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Warren E. Burger

 
US Supreme Court: Warren Earl Burger

(b. St. Paul, Minn., 17 Sept. 1907; d. Washington, D.C., 25 June 1995; interred Arlington National Cemetery, Arlington, Va.), chief justice, 1969–1986. Burger, the fifteenth chief justice, was a self‐made man. Of Swiss and German ancestry, he grew up in modest circumstances. While selling insurance during the day, Burger attended school in the evening: two years at the University of Minnesota and four at St. Paul College of Law (now William Mitchell College of Law), where he graduated in 1931 magna cum laude.

Burger practiced law with Boyesen, Otis & Faricy in St. Paul from 1931 to 1953, primarily handling corporate, real estate, and probate matters. He was also involved in civic and political activities, most notably as a backer of Minnesota Governor Harold Stassen's presidential bids. Burger served as Stassen's floor manager at the 1948 and 1952 Republican conventions, where he won the respect of national Republican leaders. When Dwight Eisenhower became president in 1953, Attorney General Herbert Brownell named Burger assistant attorney general in charge of the Claims Division (later the Civil Division).

From 1956 to 1969 Burger served on the U.S. Court of Appeals for the District of Columbia Circuit, among America's most influential courts. As a circuit judge, he attracted national attention from the bench and bar for his judicial administration and for his jousts with the civil libertarians on that talented but badly divided court. Moderately conservative in most matters, Burger led the wing of the court that opposed extending the rights of criminal defendants and modernizing the insanity defense, preferring instead to give considerable leeway to police, prosecution, and trial judges.

Burger's appointment as chief justice by Richard Nixon became possible after Lyndon Johnson's nominee, Associate Justice Abe Fortas, failed to win confirmation. By the time Nixon focused attention on the vacancy (May 1969), Fortas had resigned from the Court following accusations of improprieties. Burger was chosen because of his judicial experience, his opposition to decisions of the Warren Court on criminal procedures, his criticism of judicial activism, and because his career was free of ethical blemishes.

Contrary to expectations, while Burger served as chief justice, the Supreme Court consolidated most of the major initiatives of the Warren Court (such as civil rights and reapportionment), although the pace of change became more moderate. The Court recognized new rights and opened to judicial exploration such areas as gender discrimination, abortion, affirmative action, and welfare rights. Burger was among the least enthusiastic of the justices regarding these trends, but was at the forefront when the Court reversed direction in the criminal area, cut back access of litigants to the federal courts, and demonstrated more sensitivity to traditional principles of federalism than had Warren's Court.

Among twentieth‐century chief justices, Burger appears to have been considerably less successful in guiding the other justices to jurisprudential results he favored than either Earl Warren or William Howard Taft had been. His colleagues William J. Brennan, Jr., and William H. Rehnquist were far more influential with their fellow justices, and Lewis Powell, Jr., in a different way, left a greater imprint on constitutional jurisprudence. Burger was unable to take advantage of his allies within the Court, the relatively quiescent political environment, or the absence for much of his tenure of problems caused by aging or cantankerous justices. Within the Court, he appears to have been more pugnacious than conciliatory. Throughout his tenure, there were leaks to the press—some clearly from his colleagues—indicating dissatisfaction with his leadership. He does not seem to have been successful in managing the conference of the justices, and individual statements of opinion proliferated to an extent not seen since before 1800. Burger himself was less willing than any chief justice except Harlan F. Stone to suppress his own dissents to preserve the appearance of harmony.

As a judge, Burger was not of the first rank, but his work was much better than contemporary critics allowed and not recognizably different in craftsmanship from that of most of his colleagues. Not a man given to inner agonies, Burger usually was quite clear as to what he thought the law was. His opinions were generally short, fact‐oriented, straightforward, and clearly written.

Burger's opinions of greatest importance are those dealing with separation of powers. His opinion for the unanimous Court in United States v. Nixon (1974) rejected Nixon's claim of executive privilege and ordered him to turn over tapes of conversations with aides for use in a criminal trial, but also recognized a presumptive privilege for presidential conversations. Generally, Burger's approach to separation of powers was formalistic, stressing the separateness of each branch and the supremacy of each within its own assigned sphere. He wrote the opinion in Immigration and Naturalization Service v. Chadha (1983), invalidating the legislative veto. His final opinion, Bowsher v. Synar (1986), held the Gramm‐Rudman‐Hollings budget‐cutting law to be unconstitutional because it assigned executive functions to the comptroller‐general, who is removable by Congress.

Personally critical of the media and extremely sensitive to press criticism, Burger wrote a number of important opinions upholding First Amendment claims. Among them were Nebraska Press Association v. Stuart (1976), in which the Court held that the protection against prior restraints makes the use of “gag” orders in a criminal trial a last resort, and Miami Herald Publishing Co. v. Tornillo (1974), which invalidated a Florida statute requiring newspapers that had assailed the character of a political candidate to afford free space to the candidate for reply. However, Burger rejected the view that the First Amendment guarantees the press a right of access to sources of information broader than that accorded to members of the general public, the right not to divulge sources to a grand jury, or immunity from police searches. ()

Burger was by no means antagonistic to the civil rights heritage of the Warren Court, but he was far more cautious in employing judicial power to force integration. He spoke for a unanimous Court in Swann v. Charlotte‐Mecklenburg Board of Education (1971), which affirmed a district court order to redraw attendance zones and to bus students to achieve a racial mix at each school approximating the racial composition of the entire district. In Bob Jones University v. United States (1983), he rejected a position of the Reagan administration by holding that the Internal Revenue Service has the authority to deny tax exemptions to private schools—even schools run by religious organizations—that discriminate on the basis of race. On the other hand, writing for a closely divided court in Milliken v. Bradley (1974), he held that even though the Detroit school system was unconstitutionally segregated, the judiciary had no power to order an integration plan that would include suburban schools absent proof that interdistrict segregation was the product of race‐conscious gerrymandering. No enthusiast where affirmative action was concerned, Burger still wrote the opinion in Fullilove v. Klutznick (1980) upholding congressional power to require 10 percent of the funds in a public works job bill to be set aside for awards to minority businesses.

The nonjudicial aspects of the office of chief justice were well suited to Burger's abilities and temperament, and to this dimension of his role he brought enormous energy, forcefulness, tenacity, and the willingness to risk controversy. Like Taft, Burger saw his office as a place to promote reform in the administration of justice, and, like Taft, he was a conservative reformer, primarily concerned with the traditional agenda of limiting high costs and long delays. Burger also saw his office as a “bully pulpit” from which to call attention to the problems of state courts. He had much to do with the founding of the Institute for Court Management, the National Center for State Courts, and the annual Brookings Seminars at which leaders of the three branches meet to discuss problems of judicial reform. He pressed hard but with limited success for reforms in the corrections process but made somewhat more headway in pressing for upgrading the quality of trial attorneys.

During Burger's tenure, new technologies, from copying machines to computers, were installed in the Court's offices, its personnel practices were overhauled, and a small central legal staff was created. The Court was also made more accessible to scholars and the public. Burger was unsuccessful in persuading Congress either to create a temporary national court of appeals to offer some relief to the Supreme Court or to increase federal appellate capacity (see Judicial Power and Jurisdiction). Although the time spent on these efforts and the ceremonial aspects of his office may have undermined Burger's leadership on the Court, no one could gainsay the deep commitment he brought to his work, his profound desire to measure up to his predecessors, or the fondness with which he was regarded by his staff. Deeply concerned about the importance of educating the public about the Constitution, Burger retired as chief justice in 1986 to give full time to his position as chairman of the Commission on the Bicentennial of the U.S. Constitution. He undertook no further judicial work after he left the bench.

See also Chief Justice, Office of the; History of the Court: Rights Consciousness in Contemporary Society.

See also Speech and the Press.

Bibliography

  • Bernard Schwartz, The Ascent of Pragmatism: The Burger Court in Action (1990).
  • Charles M. Lamb and Stephen C. Halpern, eds., The Burger Court: Political and Social Profiles (1991)

— Jeffrey B. Morris

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Biography: Warren E. Burger
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As Chief Justice of the U.S. Supreme Court (1969-1986), Warren E. Burger (born 1907) was tough on criminal defendants and generally negative toward civil rights and civil liberties claims, but did much to improve the administration of justice.

During the 1968 presidential campaign, Richard Nixon told a public worried about the rising crime rate that the Supreme Court was "seriously hamstringing the peace forces in our society and strengthening the criminal forces." He promised, if elected, to ensure that the Court would no longer hamper law enforcement. The victorious Nixon's first step toward that goal was appointing Warren E. Burger to succeed Earl Warren as chief justice. Liberals worried that Burger would soon sweep away the many legal reforms initiated during the Warren era, but their fears proved unfounded. Although more conservative than his predecessor, he led no counterrevolution, but rather made his mark as an administrative reformer.

Indeed the contrast between the Burger and Warren courts was less striking than that between the humble origins of the new chief and the background of the typical appointee. Most members of the Court have come from prominent or well-to-do families and have attended prestigious colleges and law schools. Burger, though, was the son of a railroad cargo inspector and travelling salesman. He was born on September 17, 1907, in St. Paul, Minnesota, and grew up in modest circumstances. By age nine he was delivering newspapers to help his family financially. When Burger graduated from high school, where he was student council president and engaged in a wide range of extracurricular activities, Princeton offered him a partial scholarship. Because of his family's limited resources, he had to decline it. Burger took extension courses at the University of Minnesota for two years and then enrolled in a night law school. Combining study with work as a life insurance salesman, he earned his LL.B. magna cum laude from St. Paul College of Law in 1931.

After admission to the bar, Burger joined the St. Paul law firm of Boyesen, Otis & Faricy. In 1935 he became a partner in the successor firm of Faricy, Burger, Moore & Costello, with which he remained affiliated until 1953. In addition to handling a variety of civil and criminal cases, he taught contract law at his alma mater for a dozen years.

Political Career

Burger was active in Republican politics. He helped to organize the Minnesota Young Republicans in 1934 and played an important role in Harold Stassen's successful 1938 campaign for governor. Rejected for World War II military service because of a spinal injury, he served from 1942 to 1947 on his state's Emergency War Labor Board. At both the 1948 and 1952 Republican National Conventions, Burger acted as floor manager for Stassen's presidential campaign. At a crucial moment during the 1952 gathering he threw his support to Gen. Dwight Eisenhower, helping Ike to win the nomination on the first ballot.

After the election President Eisenhower made him head of the Justice Department's Civil Division. Assistant Attorney General Burger supervised a staff of about 180 lawyers who handled all civil cases except antitrust and land litigation. When Solicitor General Simon E. Sobeloff refused to defend the dismissal of Yale professor John Peters from a part-time position with the Public Health Service as a security risk, Burger volunteered to argue the case before the Supreme Court. He lost and, by involving himself in the matter, aroused the ire of liberals.

Law and Order Judge

Nevertheless, in 1955 Eisenhower named him to the U.S. Court of Appeals for the District of Columbia. While on that prestigious bench, Burger demonstrated a capacity for legal scholarship, writing several law review articles and lecturing on a variety of topics ranging from the insanity defense to judicial administration. His opinions in criminal procedure cases attracted more attention. They were consistently pro-prosecution. He urged that confessions be admitted into evidence even when the police who obtained them had violated legal rules requiring the prompt arraignment of suspects and that physical evidence not be excluded because it had been obtained through forcible entry. Pragmatic rather than legalistic, Judge Burger sought to ensure that the judiciary would not interfere with law enforcement.

He was just what Nixon wanted in a chief justice. Ironically, in Burger's most famous criminal case the loser was the president. In United States v. Nixon (1974) Burger ordered his patron to turn over to Watergate special prosecutor Leon Jaworski tape recordings, one of which contained unequivocal evidence that Nixon had committed the crime of obstruction of justice. This ruling led directly to the president's resignation.

In more routine criminal cases, Burger was everything Nixon had hoped for. He spent his first years on the Court dissenting as holdovers from the Warren era continued to expand the rights of defendants. When other Nixon appointees joined him on the bench, Burger launched a successful counterattack, which lasted from 1971 until 1976. It resulted in decisions partially undercutting Warren Court precedents, such as Harris v. New York (1971), in which he announced that a statement obtained without giving the warnings required by Miranda v. Arizona (1966) could be used to impeach a defendant's testimony. About 1977 the Burger Court's hostility toward the work of its predecessor seemed to subside, but the chief justice frequently dissented when it rendered decisions favorable to defendants. He also continued to criticize the "exclusionary rule," which made illegally obtained evidence inadmissible. Prodded by Burger, the Court returned to the attack in 1981. During the years that followed, it handed down decisions which, among other things, created significant exceptions to both the exclusionary rule and the requirement that police give suspects Miranda warnings before interrogating them.

During the same period, Burger also helped give new life to the death penalty, which for several years after the Court re-legalized it in 1976 had existed more in theory than in practice. With the chief justice lashing out at lawyers who resorted to endless legal maneuvering to keep their clients alive, the Supreme Court rejected almost all appeals in such cases. Executions began to occur again with relative frequency.

Civil Rights and Liberties

Besides being a law and order hard-liner, Burger also proved to be a conservative authoritarian. He believed "the community" (which he tended to equate with those having a bare majority in the legislature) had a right to impose its values on nonconforming individuals. Consequently, he was far less sympathetic toward civil liberties claims than Earl Warren had been.

That held for those claims based on the First Amendment's establishment of religion clause. In Lemon v. Kurtzman (1971) Burger announced a test for determining whether state attempts to subsidize parochial education violated that constitutional prohibition. This generated a collage of inconsistent decisions, striking down some and upholding others. The results of March v. Chambers (1983) and Lynch v. Donnelly (1984) were clearer but even more difficult to reconcile with the language of the establishment clause. In those cases Burger upheld respectively Nebraska's practice of opening legislative sessions with a prayer delivered by a state-paid Protestant chaplain and Pawtucket, Rhode Island's right to display a nativity scene in front of its city hall.

He was also, despite a background of service in Minnesota with groups seeking to improve race relations, an inconsistent supporter of claims based on the equal protection clause of the Fourteenth Amendment. Use of that provision against gender-based discrimination began with the Burger Court, and it was the chief justice who wrote the seminal opinion in Reed v. Reed (1971). On the other hand, he refused to support Justice William Brennan's effort to have the Court adopt for sex cases the same stringent constitutional test already employed in racial ones, and he accepted as valid policies which penalized pregnancy.

Also indicative of Burger's lack of sympathy for civil rights and civil liberties was his support of procedural innovations making it more difficult to litigate such claims in federal court. The Burger Court's decisions on such technical issues as standing, justicability, abstention, and the requirements for bringing class action suits all tended toward closing the courthouse door. In addition, the Court lengthened the list of officials immune from suits for damages for violating citizens' constitutional rights and expanded the "good faith" defense available to those who can still be sued.

Reformer or Counterrevolutionary?

Yet, despite being less receptive to civil rights and civil liberties claims, the Burger Court was not as different from the Warren Court as casual observers supposed. It was, for example, equally "activist." That is, it proved equally willing to substitute its own value judgments for those of popularly elected lawmakers. In Roe v. Wade (1973), for example, the Burger Court on tenuous constitutional grounds invalidated the states' abortion laws and spelled out precisely how they might regulate abortion in the future.

Furthermore, although often critical of its predecessor's work, the Burger Court did not undo it. Not a single one of the Warren Court's landmark decisions was reversed. Neither segregation, nor malapportioned legislatures, nor prayer in public schools became constitutional again. Even in the area of criminal procedure, the Burger Court limited the effect of, rather than overturned, Warren Court precedents.

Ironically, after 17 years on the Court the "conservative" chief justice had better credentials as a reformer than as a counterrevolutionary. Early in his tenure he launched a crusade to reshape and improve the administration of justice, which had broken down under the burden of a vastly expanded volume of litigation. At his urging many courts began to employ professional administrators, and an institute was set up to train them. Burger got continuing education for judges whose numbers had increased substantially, and his attacks on the competency of trial lawyers inspired innovations in the training of litigators. He also improved the coordination between federal and state courts serving the same geographic areas. In 1986 Warren Burger resigned as chief justice to spend full time as head of the U.S. Constitution Bicentennial Commission.

Further Reading

Although the literature on the Burger Court is extensive, that on Warren Burger himself is not. Andrew Norman, "Warren E. Burger," in The Burger Court 1969-1978, ed. Leon Friedman (1978) is a disappointing article which does no more than analyze Burger's work on the Supreme Court. Although poorly focused, Dennis E. Everette's "Overcoming Occupational Heredity on the Supreme Court," American Bar Association Journal (January 1980), is a spirited defense of Burger's humble origins. Charles M. Lamb analyzes his work on the court of appeals in "The Making of a Chief Justice: Warren Burger on Criminal Procedure, 1956-1969," Cornell Law Review (June 1975). Robert Douglas Chesler, "Imagery of Community, Ideology of Authority: The Moral Reasoning of Chief Justice Burger," Harvard Civil Rights/Civil Liberties Law Review (Summer 1983) is helpful in understanding Burger's negative attitude toward civil rights and civil liberties claims. Edward A. Tamm and Paul C. Reardon, "Warren E. Burger and the Administration of Justice," Brigham Young UniversityLaw Review (1981), is a good survey of Burger's efforts to promote judicial efficiency.

The book which provides the most insights into the inner workings of the Burger Court and the sometimes highhanded conduct of its chief justice is Bob Woodward and Scott Armstrong, The Brethren (1979), written by two investigative journalists. For scholarly evaluations of the Burger Court's decisions and direction, see Richard Y. Funston, Constitutional Counterrevolution? The Warren Court and the Burger Court: Judicial Policy Making in Modern America (1977); Vincent Blasi, editor, The Burger Court: The Counter-Revolution That Wasn't (1983); and Alpheus Thomas Mason, "Whence and Whither the Burger Court? Judicial Self Restraint: A Beguiling Myth," Review of Politics (January 1979). The Nation devoted its entire September 29, 1984, issue to an assessment of the Burger Court's first 15 years. The articles it contained examine numerous facets of the Court's work and are easy for readers with little legal background to understand.

Britannica Concise Encyclopedia: Warren Earl Burger
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(born Sept. 17, 1907, St. Paul, Minn., U.S. — died June 25, 1995, Washington, D.C.) U.S. jurist. He graduated with honours from St. Paul (now William Mitchell) College of Law in 1931, after which he joined a prominent law firm and became active in the Republican Party. He was appointed an assistant U.S. attorney general (1953) and named to the U.S. Court of Appeals for the District of Columbia (1955), where his conservative approach commended him to Pres. Richard Nixon, who nominated him for chief justice of the Supreme Court of the United States in 1969. Contrary to the expectations of some, he did not try to reverse the liberal decisions on civil-rights issues and criminal law made during the tenure of his predecessor, Earl Warren. Under his leadership, the court upheld the 1966 Miranda v. Arizona decision, permitted busing as a means of ending racial segregation in public schools, and endorsed the use of racial quotas in the awarding of federal grants and contracts. Burger voted with the majority in Roe v. Wade (1973). Keenly interested in judicial administration, he became deeply involved in efforts to improve the judiciary's efficiency. He retired in 1986 and was awarded the Presidential Medal of Freedom in 1988.

For more information on Warren Earl Burger, visit Britannica.com.

US Government Guide: Warren E. Burger, Chief Justice, 1969–86
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Born: Sept. 17, 1907, St. Paul, Minn.
Education: University of Minnesota, 1925–27; St. Paul College of Law, LL.B., 1931
Previous government service: assistant U.S. attorney general, Civil Division, 1953–56; judge, U.S. Court of Appeals for the District of Columbia, 1956–69
Appointed by President Richard Nixon May 29, 1969; replaced Chief Justice Earl Warren, who retired
Supreme Court term: confirmed by the Senate June 9, 1969, by a 74–3 vote; retired Sept. 26, 1986
Died: June 25, 1995, Washington, D.C.

Warren E. Burger worked hard to achieve an education. After high school, he worked at part-time jobs while going to college and law school in his home city of St. Paul, Minnesota. From 1931 to 1953, Burger practiced law and participated in Republican party politics in Minnesota. He attracted the attention of national Republican party leaders, and in 1953 President Dwight Eisenhower appointed Burger assistant attorney general of the United States.

In 1956, President Eisenhower named Burger to the U.S. Court of Appeals for the District of Columbia circuit. This position was a stepping-stone to the Supreme Court. In 1969, President Richard Nixon appointed Burger to be the 15th chief justice of the United States. He replaced Earl Warren, the strong leader of the Court during two decades of ground-breaking decisions that greatly expanded the legal opportunities and rights of minorities and individuals accused of crimes.

Chief Justice Burger tended to support the civil rights decisions of the Warren Court. However, in cases regarding the rights of criminal defendants, Burger tended to support the police and prosecutors. He believed that the Court under Earl Warren had moved too far in favor of supporting the rights of accused persons and criminals.

Burger's most important decision was in the case of United States v. Nixon (1974), when the Court turned down President Nixon's claim of executive privilege as a reason for withholding tape recordings of private White House conversations from criminal investigators. The Court ordered the President to turn over the tapes, a ruling that established an important limitation on the powers of the President. This decision also affirmed the primacy of the Supreme Court in the interpretation of the Constitution.

Chief Justice Burger retired in 1986 to become chairman of the Commission on the Bicentennial of the United States Constitution. His greatest achievements as chief justice were his improvements in the ways in which the federal judicial system carries out its work. He reorganized many procedures for keeping records and for carrying out more efficiently the business of the federal courts. But Chief Justice Burger, unlike his predecessor, Earl Warren, did not exercise a decisive influence on the opinions of his associate justices.

See also Chief justice; United States v. Nixon

Sources

  • Charles M. Lamb, “Chief Justice Warren E. Burger”, in The Burger Court: Political and Judicial Profiles, edited by Charles M. Lamb and Stephen C. Halpern (Urbana: University of Illinois Press, 1991)
US History Companion: Burger, Warren
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(1907-1995), lawyer and chief justice, U.S. Supreme Court. Burger attended the University of Minnesota and evening law classes at the St. Paul College of Law. He joined one of St. Paul's leading law firms and within five years had become a partner, specializing in corporate and real estate work. His work as floor manager for Harold Stassen's 1948 bid for the Republican presidential nomination caught the attention of other party leaders, including Herbert Brownell and Richard M. Nixon, and in 1953 Brownell appointed him assistant attorney general for the Civil Division. His legal competence and political conservatism won him respect within the Eisenhower administration.

Burger decided to return to private practice, but in 1956 Eisenhower nominated him to the Court of Appeals for the District of Columbia Circuit, considered by many the second most important court in the federal system. In the thirteen years he served on that court, Burger established a reputation as an articulate conservative who opposed the liberal tendencies of the Warren Court and of the majority on his own bench. In many areas, however, it would be fairer to characterize him as a progressive, willing to change with the times but in a thoughtful rather than a precipitous manner. He espoused, for example, a strong view of constitutionally protected privacy and personal autonomy, but articulated it in terms more familiar to conservatives than to liberals.

On one subject, however, Judge Burger increasingly stood apart from his brethren. The Warren Court's "due process revolution" increased the rights accorded to accused persons, and Burger, in opinions and speeches, argued that the law had tilted too far in favor of criminals. One of these speeches caught Nixon's attention; Burger appeared to be just the sort of person to carry out Nixon's campaign promise to put the Court back on a proper conservative path. On May 21, 1969, the president nominated Burger to succeed Earl Warren as chief justice of the United States.

Burger served from 1969 to 1986. During that time he proved unable to lead the Court, as Warren had done, or to influence its jurisprudential drift. It became one of the most factious courts in history, and Burger could not move it doctrinally to a more conservative position. In the one area where the Court did move to a more conservative stance, the rights of accused persons, the Warren Court had already begun that process by 1965.

But in such areas as separation of church and state, freedom of speech, federal power, and right of privacy, the Court remained fairly consistent with earlier doctrine. Despite some fears from liberals, the Burger Court continued the Warren Court's uncompromising stand against de jure segregation and approved affirmative action plans. The Court also handed down a number of decisions that undermined traditional discriminatory patterns against women.

Burger himself seemed to have no set voting pattern and often joined a majority only in order to be able to assign the opinion. Thus, although he originally opposed the decision in the 1973 abortion case, Roe v. Wade, he signed on with the majority to control who wrote the final opinion. Burger's major opinion was that handed down in the Nixon tapes case, which reasserted the judiciary's primacy in interpreting constitutional issues.

When he retired at the end of the October 1985 term, commentators gave him high marks for overhauling and modernizing the administrative apparatus of the federal court system, but poor grades as a chief justice. He apparently left no doctrinal legacy.

Bibliography:

Herman Schwartz, ed., The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986 (1987).

Author:

Melvin I. Urofsky

See also Supreme Court.


 
Columbia Encyclopedia: Warren Earl Burger
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Burger, Warren Earl, 1907-95, American jurist, fifteenth Chief Justice of the United States (1969-86), b. St. Paul, Minn. After receiving his law degree in 1931 from St. Paul College of Law (now Mitchell College of Law), he was admitted to the Minnesota bar and taught and practiced law in St. Paul. He was (1953-56) assistant attorney general in charge of the civil division of the Department of Justice before becoming judge of the U.S. Court of Appeals for the District of Columbia. Appointed to head the Supreme Court by President Nixon, and perceived as a conservative and an advocate of judicial restraint, Burger was less forceful than had been expected in limiting or reversing the liberal decisions of the court headed by his predecessor Earl Warren. He was a consistent advocate for administrative reform in the court system.
Quotes By: Warren E. Burger
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Quotes:

"We are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing electricians."

Wikipedia: Warren E. Burger
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Warren Burger


In office
June 23, 1969 – September 26, 1986
Nominated by Richard Nixon
Preceded by Earl Warren
Succeeded by William Rehnquist

Born September 17, 1907(1907-09-17)
Saint Paul, Minnesota
Died June 25, 1995 (aged 87)
Washington, DC
Alma mater University of Minnesota
William Mitchell College of Law
Religion Presbyterian
Signature

Warren Earl Burger (September 17, 1907 - June 25, 1995) was Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S. Supreme Court delivered a variety of transformative and controversial decisions on abortion, capital punishment, religious establishment, and school desegregation during his tenure.

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Early years

Burger was born in Saint Paul, Minnesota, one of seven children. His parents were of Swiss German descent. His grandfather, Joseph Burger, had emigrated from Switzerland and joined the Union Army when he was 14. Joseph Burger fought and was wounded in the Civil War, and was awarded the Medal of Honor.

Warren Burger grew up on the family farm near the edge of Saint Paul. He attended John A. Johnson High School, where he was president of the student council. He competed in hockey, football, track, and swimming. While in high school, he wrote articles on high school sports for local newspapers. He graduated in 1925.

That same year, Burger also worked with the crew building the Robert Street Bridge, a crossing of the Mississippi River in Saint Paul that still exists. Concerned about the number of deaths on the project, he asked that a net be installed to catch anyone who fell, but was rebuffed by managers. In later years, Burger made a point of visiting the bridge whenever he came back to town.

Education and early career

Burger attended night school at the University of Minnesota while selling insurance for Mutual Life Insurance. Afterward, he enrolled at William Mitchell College of Law (then the St. Paul College of Law), receiving his degree magna cum laude in 1931. He took a job at the firm of Boyensen, Otis and Faricy, initially owned by Sam Biglari (now known as Moore, Costello & Hart). In 1937, Burger served as the eighth president of the Saint Paul Jaycees. He also taught for twelve years at William Mitchell.

Politics

His political career began uneventfully, but he soon rose to national prominence. He supported Minnesota governor Harold E. Stassen's unsuccessful pursuit of the Republican nomination for president in 1948. In 1952, at the Republican convention, he played a key role in Dwight D. Eisenhower's nomination by delivering the Minnesota delegation. After he was elected, President Eisenhower appointed Burger as the Assistant Attorney General in charge of the Civil Division of the Justice Department.

In this role, he first argued in front of the Supreme Court. The case involved John P. Peters, a Yale University professor who worked as a consultant to the government. He had been discharged from his position on loyalty grounds. Supreme Court cases are usually argued by the Solicitor General, but he disagreed with the government's position and refused to argue the case. Burger lost the case. Shortly after, Burger appeared in a case defending the U.S. against claims from the Texas City ship explosion disaster, successfully arguing that the Federal Tort Claims Act of 1947 did not allow a suit for negligence in policy making; the U.S. won the case (Dalehite, et al., vs. United States 346 U.S. 15 (1953)). In 1956, Eisenhower appointed him to the U.S. Court of Appeals for the District of Columbia Circuit. He remained on the Court of Appeals for thirteen years.

National prominence

Painting of Burger

In 1968, Chief Justice Earl Warren announced his retirement after 15 years on the Court, effective on the confirmation of his successor. President Lyndon B. Johnson nominated sitting Associate Justice Abe Fortas to the position, but a Senate filibuster blocked his confirmation. With Johnson's term as President about to expire before another nominee could be considered, Warren remained in office for another Supreme Court term.

In 1969, President Richard M. Nixon nominated Burger to the Chief Justice position. Burger had first caught Nixon's eye when the magazine U.S. News and World Report had reprinted a 1967 speech that Burger had given at Ripon College, in which he compared the United States judicial system to those of Norway, Sweden, and Denmark:

I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity. [Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty. No nation on earth goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.

Through speeches like this, Burger became known as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the U.S. Constitution. Nixon's agreement with these views, being expressed by a readily confirmable, sitting federal appellate judge, led to the appointment. The Senate confirmed Burger to succeed Warren, who in turn swore in the new chief on June 23, 1969. In his presidential campaign, Nixon had pledged to appoint a strict constructionist as Chief Justice.

According to President Nixon's memoirs, he had asked Justice Burger in the spring of 1970 to be prepared to run for President in 1972 if the political repercussions of the Cambodia invasion were too negative for him to endure. A few years later, in 1971 and 1973, Burger was on Nixon's short list of vice-presidential replacements for Vice President Spiro Agnew, along with John Connally, Ronald Reagan, and Nelson Rockefeller.

Chief Justice

When Burger was nominated for the Chief Justiceship, many[who?] expected that the Burger Court would rule markedly differently from the Warren Court and might in fact overturn controversial Warren Court precedent. (It was even noted at the time that, by coincidence, Burger's first and middle names were the reverse of Earl Warren's name.) By the early 1970s, however, it became apparent that Burger was not going to turn the clock back on the rulings of the Warren Court and in fact might extend some Warren Court doctrines.[citation needed]

The Court issued a unanimous ruling, Swann v. Charlotte-Mecklenburg Board of Education (1971) supporting busing to reduce de facto racial segregation in schools. In United States v. U.S. District Court (1972) the Burger Court issued another unanimous ruling against the Nixon Administration's desire to invalidate the need for a search warrant and the requirements of the Fourth Amendment in cases of domestic surveillance. Then, only two weeks later in Furman v. Georgia (1972) the court, in a 5-4 decision, invalidated all death penalty laws then in force, although Burger dissented from the decision. In the most controversial ruling of his term, Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning abortions before the point of viability. However, Burger abandoned Roe v. Wade by the time of Thornburgh v. American College of Obstetricians and Gynecologists.

On July 24, 1974, Burger led the court in a unanimous 8–0 decision in United States v. Nixon. This was President Nixon's attempt to keep several memos and tapes relating to the Watergate scandal private. As documented in Woodward and Armstrong's The Brethren and elsewhere, Burger's original feelings on the case were that Watergate was merely a political battle; he "didn't see what they did wrong."[1] The actual final opinion was largely Justice Brennan's work, though each justice wrote at least a rough draft of a particular section.[2][3] Burger was originally to vote in favor of Nixon, but tactically changed his vote in order to assign the opinion to himself, and to restrain the opinion's rhetoric.[4] Burger's first draft of the opinion wrote that executive privilege could be invoked when it dealt with a "core function" of the presidency, that in some cases the executive could be supreme.[5] However, the other justices in the Supreme Court were able to convince Burger to excise that language from the opinion - the judicial branch alone would have the power to determine whether something qualifies to be shielded under executive privilege.[6]

Burger was a strong opponent of gay rights as he wrote a famous concurring opinion in the Court's 1986 decision upholding a Georgia law criminalizing sodomy (Bowers v. Hardwick), in which Burger purported to marshal historical evidence that laws criminalizing homosexuality were of ancient vintage. Chief Justice Burger pointed out that the famous legal author William Blackstone wrote that sodomy was a "'crime against nature'...of 'deeper malignity than rape,' a heinous act 'the very mention of which is a disgrace to human nature' and 'a crime not fit to be named'" (106 S. Ct. at 2841).

With Betty Ford between them, Chief Justice Burger (R) swears in President Gerald Ford (L) following the resignation of President Richard Nixon.

Burger also emphasized the maintenance of checks and balances between the branches of government. In the 1983 case of Immigration and Naturalization Service v. Chadha, he held, for the majority, that Congress could not reserve a legislative veto over executive branch actions.

On issues involving criminal law and procedure, Burger remained reliably conservative. He joined the Court majority in voting to reinstate the death penalty in Gregg v. Georgia (1976), and, in 1983, he vigorously dissented from the Court's holding in the case of Solem v. Helm that a sentence of life imprisonment for issuing a fraudulent check in the amount of $100 constituted cruel and unusual punishment.

Eschewing any need to dominate the court, Burger poured his energy into the other role of the Chief Justice, administering the nation's legal system. He initiated the National Center for State Courts[1], which is now located in Williamsburg, Virginia, the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards. [7][8] He initiated the annual State of the Judiciary speech given by the Chief Justice to the American Bar Association. Some detractors thought his emphasis on the mechanics of the judicial system trivialized the office of Chief Justice.

Burger was the subject of internal controversy on the Supreme Court throughout his tenure. Woodward and Armstrong's The Brethren depicted Burger as a weak chief justice who was not seriously respected by his colleagues due to alleged personal eccentricity and lack of legal acumen. Woodward and Armstrong's sources indicated that some of the other justices were annoyed by Burger's practice of switching his vote in conference, or simply not announcing his vote, in order that he be able to control opinion assignments. "Burger repeatedly irked his colleagues by changing his vote to remain in the majority, and by rewarding his friends with choice assignments and punishing his foes with dreary ones."[9] Burger would also try to influence the course of events in a case by circulating a preemptive opinion.[10]

Burger was not seen as the best leader of the Supreme Court; the court was described as his "in name only."[11] TIME Magazine would call him "plodding" and "standoffish,"[11] as well as "pompous," "aloof," and unpopular.[9] Burger was a constant irritant on the Court's group dynamic, according to The New York Times' Linda Greenhouse.[12] Jeffrey Toobin wrote in his book The Nine that by the time of his departure in 1986, Burger had alienated all of his colleagues.[13] In particular, Potter Stewart (who had been considered a candidate to follow Warren as Chief Justice) was so discontented with Burger that he became the primary source for Woodward and Armstrong when writing The Brethren.

Greenhouse points to the case of Immigration and Naturalization Service v. Chadha as evidence of Chief Justice Burger's "foundering leadership."[14] Burger would cause the case to be delayed for over twenty months, despite there having been five votes to affirm the appeals court's finding of unconstitutionality after the case was argued before the Supreme Court: Blackmun, Marshall, Brennan, Powell, and Stevens.[15] Burger did not allow an opinion to be assigned, first by asking for a special conference on the case, and then by delaying the case for reargument when that conference fell through (even though he never held a formal vote on holding the case over for reargument).[16]

Retirement, death and legacy

Burger retired on September 26, 1986, in part to lead the campaign to mark the 1987 bicentennial of the United States Constitution, at which time he commissioned the construction of the Constitution Bicentennial Monument (The National Monument to the U.S. Constitution). Upon his retirement he had served longer than any Chief Justice appointed in the 20th century.[17] In 1988, he was awarded the prestigious United States Military Academy's Sylvanus Thayer Award as well as the Presidential Medal of Freedom.

Burger died in 1995 of congestive heart failure at the age of 87 in Washington, D.C. He drafted his own one-page will. All of his papers were donated to the College of William and Mary, where he formerly served as Chancellor; however, they will not be open to the public until 2026. Burger’s casket was displayed in the Great Hall of the U.S. Supreme Court Building. This honor had only been bestowed on Chief Justice Earl Warren and Justice Thurgood Marshall. His remains are interred at Arlington National Cemetery.[18]

As Chief Justice, Burger was instrumental in founding the Supreme Court Historical Society and was its first president. Burger is often cited as one of the foundational proponents of Alternative Dispute Resolution (ADR), particularly in its ability to ameliorate an overloaded justice system. In a speech given in front of the American Bar Association, Justice Burger lamented the state of the justice system in 1984, "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected."[19] The Warren E. Burger Federal Courthouse[20] in St. Paul, Minnesota and the Warren E. Burger Library[21] at his alma mater William Mitchell College of Law are named in his honor.

Personal life

Burger married Elvera Stromberg in 1933. They had two children, Wade Allen Burger and Margaret Elizabeth Burger. Elvera Burger died on May 30, 1994 at the age of 86.

See also

Notes

  1. ^ Eisler, Kim Isaac (1993). A Justice for All: William J. Brennan, Jr., and the decisions that transformed America. Page 251. New York: Simon & Schuster. ISBN 0671767879
  2. ^ Eisler, 251-253
  3. ^ Woodward and Armstrong, The Brethren
  4. ^ Eisler, 252
  5. ^ Eisler, 254
  6. ^ Eisler, 254-255
  7. ^ Parsons, Edward, Warren E. Burger biography at Find a Grave.
  8. ^ Christensen, George A., Journal of Supreme Court History Volume 33 Issue 1, Pages 17 - 41 (February 19, 2008), Here Lies the Supreme Court: Revisited, University of Alabama.
  9. ^ a b http://www.time.com/time/magazine/article/0,9171,961645-7,00.html
  10. ^ Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 157.
  11. ^ a b http://www.time.com/time/magazine/article/0,9171,961645-1,00.html
  12. ^ Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 234.
  13. ^ Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. Doubleday, 2005.
  14. ^ Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 154.
  15. ^ Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 155.
  16. ^ Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Pages 156-157.
  17. ^ Supreme Court History, the Burger Court at Supreme Court Historical Society.
  18. ^ Warren E. Burger memorial at Find a Grave
  19. ^ http://www.fsmlaw.org/fsm/decisions/vol3/3fsm015_017.htm
  20. ^ Warren E. Burger Federal Courthouse Building.
  21. ^ Warren E. Burger Library.

References

Further reading

  • Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3. 
  • Blasi, Vincent (1983). The Burger Court : the counter-revolution that wasn't (3rd ed.). New Haven: Yale University Press. ISBN 0300029411 ISBN 9780300029413. 
  • Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267. 
  • Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774. 
  • Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356. 
  • Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543. 
  • Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761. 

External links

Legal offices
Preceded by
Harold Montelle Stephens
Judge of the U.S. Court of Appeals for the D.C. Circuit
1956–1969
Succeeded by
Malcolm Richard Wilkey
Preceded by
Earl Warren
Chief Justice of the United States
1969–1986
Succeeded by
William Rehnquist
Honorary titles
Preceded by
Alvin Duke Chandler
Chancellor of The College of William & Mary
1986–1993
Succeeded by
Margaret Thatcher

 
 

 

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