Warren E. Burger

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 University Law 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.