Warren E. Burger

Chief justice of the United States (1969-1986)

• Born: September 17, 1907
• Birthplace: St. Paul, Minnesota
• Died: June 25, 1995
• Place of death: Washington, D.C.

As chief justice of the United States for seventeen years, Burger was viewed as a conservative “law-and-order” judge who many thought would reverse much of the constitutionally revolutionary liberalism of the era of his predecessor, Earl Warren. Instead, the Burger Court consolidated and continued much of the Warren heritage.

Early Life

Warren E. Burger was the fourth of seven children of Swiss and German parents. His father was a railroad cargo inspector and traveling salesman of a modest, working-class economic background. As a child, Burger assisted with family finances. In high school he was editor of the weekly student newspaper and was also a part-time reporter for a metropolitan daily newspaper in St. Paul.

Burger declined a scholarship to Princeton University because he could not afford the remaining costs. Instead, he enrolled at the University of Minnesota for two years and then attended evening law school at St. Paul College of Law (now William Mitchell College of Law) for four years while working as an insurance salesman. He graduated magna cum laude in 1931 and joined a leading St. Paul law firm, Faricy, Burger, Moore and Costello. Five years later he was made a partner. He also taught contracts as an adjunct professor at William Mitchell from 1931 until 1946. On November 8, 1933, Burger married Elvera Stromberg. Future United States justice Harry Blackmun, a close friend and fellow Minnesotan, was best man at the wedding. The Burgers were married for sixty-one years until Elvera’s death in 1994. They had a son, Wade, a daughter, Margaret, and two grandchildren.

Burger was active in Republican politics in Minnesota from the late 1930’s until the early 1950’s and managed Harold Stassen’s unsuccessful presidential bids at the 1948 and 1952 Republican National Conventions. His support of Dwight D. Eisenhower during the 1952 Republican Convention influenced his appointment by Eisenhower in 1953 as assistantattorney general to head the Justice Department’s Civil Division. He developed a reputation by representing the government in labor and maritime law litigation. Because of this, his colleagues nicknamed him Admiral.

In 1956, Eisenhower appointed Burger to the U.S. Court of Appeals for the Circuit Court of Washington, D.C., where he gained a reputation as a hard worker and an outspoken critic of his liberal colleagues, notably Judge David Bazelon. Burger, a conservative in criminal justice matters, preferred to think of himself as moderate.

When Richard M. Nixon was elected president in 1968, Chief JusticeEarl Warren retired. Vietnam and “law and order” were the issues of the day. The rising crime rate became alarming, and the Warren Court was regarded by many as too solicitous of the rights of criminals. Fulfilling an election promise to appoint “strict constructionists” to the Supreme Court, Nixon nominated Burger to the position of chief justice in 1969. The American Bar Association gave Burger a “highly acceptable” rating during the Judiciary Committee hearings, and the Senate confirmed the nomination 74 to 3. Nixon expected Burger to bring about the reversal or abandonment of the liberalism of the Warren Court and cause the Court to embrace a conservative philosophy. However, this did not happen.

Life’s Work

Burger has been described as physically symbolizing the law’s dignity: His distinguished looks, white mane, and broad shoulders were complemented by his rich baritone voice. Many perceived him as aloof and unfeeling, while others stressed his kindness and courtesy. Some refer to him as a “petty pedant” who, more concerned with formal dignity and minor details than the overriding duties required of him, could not handle the demands of his office.

Burger made his mark in administrative matters by acquiring a copier for the Court, redecorating the Court cafeteria, and personally assisting in the selection of china and glassware. He redesigned the Court bench, changing it from the traditional straight bench to a half-hexagon winged shape. Burger developed a keen interest in art and was an accomplished sculptor. As chief justice he served as chair of the board of the National Gallery of Art. He also served as a chancellor of the Smithsonian Institution. He collected antiques and was a connoisseur of fine wines. He had epicurean tastes, yet made soup in his office kitchen for his law clerks on Saturdays.

A paradoxical man, Burger was almost adversarial in his relationship with the press and encouraged an atmosphere of secrecy to envelop the Court. Concerned about leaks to the press, Burger forbade his staff from speaking with reporters (an unnecessary prohibition, since this was already a condition of employment). Burger streamlined the process by which cases were reviewed by the Court by reducing oral arguments from two hours per case to one. Complete opinions were no longer read from the bench, but instead were summarized, while the full text was released in print. Copiers and word processors produced drafts and memoranda formerly typed with eight carbon copies.

The federal court system was also streamlined when the Institute for Court Management was created and graduates were assigned to district and appellate courts to relieve judges of administrative tasks. Six-person juries were adopted in most federal jurisdictions. Prisoner petitions to federal courts were reduced by one-third when the Federal Bureau of Prisons established an internal system of grievances. States pooled their experiences and ideas in the National Center for State Courts, established in 1971. Despite computerizing and modernizing the Court and overhauling the judicial system, Burger’s efforts to create a new level of appellate courts to lighten the Court’s load were unsuccessful.

Burger authored about fifteen majority opinions per term, wrote relatively few concurring or dissenting opinions, and ranked as the least productive opinion writer during his years on the bench. He was concerned about his public image as a conservative and was determined to correct this perception by voting with the liberal wing and writing some liberal opinions.

Burger reportedly often wrote short dissents or concurrences to opinions scheduled to be issued the following week. These short opinions were often his gut reactions and were often angry in tone. They expressed his notion of right and wrong, of common sense his real political philosophy. He called them “little snappers.” His clerks usually asked to edit them, couching political or moral assertions in legalese. Often a few days later, a calmer Burger would have second thoughts about these opinions, asserting that he was not serious about them.

Burger has been criticized in his function at court conferences and assigning opinions. Generally the chief justice discusses the facts and issues of the cases and tells how he would vote. If he is in the majority, he assigns the opinion; if he is not, the senior justice in the majority assigns the opinion. Burger reportedly voted with the majority to assign the opinion, but often ended up in dissent. His role at conferences has also been called unfocused and lacking leadership, emphasizing irrelevancies.

The Burger Court decided some landmark cases in which new rights were recognized. Notable among these were Furman v. Georgia (1972), which held unconstitutional a state capital punishment law; Frontiero v. Richardson (1973), which concerned equal protection of the laws in the area of sex discrimination; Swann v. Charlotte-Mecklenburg Board of Education (1971), which authorized busing as a judicial remedy to achieve school desegregation; and Lemon v. Kurtzman (1971), which held that violations of the establishment clause are to be determined by a three-pronged test: A law cannot have a religious purpose, promote or inhibit religion, or foster excessive government entanglements with religion. Other important cases included New York Times v. United States (1971), the Pentagon Papers case; Miller v. California (1973), which established the test for obscenity; United States v. Nixon (1974), which held that executive privilege was not absolute and must yield in criminal prosecutions where nondisclosure would interfere with the responsibility of the courts to do justice; Regents of the University of California v. Bakke (1978), which held that race may be used as a factor in admission to institutions of higher education as long as racial quotas are not used (affirmative action); and Roe v. Wade (1973), the bitter controversy in which the Court held that the constitutional right of privacy is broad enough to include a woman’s decision to terminate a pregnancy during the first two trimesters. In this case, Burger voted with the majority.

Burger abruptly resigned in 1986 to accept an unpaid full-time position offered to him by Ronald Reagan to chair the commission planning the bicentennial celebration of the Constitution in 1987. He was awarded the Presidential Medal of Freedom in 1988. Burger died in Washington, D.C., on June 25, 1995.

Significance

At the time of his appointment, Burger was viewed as the embodiment of the conservative legal philosophy of Nixon. While this did not materialize, the Burger Court is nevertheless difficult to characterize. Primarily because of the chief justice’s lack of strong leadership, the Burger Court was prevented from adopting any consistent course of action. A politically motivated court, it made its decisions based on what it perceived to be politically expedient at the time. Burger was not considered a great leader of the Court. Some felt that he manipulated the outcome or assignment of opinions, while others charged that he breached the Court’s confidentiality by discussing pending cases with President Nixon.

Burger generally called for personal judicial restraint but presided over one of the most activist periods in the Court’s history, when it decided cases enhancing the rights of women, minorities, prisoners, and other disadvantaged groups. Ironically, Burger’s years on the Court are remembered for major rulings in areas praised by liberals. Burger’s seventeen years as chief justice is the longest tenure for any chief justice in the twentieth century and the third longest in the history of the Court. Where he had strong views and believed a fundamental value to be at stake, Burger often persisted in his views rather than compromising. His voting record was closest to that of Justice (later Chief Justice) William Rehnquist, the Court’s most conservative member.

Bibliography

Blasi, Vincent, ed. The Burger Court: The Counter-Revolution That Wasn’t. New Haven, Conn.: Yale University Press, 1983. Commentaries by various authors on areas of the law dealt with by the Burger Court. Identifies themes, trends, and problems in an honest assessment.

Lamb, Charles M., and Stephen C. Halpern, eds. The Burger Court: Political and Judicial Profiles. Urbana: University of Illinois Press, 1991. A collection of essays on justices of the Burger Court that provides a survey of the political and historical context in which the Court operated. Includes a chronology of key Court decisions during that era and data on each justice’s opinion writing and voting behavior. Bibliography.

Maltz, Earl M. The Chief Justiceship of Warren Burger, 1969-1986. Columbia: University of South Carolina Press, 2000. An analysis of the opinions issued by the Burger Court concerning economic regulations, freedom of speech, religion, race, abortion, and other issues.

Schwartz, Bernard. The Ascent of Pragmatism: The Burger Court in Action. Reading, Mass.: Addison Wesley, 1990. A behind-the-scenes discussion of the major Court rulings during the Burger era.

‗‗‗‗‗‗‗. Decision: How the Supreme Court Decides Cases. New York: Oxford University Press, 1996. A readable history of the Court, containing amusing anecdotes.

‗‗‗‗‗‗‗. A History of the Supreme Court. New York: Oxford University Press, 1993. Similar to Decision by the same author.

Woodward, Bob, and Scott Armstrong. The Brethren: Inside the Supreme Court. New York: Simon & Schuster, 1979. This book contains examples of the maneuvering, arguing, compromising, and politicking in the Court from the late 1960’s through the 1970’s.

Yarbrough, Tinsely E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2000. Aimed at general readers, this book includes essays on the justices, major decisions, and legacy of the Burger Court. It also features a number of reference materials, including a chronology and table of cases.