Burger, Warren Earl
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
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.
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.
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. □
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.
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 (1907–2001). 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 (1890–1969), 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 (1913–1994) 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 (1891–1974) 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 (1905–1982). 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 inconsistent—some 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
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.
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."
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 ) 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 ) 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 ), 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."
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).
Burger, Warren Earl
BURGER, Warren Earl
(b. 17 September 1907 in Saint Paul, Minnesota; d. 25 June 1995 in Washington, D.C.), judge on the U.S. Court of Appeals for the District of Columbia Circuit, then fifteenth chief justice of the United States, known during the 1960s for his conservative critique of changes in criminal law.
Burger was the fourth of seven children born to Charles Joseph Burger and Katharine Schnittger. Charles Burger owned a truck farm and worked as a railroad cargo inspector and traveling salesman. In 1925 Burger completed John A. Johnson High School in Saint Paul, but financial need prevented him from taking advantage of the partial scholarship he won to Princeton University. Instead, he worked as an insurance agent and took night classes at the University of Minnesota. In 1927, while continuing his job with the Mutual Life Insurance Company, he enrolled in the Saint Paul College of Law (now William Mitchell College of Law), from which he earned the LL.B. magna cum laude in 1931.
From 1931 to 1953 Burger practiced law in St Paul. He married Elvera Stromberg in 1933, a union that produced two children and lasted until Elvera's death sixty-one years later. Burger was an active Republican, most notably as a supporter of the progressive Harold Stassen. Burger was an advisor to Stassen during the latter's successful campaign for governor of Minnesota in 1938, and in both 1948 and 1952 Burger represented Stassen at the Republican National Convention. At the convention in 1952 Burger, on Stassen's behalf, turned the votes of Minnesota's delegation over to Dwight D. Eisenhower.
In 1953 Burger was appointed assistant attorney general in charge of the Claims Division (now the Civil Division), which brought the federal government's civil suits in federal court. Burger argued several cases before the Supreme Court, including Peters v. Hobby (1955), in which he defended a controversial decision of the government's Loyalty Review Board when the solicitor general refused to do so. In the same year President Eisenhower nominated Burger to the Court of Appeals for the District of Columbia (D.C.) Circuit, on which Burger took his seat in April 1956.
For the next thirteen years, until 1969, Burger was a judge on an appellate court that has often been considered the most important in the nation because it so often handles the significant federal issues originating in decisions by federal agencies. However, the D.C. Circuit also served as the appellate court for the District of Columbia itself, so the court saw many common civil and criminal cases ordinarily reviewed by state courts. Burger became known in the field of general criminal law, especially because of his disagreements with liberal colleagues such as Judges David Bazelon and J. Skelly Wright.
For example, the traditional test for the insanity defense was, according to M' Naghten's Case (1843), whether the defendant, when he acted, knew the difference between right and wrong. In 1954, however, in Durham v. United States, the D.C. Circuit created a new test whereby the defendant could be excused if his action were the product of a mental disease or defect. No other court accepted this innovation, which made judgment turn on the credibility of expert psychiatric testimony rather than moral culpability. Burger became the court's leading critic of the Durham test, and in 1962 he wrote the opinion in McDonald v. United States that limited the scope of "mental disease or defect" by narrowing its definition. By 1972 the court had abandoned the Durham test altogether.
Burger dissented from the court's opinion in Killough v. United States (1962), which reversed a conviction for murder because the defendant had been held for thirty-six hours before arraignment, during which time the defendant had confessed. Burger believed the contemporary rule that criminal defendants be brought to court "without unnecessary delay," Mallory v. United States (1957), had to be balanced by society's interest in protecting itself from criminals, an interest that sometimes outweighed technical procedure. Burger later became a critic of the decision handed down by the Supreme Court in Miranda v. Arizona (1966), that suspects in police custody were not to be interrogated without first being apprised of their constitutional rights, including the privilege against self-incrimination.
By the late 1960s Burger was a prominent "law-and-order" judge. He gained national attention when excerpts of a speech he delivered to the Ripon Society in Wisconsin were published in U.S. News and World Report (August 1967, reprinted June 1969). In the speech, Burger compared the U.S. criminal justice system unfavorably with the system in Scandinavian countries. Crime, Burger argued, was exacerbated by the long delay between suspects' arrests and trials, by the length of the trials themselves, by the numerous appeals granted to convicted criminals, and by the inadequate effort to rehabilitate prisoners. The speech was later quoted by Republican presidential candidates, including Richard M. Nixon, who, soon after he took office, nominated Burger on 21 May 1969 to replace the retiring Chief Justice Earl Warren. Burger had judicial experience, a conservative view of criminal law, and a "strict constructionist" approach to the Constitution. After a swift confirmation, Burger took his seat on 23 June 1969.
Burger was expected to reverse the liberal tide of the Warren Court, which had played such an activist role in the field of civil rights. Yet, Burger joined the majority in a number of the Supreme Court's most activist decisions, including Swann v. Charlotte-Mecklenburg Board of Education (1971), which authorized busing in order to effect desegregation of schools, and Roe v. Wade (1973), which abrogated state laws on abortion. The most important of Burger's own opinions concerned the separation of powers in federal government, including United States v. Nixon (1974), which rejected President Nixon's claim to executive privilege and ordered him to comply with a subpoena issued during the investigation of the Watergate burglary. I. N. S. v. Chadha (1983) struck down Congress's use of the legislative veto. Burger, who was the longest-serving chief justice of the twentieth century, retired in 1986 to chair the Commission on the Bicentennial of the United States Constitution. He died of congestive heart failure, and is buried in Arlington National Cemetery in Arlington, Virginia.
During the 1960s Burger gained a reputation as a conservative appellate judge, one who was committed to an efficient criminal justice system that worked to the benefit of both society and convicted criminals. It was this reputation that brought Burger to the attention of President Nixon at the end of the decade and that secured his nomination to be chief justice.
Burger's professional and personal papers and memorabiliaare housed in a special collection at the Earl Gregg Swem Library of the College of William and Mary, at Williamsburg, Virginia. Biographical material and information on Burger's most important decisions as chief justice can be found in The Justices of the United States Supreme Court: Their Lives and Major Opinions (1997), Leon Friedman and Fred L. Israel, eds. Tributes upon Burger's retirement from the Supreme Court appear in the Harvard Law Review 100, no. 8 (1987): 969–1001. Tributes in memoriam appear in the William Mitchell Law Review 22, no. 1 (1996): 1–65; and Texas Law Review 74, no. 2 (1995): 207–236. A respectful obituary is in the Guardian (27 June 1995).
Andrew J. Carriker