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Warren E. Burger

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 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. □

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Burger, Warren Earl

BURGER, WARREN EARL

Warren Earl Burger was a self-made man who rose from modest origins to become the fifteenth chief justice of the U. S. Supreme Court.

Burger was born September 17, 1907, in St. Paul, Minnestota, the fourth of seven children of Charles Burger and Katharine Schnittger Burger. His father worked as a railroad cargo inspector and traveling salesman, and the family lived on his limited income. Burger began delivering newspapers at the age of nine to help with family finances. At Johnson High School in St. Paul, he participated in music, sports, student government, and the student newspaper. Princeton University offered him a partial scholarship, but because of his family's limited resources, he was unable to accept it. Instead, he took extension courses through the University of Minnesota from 1925 to 1927 and then attended night classes at St. Paul College of Law (now william mitchell College of Law). Throughout college and law school, Burger supported himself by working as an insurance agent. He earned his bachelor of laws degree, magna cum laude, in 1931.

Burger was admitted to the Minnesota bar in 1931, then entered private practice in St. Paul with Boyesen, Otis, and Faricy. He became a partner in 1935, and the firm was renamed Faricy, Burger, Moore, and Costello. Burger concentrated his practice in corporate law, real estate, and probate law. At the same time, he became involved in politics, and in 1934 he helped organize the Minnesota Young Republicans.

Burger was rejected for military service in world war ii because of a spinal injury and instead served on the Minnesota Emergency War Labor Board. After the war he returned to his law practice and became more active in politics. He had played an important part in Harold E. Stassen's successful campaigns for governor of Minnesota in 1938, 1940, and 1942, and acted as floor manager for Stassen's presidential bids at the 1948 and 1952 Republican conventions. These activities brought him to the attention of prominent Republicans. In 1952 he was named assistant attorney general in charge of the Justice Department's Civil Division, which handled all civil cases except antitrust and land litigation.

Burger's career as a jurist began when he was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1956. He quickly established his credentials as a law-and-order judge, leading the conservative faction of the court to numerous decisions that favored police officers and prosecutors and curbed the rights of criminal defendants.

"Freedom of speech carries with it some freedom to listen."
—Warren Burger

Burger served on the D.C. Circuit court until 1969 when President richard m. nixon appointed him chief justice of the Supreme Court. In choosing Burger to replace earl warren, Nixon was fulfilling a campaign promise to restrain the Court, which was, according to him, favoring the criminals in U.S. society. Burger's ethical record was a major consideration in his nomination, and his opposition to judicial activism (a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decision, usually with the suggestion

that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent), and the expansion of civil rights and liberties made him what Nixon was looking for, a conservative antidote to the activist liberalism of the warren court.

However, the swift and certain counterrevolution that Nixon and others expected from the Burger Court never materialized. Although the Court diluted some earlier liberal decisions, particularly in the area of criminal procedure, it stopped far short of overruling them. And although the Burger Court was far less sympathetic to the rights of criminal defendants than the Warren Court had been, it established no clear pattern of repudiating the earlier doctrines. In some areas, such as affirmative action and desegregation, the Burger Court continued in the direction set by the Warren Court, and Burger often cast the swing vote that tipped the balance in favor of the liberals' position. The Burger Court's decision in roe v. wade (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]) established a constitutional right to privacy and made abortion legal. Yet Burger refused to support a movement to give gender classifications the same level of scrutiny used for racial discrimination. When viewed as a whole, the record shows that Burger was an enigmatic and unpredictable justice but that he generally stayed the course set by his predecessor. In fact, the Burger Court never directly overruled any major doctrine of the Warren years.

Burger was satisfied with his reputation as a centrist. "It's always been somewhat comforting to know," he once told an interviewer, "that I have been castigated by so-called liberals for being too conservative and castigated by socalled conservatives for being too liberal. Pretty safe position to be in."

Burger left his personal imprint on several important areas of the law. His 1973 opinion in miller v. california (413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]) established the use of "contemporary community standards" in determining whether material is obscene. He authored key decisions interpreting the free speech and free press guarantees of the first amendment, including Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), a 1976 decision prohibiting prepublication restraints to protect criminal defendants from negative pretrial publicity. Writing for the majority, Burger declared that "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." Burger also delivered the opinion invalidating the legislative veto (I.N.S. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 [1983]), thus preventing Congress from blocking presidential action without passing a law.

Burger's most famous criminal opinion was united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), in which he ordered the embattled president, then deeply enmeshed in the watergate scandal, to release to Special Prosecutor leon jaworski the tape recordings that implicated the president in the Watergate cover-up. Nixon's resignation was a direct result of Burger's ruling.

One of Burger's goals as chief justice was to modernize and streamline the courts to make them more accessible and functional, and he worked tirelessly toward that end. Burger originated the idea of employing professional court administrators, implemented continuing education for judges, and improved coordination between federal and state courts. In addition, he was noted for his outspoken criticism of ill-prepared litigators who use the courts for what he called on-the-job training.

Burger retired from the bench in 1986 to chair the commission honoring the two hundredth anniversary of the signing of the Constitution, which occurred on his eightieth birthday, September 17, 1987. He ended his last day on the bench without fanfare, simply announcing that the Court had completed its term and would recess until the first Monday in October. Asked about his future plans, he said, "I have a lot of other things I want to do. … I never had any ambition to be a judge. I loved practicing law. If tradition didn't prohibit it, I'd love to go back to practicing law." Upon his retirement, one of his law clerks commented that Burger's most important legacy may be that "he kept most of society's problems truly in balance."

further readings

Matlz, Earl M. 2000. The Chief Justiceship of Warren Burger, 1969–1986. Columbia, S.C.: Univ. of South Carolina Press.

Reske, Henry J. 1995. "The Diverse Legacy of Warren Burger." ABA Journal 81 (August).

Significant Supreme Court Opinions of the Honorable Warren E. Burger, Chief Justice of the United States. 1984. Manila, Philippines: Philippine Bar Association.

cross-references

Criminal Procedure; Freedom of Speech; Freedom of the Press; Obscenity.

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Burger, Warren

Warren Burger

Born: September 17, 1907
St. Paul, Minnesota
Died: June 25, 1995
Washington, D.C.

American Supreme Court justice

Warren Burger worked his way through law school. Through hard work, political connections, and a firm belief in law and order, he became chief justice of the U.S. Supreme Court from 1969 to 1986. In addition to leading the court in a series of famous decisions, he called for changes to improve the court system, including better training and education for lawyers and judges.

An early interest in law

Warren E. Burger was born on September 17, 1907, in St. Paul, Minnesota. He was the fourth of seven children born to Charles Joseph Burger, a railroad cargo inspector and traveling salesman, and Katherine (Schnittger) Burger, a homemaker. The family struggled to make ends meet, and by age nine Burger was delivering newspapers to help out. As a fourth-grader, he became ill and missed a year of school. During this time, he began reading law books and biographies of American historical figures.

Unable to attend Princeton because of his family's limited resources, Burger took 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 law degree from St. Paul College of Law in 1931. He then joined a law firm in St. Paul. In addition to handling a variety of civil and criminal cases, he taught contract law at St. Paul College of Law for a dozen years. On November 8, 1933, he married Elvera Stromberg, a fellow student from the University of Minnesota.

Political career

Burger became active in Republican politics and helped organize the Minnesota Young Republicans in 1934. He played an important role in the successful 1938 campaign for governor of Harold Stassen (19072001). At both the 1948 and 1952 Republican National Conventions, Burger acted as a manager for Stassen's unsuccessful presidential campaign. During the 1952 gathering Burger supported Dwight D. Eisenhower (18901969), helping him win the presidential election.

After the election President Eisenhower made Burger head of the Justice Department's Civil Division. Burger supervised a staff of approximately 180 lawyers. Although he had almost no experience in maritime law (law involving goods that are transported on the seas), Burger successfully handled several cases involving shipping for the government and even helped end a dockworker's strike on the East Coast in 1953.

Law and order judge

In 1955 Eisenhower named Burger to the U.S. Court of Appeals for the District of Columbia. While on that bench, Burger wrote several articles and gave lectures on a variety of topics. His opinions on criminal cases attracted attention. He said that confessions should be admitted into evidence even when the police have broken legal rules in obtaining them. He also argued that physical evidence should be allowed even if it has been obtained through forcible entry (forced entry without legal permission).

During the 1968 presidential campaign, Richard Nixon (19131994) 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." In other words, the court was making decisions that made it difficult to enforce laws and was thus helping criminals. He promised, if elected, to ensure that the court would no longer stand in the way of law enforcement (the people and government agencies that work to catch and punish criminals). The victorious Nixon's first step toward that goal was appointing Burger to succeed Earl Warren (18911974) as chief justice. In Burger's most famous criminal case, the loser was the president. In 1974 Burger ordered Nixon to turn over tape recordings to Watergate special prosecutor Leon Jaworski (19051982). These tapes contained evidence that Nixon had committed a crime. This ruling led directly to the president's decision to leave office before the end of his term.

In more routine criminal cases, Burger as chief justice was everything Nixon had hoped for. Burger led the court in a series of decisions that went against Warren court rulings. In Harris v. New York (1971), he announced that a statement obtained without reading a suspect his or her rights as required by Miranda v. Arizona (1966) could be used in court cases. Burger also helped give new life to the death penalty, which had been legalized again by the court in 1976 but was rarely carried out. With the chief justice lashing out at lawyers who used whatever methods they could to keep their clients alive, the Supreme Court rejected almost all appeals in such cases. (In an appeal, a case or a decision in a case is reviewed by a higher court.) Executions began to occur with greater frequency.

Civil rights and liberties

Burger was less sympathetic toward civil liberties claims than Earl Warren had been. Despite having worked in Minnesota with groups seeking to improve race relations, his rulings on civil rights were inconsistentsome for, some against. Burger's decisions on matters involving the First Amendment's establishment of religion clause were also inconsistent. He urged strict separation between church and state in one case involving state funding to assist religious schools, but in two other cases he supported the presence of religion in state functions: He upheld Nebraska's practice of opening legislative sessions with a prayer delivered by a state-paid Protestant chaplain, as well as the right of the town of Pawtucket, Rhode Island, to display a nativity scene in front of its city hall.

Burger also made it more difficult for civil rights and civil liberties claims to be decided on in federal court. The Burger court increased the number of officials who could not be sued (have a law suit brought against them) for damages (payment to a person or people who suffered a loss or an injury) for violating citizens' constitutional rights. The court also made it more difficult for citizens to file class-action suits, lawsuits in which one or more persons sue on behalf of a large group whose members have suffered an injustice or inequality.

Legacy of reform

Despite being less receptive to civil rights and civil liberties claims, the Burger court was not as different from the Warren court as some people expected it to be. Although often critical of the work of the Warren court, the Burger court did not undo it. None of the Warren court's major decisions was reversed. Even in the area of criminal law, the Burger court limited the effect of, rather than overturned, Warren court rulings.

After seventeen years on the court Burger had been responsible for many reforms and improvements in the justice process. At his suggestion many courts began to employ professional administrators (people who supervise the way a court runs), and an institute was set up to train them. Burger was in favor of continuing education for judges. His attacks on the abilities of trial lawyers inspired improvements in their training. He also improved the working relationship between federal courts and state courts that served the same geographic areas. In 1986 Burger resigned as chief justice to work full time as head of the U.S. Constitution Bicentennial Commission. He was also chancellor, or chief officer, of the College of William and Mary, from 1986 to 1993. Warren Burger died in Washington, D.C., on June 25, 1995.

For More Information

Blasi, Vincent. The Burger Court: The Counter-Revolution That Wasn't. New Haven, CT: Yale University Press, 1983.

Funston, Richard Y. Constitutional Counterrevolution? The Warren Court and the Burger Court: Judicial Policy Making in Modern America. Cambridge, Mass.: Schenkman Pub. Co., 1977.

Woodward, Bob and Scott Armstrong. The Brethren. New York: Simon and Schuster, 1979.

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Burger, Warren Earl

Warren Earl Burger, 1907–95, American jurist, 15th 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.

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Burger, Warren Earl

Burger, Warren Earl (1907–95) Chief justice of the US Supreme Court (1969–86). He served as a judge of the US Court of Appeals in Washington, D.C. (1956–69), before his appointment as chief justice. He led a court that reversed or limited liberal decisions. In Gregg v. Georgia (1976), capital punishment for murder was declared constitutional.

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