Burger, Warren Earl

(b. 17 September 1907 in Saint Paul, Minnesota; d. 25 June 1995 in Washington, D.C.), lawyer, jurist, and chief justice of the United States (1969–1986) who helped to move the Supreme Court away from its liberalism of the 1960s.

Burger was one of seven children of Charles Joseph Burger, a farmer, rail-cargo inspector, and traveling salesman, and Katharine Schnittger, a homemaker. Burger graduated from John A. Johnson High School in Saint Paul in 1925 and attended night school at the University of Minnesota for two years. In 1927 he enrolled in night classes at the Saint Paul College of Law (now the William Mitchell College of Law); he supported himself by selling insurance during the day and received his LL.B. degree in 1931 with high honors. While practicing with the law firm of Boyesen, Otis, and Faricy, Burger served on the faculty of the Saint Paul College of Law for twelve years. Between 1935 and 1953 he was a partner in the successor firm of Faricy, Burger, Moore, and Costello, arguing more than a dozen cases before the U.S. Supreme Court. He married Elvera Stromberg on 8 November 1933; they had one son and one daughter.

A large, handsome man with a baritone voice and a pleasant demeanor, Burger became actively involved in politics and community affairs while practicing law in Saint Paul. Associating with the moderate wing of the Republican Party, he began a close affiliation with Harold Stassen in 1938, when Stassen was elected governor of Minnesota. Burger was a Stassen adviser and fund-raiser for fifteen years. He managed Stassen’s unsuccessful bids for the Republican presidential nomination in 1948 and again in 1952. At the 1948 National Republican Convention, Burger impressed several party leaders, including Richard M. Nixon and Herbert Brownell, both of whom later boosted his judicial career.

When Stassen failed to gain the 1952 Republican nomination, Burger helped to throw the crucial support of the Minnesota delegation to Dwight D. Eisenhower instead of Robert A. Taft. This influenced Burger’s appointment in 1953 as assistant attorney general in charge of the Justice Department’s Civil Division. In Washington he earned a reputation for dealing with maritime and labor-law litigation. One highly publicized case before the Supreme Court involved the dismissal of a government consultant, Dr. John P. Peters, on loyalty grounds.

Although he enjoyed his experience at the Justice Department, Burger resigned after two years to return to St. Paul. He soon went back to Washington, D.C., however, when in 1956 he accepted a seat on the U.S. Court of Appeals for the District of Columbia Circuit, often called the second most important court in the country. A hardworking conservative jurist over the next thirteen years, he was an outspoken critic of some of the Supreme Court’s most famous criminal procedure decisions of the 1960s, while Chief Justice Earl Warren presided over the High Court. Burger was also often in disagreement with his more liberal court of appeals colleagues, especially on criminal procedure. In one case he censured his brethren by writing:

The seeming anxiety of judges to protect every accused person from every consequence of his voluntary utterances is giving rise to myriad rules, sub-rules, variations, and exceptions, which even the most sophisticated lawyers and judges are taxed to follow.... Guilt or innocence becomes irrelevant in the criminal trial as we flounder in a morass of artificial rules poorly conceived and often impossible of application.

Burger’s views on criminal law and procedure squared with the Republican conservatism of the late 1960s. “Law and order” was a hotly debated issue because of the growth in crime in the United States and controversial Supreme Court decisions extending the rights of criminal defendants. The accent on criminal justice in the 1968 presidential election year reflected the concerns of many Americans and leading Republicans, and opinion polls showed that voters saw Richard Nixon as the candidate who could most effectively deal with the nation’s crime problems. Nixon openly criticized Warren Court decisions in his 1968 campaign, arguing that a major way to handle problems involving crime was to appoint “strict constructionists” to the Supreme Court.

During the summer of 1967, Burger delivered a law-and-order speech at Wisconsin’s Ripon College that caught Nixon’s attention. In it, Burger maintained that “governments exist chiefly to foster the rights and interests of their citizens—to protect their homes and property, their persons and their lives. If a government fails in this basic duty, it is not redeemed by providing even the most perfect system for the protection of the rights of defendants in the criminal courts.” These views closely matched Nixon’s, leading them to talk at length early in 1969 and remain in touch until Burger’s nomination to the Supreme Court.

President Nixon announced his choice for chief justice on 21 May 1969. Speaking to the press, he portrayed the sixty-two-year-old Burger as a man of integrity who had worked his way from a modest background to success, as a man with extensive legal experience and great intelligence, and, most important, as an experienced strict-constructionist judge who would interpret the law, not make it. Saying the appointment of a Supreme Court justice was one of the most important actions of a president, Nixon expected Burger to interpret the Constitution narrowly, especially as it pertained to criminal suspects.

On 3 June 1969 the Senate Judiciary Committee handled the nomination of Warren Burger in less than two hours. The hearings underscored Burger’s views on constitutional interpretation, and the committee unanimously approved his nomination. The Senate completed its deliberations six days later. In the less than three weeks between his nomination and confirmation, Burger went from a little-known court of appeals judge to Earl Warren’s successor. He was sworn in as the fifteenth chief justice of the United States on 24 June 1969.

Chief Justice Burger’s legacy is primarily understood through his contributions to U.S. constitutional law, including several landmark decisions in which he spoke for the Supreme Court. The first, Swann v. Charlotte-Mecklenburg Board of Education, was handed down on 20 April 1971. Here the Court addressed for the first time the issue of busing students to bring about a racial balance in public schools. Charlotte, North Carolina, had always required white and African American children to attend separate schools until Brown v. Board of Education (1954) declared segregation unconstitutional. After that, Charlotte failed to integrate its schools, and a federal court ordered the busing of Charlotte schoolchildren as a last resort. Burger’s majority opinion in Swann approved of busing as one means of bringing about desegregation unless it presented a risk to a child’s health or significantly impinged upon the educational process. In addition, he concluded that school-district lines could be gerrymandered by a school board to enhance desegregation on an interim basis. Quotas should not be used, however, to require an exact racial balance in individual schools.

On 28 June 1971, Burger delivered another prominent decision in Lemon v. Kurtzman, establishing the basic standard courts should apply in guaranteeing separation of church and state. He announced in this case that a law permitting state subsidies to parochial schools to help pay teachers’ salaries in secular courses violated the First Amendment. In reaching his decision, Burger indicated that a threefold test would henceforth be used in resolving whether a law abridged the establishment clause: It must have a secular purpose, its primary effect could not advance or inhibit religion, and it could not foster an “excessive entanglement with religion.”

Miller v. California was a leading ruling in obscenity law, and Burger delivered the opinion for the Court in that case on 21 June 1973. There he revised some of the law’s prior definitions of obscenity and stressed that local community standards must determine what is obscene for each community. In the future, Burger observed, a conviction for obscenity should be based on “(a) whether ’the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Perhaps the most famous Supreme Court opinion written by Chief Justice Burger was United States v. Nixon, announced on 24 July 1974. This case grew out of the Watergate scandal, in which President Nixon faced the threat of impeachment because of the illegal cover-up of the Watergate break-in. A central issue concerned the president’s assertions that the doctrine of separation of powers prevented the judiciary from reviewing his claim of executive privilege—the exemption of a president from disclosure requirements to protect confidentiality in carrying out critical governmental functions. Burger held against the president, responding that the courts must ultimately determine the meaning of the Constitution. On the other hand, deferring to the executive, Burger for the first time bestowed Supreme Court recognition of an executive privilege against disclosure. Such a privilege is necessary to promote confidentiality and candor when the president and his key advisers make decisions, but Burger rejected Nixon’s contention that executive privilege is absolute, because, in this case, an absolute privilege in a criminal prosecution would interfere with the judiciary’s responsibility to do justice. Nixon resigned seventeen days after Burger’s opinion was released, knowing he would otherwise be impeached.

Chief Justice Burger delivered another critical school desegregation opinion, Milliken v. Bradley, on 25 July 1974. There a federal judge had ordered schoolchildren bused between Detroit and surrounding suburban school districts to correct unconstitutional segregation in Detroit alone. Burger contended, however, that court-ordered busing across city and suburban school lines was constitutionally permissible only where illegal segregation was proven in each school district to undergo busing or where illegal segregation in one school district had a significant segregative effect on another district. This holding, widely criticized by liberals, reduced the likelihood that America’s schools would be desegregated, because minorities tended to live in cities, whereas whites increasingly resided in the suburbs.

Nixon appointed Burger to the Supreme Court with criminal justice in mind, but Burger’s opinions in that field were not among his best known. Indeed, not a single one reversed a major Warren Court precedent. Still, they usually exhibited a conservative theme. In United States v. Harris (1971), Burger spoke for the majority in ruling that probable cause for a search warrant could be based on a tip from an anonymous informant who was not proven to be reliable. The same year, in Harris v. New York (1971), he held that even though the warnings required by Miranda v. Arizona (1966) were not properly given to a criminal suspect, incriminating statements made to the police could nevertheless be introduced at trial to impeach the credibility of a suspect’s statements made on the witness stand. Burger’s most notable fair-trial opinion came in Chandler v. Florida (1981), in which he announced that televising a state criminal trial does not inherently abridge the rights to fair trial and due process. Perhaps most indicative of Burger’s sense of criminal justice, Nix v. Williams (1984) decided that if evidence would have been inevitably discovered by legal means, it could not be excluded at trial because of an illegal search.

Two leading separation-of-powers opinions also contributed to Burger’s legacy in constitutional law: Immigration and Naturalization Service v. Chadha (1983) and Bowsher v. Synar (1986). He held in Chadha that the legislative veto provision of the federal Immigration and Nationality Act was unconstitutional and, as a result, cast doubt on the legality of the legislative veto generally. The decision ostensibly weakened congressional oversight of the executive branch when many observers called for more checks on the executive establishment. In Bowsher, Burger struck down a major provision of the Balanced Budget and Emergency Deficit Control Act of 1985, which sought to control the growth of the federal budget deficit and eliminate it. He maintained that the provision violated the doctrine of separation of powers because it assigned to the comptroller general, an agent of Congress, functions that properly belonged to the executive branch.

While Burger penned several historic opinions, he was not considered one of the more outstanding justices on the modern Supreme Court. Legal commentators have concluded that Burger failed to provide adequate leadership as chief justice, that he used his power as chief justice in questionable ways to try to influence the Court’s decisions, that he lacked an overarching constitutional philosophy, that his opinions were often unimaginative and narrowly written, and that he was too conservative on some issues. On the other hand, even critics concede that Burger made valuable contributions to judicial administration during his years on the Court, especially through his pivotal role in the creation of the National Center for State Courts and the Institute for Court Management.

On 26 September 1986, at the age of seventy-nine, Warren Burger unexpectedly retired from the Supreme Court to become the chairman of the Bicentennial Commission, thus allowing President Ronald Reagan to elevate William H. Rehnquist to the Court’s center seat. Continuing to live in his farmhouse in McLean, Virginia, Burger directed the Bicentennial Commission’s myriad activities for five years with all the energy he could muster. On 25 June 1995, he died of congestive heart failure in Washington, D.C., and was buried in Arlington National Cemetery.

Burger’s papers are located at the College of William and Mary School of Law in Williamsburg, Virginia. While no autobiography or biography has been written, Burger and his Court are the focus of several books, including Vincent Blasi, ed., The Burger Court: The Counter-Revolution That Wasn’t (1983), which probes developments in several areas of constitutional law during the first decade or so of the Burger Court; Charles M. Lamb and Stephen C. Halpern, eds., The Burger Court: Political and judicial Profiles (1991), which contains individual studies of each Justice who served on the Burger Court; and Bernard Schwartz, ed., The Burger Court: Counter-Revolution or Confirmation? (1998), which examines the Burger Court from various legal and historical perspectives.

Various articles have specifically focused on Burger. See, for example, Joseph F. Kobylka, “Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause,” Western Political Quarterly 42 (Dec. 1989): 545-568, which explores Burger’s inability to shape the Court’s doctrine of separation of church and state; Charles M. Lamb, “The Making of a Chief Justice: Warren Burger on Criminal Procedure, 1956–1969,” Cornell Law Review 60 (June 1975): 743-788, which surveys Burger’s lower court and early Supreme Court decisions on criminal procedure; Edward A. Tamm and Paul C. Reardon, “Warren E. Burger and the Administration of Justice,” Brigham young University Law Review 1981, no. 3 (1981): 447-521, which examines the changes in the administration of justice generated by Burger. The Oklahoma Law Review published a symposium on Burger in its spring 1992 issue, with articles on his views and decisions on criminal justice, school desegregation, freedom of press, separation of church and state, and administrative law, among others topics. Obituaries are in the New York Times and Washington Post (both 26 June 1995).

Charles M. Lamb