Justice & Law Quote by Warren E. Burger

Burger’s line lands like a bench-side eye roll: the scare-quoted "discover" does nearly all the work. He’s not praising constitutional progress; he’s mocking it. The word suggests excavation of something buried and always there, but Burger implies the opposite - that the Court is inventing a requirement and dressing it up as timeless mandate. In a single sentence, he frames the majority’s ruling as judicial alchemy: turning policy preferences into constitutional necessity.

The specific target is the Warren Court-era expansion of defendants’ rights, especially the idea that the Sixth Amendment’s right to counsel attaches at “critical stages” before trial. A preliminary hearing can decide bail, lock in testimony, and set the tone of a case. For rights-oriented justices, counsel there is common sense. Burger, writing as a critic of that project, shifts the debate from what fairness demands to what the Constitution supposedly compels. “Nearly two centuries” is a subtle appeal to tradition: if generations of courts and legislatures operated without this rule, he suggests, the sudden revelation should be treated with suspicion.

Subtext: this isn’t just about lawyers in an early proceeding; it’s about institutional power. Burger is warning that the Court is moving from interpreting law to managing criminal justice, displacing states and lawmakers under the moral cover of constitutional fidelity. The sentence’s clipped incredulity is strategic: it invites readers to feel that the majority’s reasoning is less principled than performative, a late-breaking “discovery” that conveniently tracks modern sensibilities.