elected representatives have not chosen to remedy this situation through public assistance is sure to cause her hardship, but the sad fact remains that the relief sought is not to be found in the constitution. that's the language that the law clerk wanted to add to potter stewart's opinion. upon receiving this offering from his law clerk, justice potter stewart made his reaction indisputably clear over those two paragraphs, he made a big x. and it never appeared. so what we see here is the constitution as giving us the negative right, the right not to be prosecuted for performing an abortion or for having an abortion, but not the positive right to have any obligation of the government to provide the service. and this was really the heart of the burger court term. the four nixon justices came on the court just as there was real momentum both in the legal academy and also in the courts to creating a juris prudence of positive rights -- jurisprudenceover positive rights that the government actually has an obligation to do something about poverty, to do something about the inquestion inquestion -- inequalities in education. it sounds like i'm channeling bernie sanders. [laughter] it sounds like something from a whole long time ago, and it was a couple generations ago now, but it was real. and people had good reason to think that it was about to happen. so litigation was put together in texas to challenge the wealth disparity between two school districts in the san antonio area, a case called san antonio against rodriguez. and the claim there was because school financing is based on districts' wealth through the property tax, poor districts have to tax themselves much more to get to some level of equality and educational opportunity and that that violates the constitution, that violates the guarantee of equal protection that education is a fundamental right, that poverty is something that the constitution needs to take account of and, consequently, the school finance system is unconstitutional. that was the claim. and that was a claim that was accepted in the lower courts. that was -- and just as that case was working its way up to the court, the burger court consolidated and that claim was regented by a vote of 5-4 -- rejected by a vote of 5-4. think about it, that was the entrenchment of forget the positive rights as exemplified by the material i just read. going to read just one more part because one effort in this project was to situate the court as reflecting and living among the social revolutions and transformations of the late '60s and early 1970s. how could the court not have had something to do with that, some way of reflecting it? so i had a lot of fun writing about the obscenity and pornography efforts -- [laughter] of the burger courts to deal with those subjects. i'll just read this little bit in this chapter called expression and repression. on april 1, 1969, an american newspaper carried an editorial under the headline beyond the garbage pail. quote: the explicit portrayal on the stage of sexual intercourse is the final step in the erosion of taste and subtlety in the theater, the unsigned piece began. it reduces actors to mere exhibitionists, debases sexual relationships almost to the level of prostitution. it is difficult to see any great principle of civil liberty involved, unquote. the editorial went on to deplore not only sexual activity on the stage, but also depictions of sex in best selling novels and film, particularly the more notorious swedish imports. [laughter] quote: inseven sate pursuit of the urge to shock was common to them all. far from providing a measure of cultural emancipation, represent caricatures of art deserving no exemption from the laws of common decency merely because they masquerade as drama or literature, up quote. this was not the voice of a country newspaper editor from the heartland. the editorial appeared in the "new york times." the newspaper didn't identify the offending productions by name, it didn't need to. as most times readers surely knew, the stage performance that so alarmed the editorial board was an off, off broadway play called che in which a nude actor was assassinated by an actor depicting uncle sam dressed only in a hat. [laughter] before that dramatic finale was, quote, a frenzy of homosexual and other unorthodox sexual acts, unquote, according to an account of the play's opening night at the broadway free store theater in the east village. a reporter's query about whether the performance might be violating any obscenity laws elicited a. >> is rug. quote: this is a problem the supreme court couldn't agree on, so please don't ask us to rule on art. [laughter] but inspector fink was evidently thinking without having cob subtled his department's -- consulted his department's public morals squad which two days later arrested two playwrights, the directer and a member of the crew. the court couldn't figure it out. the court was in the practice of watching dirty movies in the basement screening room -- [laughter] and deciding case by case which ones were obscene and which ones weren't. [laughter] and warren burger, to his credit, thought that this was preposterous and proposed that the court just take a step back and get a grip -- [laughter] and find some kind of first amendment jurisprudence that would get the court out of this kind of business. and he and brennan then proceeded to have a big argument about how to proceed. brennan agreed that things weren't going too well. brennan wanted to just say the first amendment makes -- anything goes under the first amendment. burger wasn't willing to do that. but he said s and i think this was a very valid insight, he said let's leave it up to local communities because what goes in las vegas doesn't necessarily go in, you know, podunk, and communities should be able to decide. and that became the law. that was miller against california, that's the law that's still on the books. i just highlight that because it shows the court, you know, really struggling to reconcile jurisprudence with reality, with the country. there was kind of obsession about pornography in those days, and it was part of the burger legacy that the court got pretty much out of that business. i'll just close by mentioning the fun that it is to work in the justices' archives, in the justices' papers. if you've never tried it, it's addictive. so you can look at the harry blackman papers at the library of congress. he left them all to the public, and they're available. you can look at louis powell's terrific set of papers online. they're mostly all digitized on the washington library web site. and we made major use of the powell papers because he regarded himself as a figure of history x he an -- and he annotated his notes case by case, saved them for assiduously. and so you can look at, you know, the bach file or almost anything. powell was, as many of you probably know, the kind of tortured swing vote in bauers against hardwick, the major gay rights case from 1986 and he first voted the right way and changed his mind and voted the wrong way, and the case came out the wrong way, and later on after he retired, he said he regretted it, he was wrong. all that's chronicled in his very own papers. and so that was really a treat. and just being able to -- i covered a bunch of the burger court. i started covering the court in 1978, so i was there for the last eight years, enough of it to give me some perspective on this material. and i was very happy to launch it last week, and i'm very happy to launch it here, and i'd be glad to take your questions. [applause] >> so, linda, i think it's a valuable contribution. it's wonderful that you had the patience to read all those decisions. i started law school in 1969, and i sensed what was going on and became a physician instead. [laughter] how much of it do you think can be reversed? i mean, they started with the burger -- the present supreme court started with the burger decision, and then they were extended by the rehnquist decisions and then we got things like citizens united which represented reversals of what law had been for 60 or 70 years before that. how much of it do you think we're stuck with? i mean, i realize this is a very broad question, but are they just going to nibble around the edges, or do you think we can get some movement back towards at least the middle if not the warren court? >> i think there could be movement back, sure. you know, probably not in a wholesale way. and, you know, what has baffled people about the burger court was that the burger court did not act, actually, in a wholesale way for the most part. by the time the burger court ended, you know, miranda against arizona was still on the books. yeah, but they hollowed it out so there are all kinds of situations where the criminal suspect is deemed to have waived his miranda rights or where miranda doesn't apply or whether it's a miranda violation that doesn't count, so on and so on. courts have many ways of tackling a body of precedent that there's a majority that doesn't like it. so i would expect that, sure. that's why the court, that's why it's such a hot political issue right now, because there's so much hanging by a thread. and i'll just say one thing that i actually sort of meant to say. the roberts court of today is kind of an anomaly in that we had before justice scalia died, you know, four justices on one side, four justices on another side and the, quote, swing justice, justice kennedy, in the middle who could decide every case that most of us care most about. that's not the historic pattern of how the court's been organized. the burger court, there were three or four justices who were basically in the middle -- justice powell, justice white, justice stewart, justice john paul stephens. it made a very different dynamic. who knows what the dynamic's going to be a year from now, but the court's a hot issue because people realize what's at stake. everything's at stake. >> it's a very valuable book. >> thank you. >> hi. with the senate today debating the second amendment, senator cruz this morning said that this debate over the no-fly rule was an affront to the second amendment. and i thought this was surprising for someone who considers himself a strict constructionallist. i mean, as a columnist in "the washington post" pointed out, the second amendment says that a well-regulated militia. so it's part of the second amendment to talk about regulation, a well-regulated militia. and then as you have noted, no right is absolute. i mean, you can't -- i think the supreme court found you can't shout "fire" in a crowded movie if there's no fire. what would your response be to senator cruz? [laughter] >> well, so the reason we don't have anything about the second amendment in this book is that there were no second amendment cases during the during burger years, and chief justice burger himself famously proclaimed that the notion that the second amendment conveys an individual right to gun ownership is, as he put it, a fraud. so it took years of political mobilization to get the heller case up to the supreme court for the 5-4 decision in 2008. so if you go back and look at heller, heller was not a blanket anything goes under the second amendment. it said the second amendment conveys the right to have a handgun in the home for the purpose of self-defense, not concealed carry. it didn't address those issues. there's a whole lot of post-heller issues that are getting teed up for the supreme court, for the next supreme court, and we'll see. but certainly no right is absolute. in taking heller at its word, justice scalia having written the majority opinion, taking him at his word, i think there would be lots of situations where, you know, contra senator cruz some kind of gun control would be considered constitutionally acceptable. >> thank you. >> hi, linda. this is -- i don't know if it was a story you wrote, but "the new york times" carried a story in which justice brennan essentially said that warren burger was stupid. [laughter] didn't quite use those words, but essentially that he wasn't a very smart man. and then the question is, during the 17 years or so that he was chief justice, who was the intellectual leader of the court? i kno that brennan managed to get a number of victories, but who was the conservative leader? >> that is a very good question. i think it was louis powell who was a very instinctively conservative man, you know, a gentleman of the old south. but who worked hard and tried to come out with the right answer. didn't always succeed, in my opinion, but looking at his papers i certainly credit him with a great deal of intellectual honesty, and i would say he was the conservative intellectual leader. >> more than rehnquist? >> ah. so rehnquist was the, you know, kind of junior associate justice. rehnquist saw around a lot of corners, but in his time as associate justice before he became chief justice he was most often in solitary dissent. so he was pretty far to the right of the court's center of gravity, so much so that, you know, he wasn't sort of carrying the weight. he changed his, he kind of changed his tune when he became chief justice and was much more interested in speaking for a court. but powell was the kind of swing justice of his time to the extent that there was one with the caveat that i mentioned earlier. so i would give him that credit. >> thank you. >> hi. so one area where the burger court seemed to have moved in a progressive direction was gender equality under the 14th amendment, thanks perhaps largely to litigation brought by justice ruth bader ginsburg. >> definitely. >> where do you think that line of cases fits into the larger narrative about the burger court? >> so where i think it fits in is that it was, of course, a response to changes in society, changes in the world around them, changes in the role of women in the workplace, in the home. and actually ruth ginsburg has said kind of, you know, modestly , i mean, she had a great deal to do with this juris priewps, but she has said she came along at the right time when the court was ripe for this. the point we fake the book -- we make in the book is this far, no further. an early case of pregnancy discrimination where those of us in this room old enough to remember when a public schoolteacher got pregnant, she had to leave. whether she wanted to or not, mandatory up paid leave -- unpaid leave with a long leaf and so on -- leave and so on. and this was challenged as a violate of equal protection. -- a violation of equal protection. and the court struggled with it, and the burger court couldn't quite deal with it. where's the discrimination? it's not discrimination as between men and women, it's discrimination between pregnant women and not pregnant women, so where's the sex discrimination in that? and the court did strike down these policies under the ground of due process. it was kind of a copout to. and i'm here to tell you even today, in 2016, the supreme court of the united states has never fully embraced notion that discrimination based on pregnancy in the workplace is sex discrimination. they continue to struggle with that. so, you know, the burger court deserves credit. but it never went as far as strict scrutiny for lawyers -- not to engage in jargon -- never quite bought the full extent of what ruth ginsburg was trying to sell them and left all that for future courts. >> a comment and a question. i think we need to remember that the aclu on commercial speech was one of the early strong proponents of expanding those right ares. not just -- rights. not just for the listeners, but also for the speakers. the question, to some extent a court is a function of the personality of the chief. and my impression from public and non-public things so i'd like your insight, how would you describe warren burger's personalty, and how that might have affected what he did substantively on the merits of cases? because my impression is that he's a guy who liked to be the center of attention, didn't like to be disliked, you know, very sort of different personality. not necessarily a loner. different from other chiefs. do you have some insight into his personality affecting decisions, and can you cite other than the sex discrimination cases some other favorable decision you would attribute to his influence? >> yeah. i moon, it's not actually a book -- i mean, it's not actually a book about personalities, and i don't fully subscribe to the notion that the personality of the chief justice really determines what the court does. it's a collective, and anybody can do anything there without, as justice brennan would hold up his hand saying count to five. i think burger was not a particularly effective manager of the court. he alienated a number of his colleagues. he was petty, he was insecure. he was kind of pompous and often as we know in life paucity kind of masks insecurity, right? but i'm not sure i could link any of that to actual, to the actual jurisprudence. and when rehnquist came in, he was a much better manager of the court, he was much more popular inside the court. whether that was part of his innate personality or whether he, having been an observer of warren burger had decided to do things differently, i don't know. so in answer to your question what other good things did the court do -- [laughter] >> [inaudible] >> well, i mean, well, they got rid of richard nixon, that's true. [laughter] the watergate tapes case. and somebody called out bakke, so that was justice powell's decision, he voted alone in the affirmative action in 1978 that quotas were unconstitutional but affirmative action in public university admissions for the sake of diversity was acceptable. this kind of -- that kind of effected a settlement that lasted, i mean, in effect lasts until today. i went up to court this morning thinking they might finally hand down the fisher decision from texas, but i figured i was in town, maybe i should go watch some news being made -- [laughter] no, nothing happened at the court today. you know, i think that did buy some peace for some time but it was, like everything else, peace at a price. because since the interest that was vindicated there was not actually the interests of the minority students, it was the interests of basically the people surrounding them, the diversity in the classroom wasn't there. when you get to a case like the case from michigan that came down a couple of terms ago where the voters of michigan had enacted a referendum that said universities could not use affirmative action, you know, the answer to that the court accepted that, upheld that and said, you know, diverse the city's nice. bakke told us diversity's nice, but if the state doesn't want to do it, they don't have to do it. it was a very tenuous kind of settlement that, as i say, may soon be about to collapse. we'll see. >> hi. i haven't read your book yet, but i know i need to. could you entice us by -- i have this notion that some justices grow in office and some may shrink. [laughter] and that some interesting changes have happened to some of the justices. i think blackman changed, ask i don't know whether that was -- and i don't know whether that was so much during the burger era or -- >> oh, it was. yes. >> but could you entice us with stories of either some who changed in interesting ways or just became caricatures of themselves? [laughter] >> yeah. so, i mean, not to entice you under false pretensions. the it's really not a book about personalities, but i did write a book about justice blackman ten years ago that maybe could be found someplace in this store -- [laughter] that really traced his estrangement from warren burger and, you know, bitter estrangement from warren burger. at least my thesis was it had a lot to do with roe against wade and his abrasive -- embrace of roe even as burger kind of pulled away from it. so i'm not sure or what else i can, i can tell you. i mean, it was just very interesting going through the papers and seeing things like the potter stewart x over his law clerk just trying to introduce a little note of compassion in the hyde amendment in the abortion financing case. i came away mightily unimpressed with potter stewart who has a pretty good reputation, written largely in the media because he was quite good on the first amendment. so he was a principled of the first amendment and -- a friend of the first amendment and a friend of the press but not a friend of that much else. so that was kind of a revelation to me, to come to that sorry conclusion that there wasn't all that much there with port stewart. potter stewart. >> hi. having followed the court for so many years, do you have an opinion on whether term limits would be a good idea or not for the court? >> so i think it's an idea worth seriously talking about. you know, it's very interesting that as the new democracies after the fall of the soviet union and so on were devising their new judicial systems modeled, many of them, after ours, not a single one of those new democracies adopted life tenure for their constitutional courts. and in our states, of course, every state has a high court, there's only one state -- i think it's rhode island -- that has life tenure for its justices. every other state either has a term of years or an age limit. so, you know, kind of people have voted with their feet for life tenure for all federal judgements, it's not just the supreme court, is a little bit anomalous. and, you know, obviously it drives our confirmation process, nomination and confirmation process in knot very healthy -- in not very healthy ways because it randomizes the thing. so, you know, richard nixon had four within three years. jimmy carter had none. so every vacancy just carries a whole lot of weight because nobody knows when the next one might be. if it were regularized through term limits, it's at least possible to think that each vacancy wouldn't be quite so freighted. maybe that's naive, but, you know, when some people in the legal academy first sort of started talking this way about 10 or 12 years ago, it seemed kind of muti because, you know -- nutty, because, you know, if it ain't broke, don't fix it. life tenure, obviously, is intended to protect judicial inagainst. but, you know, as time has gone on, i think it's -- i've come to think it's worth a serious public discussion. >> i'm curious how did the burger court change with the introduction or confirmation of every, of the most junior justices during warren burger's tenure? i read somewhere that the court could be described or labeled depending on the most junior justice since it changes quite a bit, so could you -- >> oh, interesting. i mean, justice white famously said every time a new justice comes to the supreme court, it's a new court. and that's true. isso i'm thinking john paul stevens took the place of william o. douglas in 1976. sandra o'connor took potter stewart's to place in 1981. i think to conner confirmation -- the o'conner confirmation, justice o'conner's arrival, probably of all the new justices who came on while burger was chief justice was the most consequential because she was a solid vote for states' rights within the federal system and for the prosecution side of the criminal procedure cases. and so she gave, she gave burger a majority to cut back on habeas corpus, to justice brennan's extreme dismay. they had major battles. and she -- not so much in the burger or years because it took clarence thomas coming on and replacing thurgood marshall to give chief justice rehnquist five solid votes to elevate the role of the states. that was the rehnquist federalism revolution in the early '90s. so she was a very important addition to the court. >> i was very interested in what you said about when associate justice rehnquist was elevated to chief justice now. he was more effective on a practical level than justice burger. and i note that that is not a tradition in the united states supreme court, to elevate a sitting associate justice to be chief justice -- >> right. >> -- whereas it is in some states like california. i'm wondering about your thinking now that might be something that would be good to institute in the united states supreme court? someone who has experience right there in the supreme court to take the place of the chief justice. >> yeah, i mean, the whole role of the chief justice is kind of, you know, a strange thing. because the constitution itself doesn't specify, says almost nothing about the chief justice and doesn't specify how the chief justice is to be appointed, whether it it's to be appointed in a separate commission or is it supposed to be just the senior, you know, longest serving of justices like we have -- i mean, the reason merrick garland is chief judge of the d.c. circuit is he's the most senior judge serving on the d.c. circuit. and that's to how it works in other of the circuit courts and the district courts. so it's been unusual that a sitting justice has been elevate. i think one reason it's unusual is the confirmation effort for that elevated associate justice sort of becomes a referendum on the current court and on what that justice has been doing. the rehnquist elevation was very controversial. he had many vote ares against him because -- votes against him because if he came -- in fact i see ralph nice staring me right in the face. [laughter] so as ralph will attest, it was kind of a dress rehearsal for the bork battle that people suspected was going to come a year later. but also it became a referendum on, you know, the burger court and rehnquist's own performance as associate justice. so it's kind of freighted. and it's, in a way, it's kind of the path of least resistance to take somebody from outside the court. >> thank you. >> thank you. i had several questions, and john paul stevens' books bring up the subjects that you've discussed, for example, of immunity and the rights of the states. >> can you talk a little louder or into the mic? >> may i ask if you deal with the explanation for legal problems that at the time of the burger court was more informed by social sciences than today where it seems to be a matter of political terrorism or implicit conspiracy. but do you deal with that, do you find that an interesting subject? a structure system also came under scrutiny, whether it would be wise to allow citizens to judge one another given their different kinds of memory and their prejudice in their local impossible circumstances. >> well, there's nothing in the book that deals with that. of course, the jury system is hard wired into constitution. so it's not, you know, it doesn't lie within the court's power to get rid of it. >> and the human sign sciences asen explanation -- as an explanation, for example -- [inaudible] rising explanation of resistance in a country to the constitution as an actual reform of the constitutional purpose and mission? >> well, to the extent that i'm following your question, and i'm afraid i may not be, i think the, you know, part of what went on in the burger court in terms of dialing back the criminal due process revolution of the warren court was response to the fact that there really was a crime wave in the country, and people were very upset about it, and that's why richard nixon could so effectively run against the court in 1968 as a bunch of, you know, criminal-coddling, out of touch judges. so i think, you know, it's an example of the fact that the court really does inevitably reflect the political mood of the country and sort of what's going on in society. if that's an answer. >> hi. in terms of potentially nutty ideas that might take on some traction based on unexpected events, what do you make of greg abbott, the governor of texas' call for a convention of states to amend the constitution? and if republicans lose in november, could this idea sort of percolate and gain traction on the right, do you think? >> well, he's not the first. i mean, this idea, you know, there's a constitutional process for calling for a convention, and i think it would be a pretty scary idea because, you know, it could get launched and who knows what might come out of it. and i'd be, you know, i'd be pretty surprised if that happened. it wouldn't necessarily attribute it to greg abbott. there's some number of states that have sort of a standing resolution call figure -- calling for it, as i recall. but r but more than that i don't know. >> we'll make in the last question. >> okay. i just wondered if you had any explanation for rehnquist moving from always voting no on women's equality rights to a position where he actually signed on -- although not on justice ginsburg's opinion -- in the virginia military institute case and also in a subsequent -- >> in hibbs. >> yeah. >> right. yeah. i mean, there's a few -- so toward the end of his career chief justice rehnquist cast a few sort of more liberal votes. so the question is why did he do in this? had he kind of seen the light? or was he trying to retain control of the majority so that he could not have it go any further than he had to let it go? you know, i'm not sure i know the answer to that, but the hibbs case -- which people may not remember by its name. it was one of these federalism cases, and the question was whether the states were bound to give their state employees the benefit of the family medical leave act. or whether under a theory of state sovereignty the states were basically constitutionally immune from having to abide by this law for their public employee work force. and rehnquist wrote the opinion that said, yes, even though we've been 'em baggerred on this -- embarked on this federalism revolution and cutting our way through the landscape of federal laws that we carve the states out of, this one will go too far, and states have to abide by the family medical leave act. so, you know, the question was what happened? the kind of reductive answer is he had a daughter who was a single parent, and he was known to when she had a problem at work, he was known to leave court and go pick up the grandchildren at school and had some appreciation of the need for the family medical leave act. i don't know with. i don't know with. it would be presumptuous of me to try to read his mind. but it was an interesting development, and i remember ruth ginsburg saying when she brought the opinion home to marty, her husband, he said to her: did you ghost write this? [laughter] no, i don't think anybody had to ghost write anything for william rehnquist who was a very smart man and who said exactly what he thought and did exactly what he wanted and didn't much care what anybody thought. so, you know, it's interesting. it's an interesting coda to our conversation. so thank you very much. [applause] >> everybody, please fold and stack your chair, if you can, before you get in line. [inaudible conversations] >> and you're catching booktv on c-span2 -- watching booktv on c-span2, television for serious readers. here's a look at our prime time schedule this evening. we kick off with robert jones. his book is "the end of why is christian america." -- or white christian america. then tennessee senator lamar alexander sits down to discuss the books that have influenced his life and career. at 10 p.m. on "after words," seymour hersh describes the killing of osama bin laden. and we wrap up booktv in prime time at 11 p.m.. donald mcneil jr. of of "the new york times" reports on the origin toes and spread of the zika virus. that all happens tonight on c-span2's booktv. >> the new boston post recently put together a list of the top ten conservative books to put on a summer reading list. the list starts off with pulitzer prize-winning columnist george will's "the pursuit of happiness and oh sobering thoughts," which is a collection of essays written in 1978. william f. buckley jr. is next on the list with an exploration of his roman catholic faith in "nearer my god." the downing street years by margaret that much every is third on the list and discusses her time as the prime minister of the united kingdom. in the way of the wasp, richard brookhiser examines the personality and values of george h.w. bush and his views on public service and tradition. the autobiography the undocking united mark steyn is fifth on the new boston post list of suggested summer reading followed by the closing of the american mind which is alan bloom's critique of american culture. next on the list is former oklahoma senator tom coburn's "the debt bomb," which lays out his plan to make the government more fiscally responsible. "wall street journal" columnist peggy noonan's "the time of our lives" is a collection of her columns and comes in eighth on the list. finishing off the new boston post's list of suggested summer reading are randy barnett's examination of the constitution and how it applies to politics today and restoration, another book by george will on term limits and a functional democracy. booktv has covered many of these books over the years. you can watch them on our web site, booktv.org. ..

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