The movement for civility in American law led by Chief Justice Warren Burger in the early 1970s was aimed at containing radical legal practice—not, initially, at taming excessively adversarial litigation or at facilitating mutual understanding, the typical concerns of legal civility initiatives today. The history of legal civility complicates contemporary calls for civility and civil discourse as solutions to political polarization and distrust of institutions, even as it reinforces the significance of the questions posed by competing ideals of civility.
This article revisits the historical roots of civility discourse in law during the 1970s and explains how Burger promoted civility in legal practice to strengthen the legitimacy of legal institutions against critique. This formulation of civility advanced an ethos of restraint to preserve social order. Critics of Burger’s initiatives offered alternative formulations of legal civility that were committed to mutual understanding and to building connection across fundamental differences.

The article argues that the coexistence of the two forms of civility that emerged in the 1970s—Burger’s formulation of civility as way to use decorum to reinforce the legitimacy of legal institutions, and alternative formulations of civility as ways of fostering mutual understanding amidst skepticism of institutions—has generated incoherence. Neither Burger’s model of civility nor its relational alternatives can mend our social and political fractures. The article concludes by offering a reimagined civility—that not only balances care with critique but also offers a path forward for legal institutions protecting their legitimacy in a deeply polarized society.

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