Warren E. Burger (1907–1995)

Chief Justice Warren Earl Burger was the fifteenth chief justice of the U.S. Supreme Court. Appointed in 1969 to the Supreme Court by President Nixon, Burger served for seventeen years until 1986. Born on September 17, 1907, in St. Paul, Minnesota, Burger was the fourth of seven children of Charles Joseph and Katharine Schnittger Burger. Charles Burger was a railroad cargo inspector and traveling salesman, while Katherine Burger (as Warren Burger recalled) ran an ‘‘old-fashioned German house’’ based on ‘‘common sense’’ and respect for traditional values. Burger’s paternal grandfather, Joseph Burger, was a Swiss immigrant who joined the Union Army at age fourteen and became a Civil War hero. His maternal parents were immigrants from Germany and Australia.

Because he suffered from polio at age eight, Burger stayed at home for a year. Even then, he was already a fan of the U.S. Constitution and knew he wanted to be a lawyer. Thus, his teacher brought him autobiographies of judges and lawyers. At age nine, Burger began delivering newspapers to help with his family’s finances. In high school, Burger did not compile an outstanding academic record, but he was otherwise very active in several extracurricular activities. He was the president of the student council, head of the student court, and editor of the student newspaper. In addition, he participated in several sports, and ended up lettering in football, hockey, swimming, and track. Because of his extensive extracurricular activities, he was awarded a scholarship by Princeton University.

Concluding that the Princeton scholarship was insufficient to meet his financial needs and wanting to help support his family, Burger turned down the offer. He then enrolled in extension classes at the University of Minnesota in 1925, and after two years started attending night classes at the St. Paul College of Law (now the William Mitchell College of Law). He graduated magna cum laude from law school in 1931 and was admitted to the Minnesota Bar the same year. Burger worked as a life insurance salesman while attending college and law school, and served as the student body president. He met his wife, Elvera Stromberg, in college and married her in 1933. They later had two children, Wade and Margaret.

Burger began his legal career as an associate at a law firm in 1931 and became a partner at the firm in 1935. He earned a reputation as a capable lawyer who specialized in corporate, real estate, and probate law. While practicing law, Burger also taught contract law at his alma mater from 1931 to 1953 and was the president of the local junior chamber of commerce in 1935. Unable to sign up for military service during World War II because of a spinal condition, Burger nonetheless served as a member of Minnesota’s emergency war labor board from 1942 to 1947. After World War II, he served as a member of the governor’s interracial commission from 1948 to 1953. During that period, Burger also became the first president of the St. Paul’s Council on Human Relations, wherein his responsibilities included improving the relationship between that city’s police and its racial minorities.

A lifelong Republican, Burger played an active part in politics. He was one of the founders of the Minnesota’s first Young Republicans organization, and served as floor manager for Harold Stassen’s unsuccessful campaigns for the Republican presidential nomination both in 1948 and in 1952. During the 1952 Republican convention when General Eisenhower emerged as the frontrunner, Burger shifted his support to Eisenhower. His support for President Eisenhower led to his appointment in 1953 to head what is now the civil division of the Justice Department. In 1955, President Eisenhower nominated Burger to the U.S. Court of Appeals for the District of Columbia. Although his confirmation stalled in the Senate for several months due to allegations of discrimination charges raised by former Justice Department employees that he had dismissed, Burger was confirmed and seated on the Appeals Court in April 1956. Burger’s record on the Appeals Court was largely conservative, especially with respect to criminal cases involving suspects and defendants. Although he served a total of thirteen years on the Appeals Court, he was considered a surprise choice for the Supreme Court.

In 1967, Burger in a speech delivered at Ripon College complained of the ‘‘prolonged conflict’’ characterizing the U.S. system of criminal justice. He noted that the adversary system has become ‘‘glorified’’ to a point whereby defendants are encouraged, even after conviction, to continue their fight with society. President Nixon, who had previously met Burger during the 1948 Republican Convention, must have taken note of that speech when trying to fulfill his own campaign promise to place ‘‘political conservatives’’ and ‘‘strict constructionists’’ on the federal bench. Therefore, on May 21, 1969, President Nixon nominated Burger to fill the seat and position being vacated by Chief Justice Earl Warren on the Supreme Court. Confirmed by the Senate on a seventy- four to three vote on June 9, 1969, Burger was sworn in by his predecessor, Earl Warren, on June 23, 1969. Burger ended up serving seventeen years, one of the longest terms of any Supreme Court chief justices, until September 26, 1986. President Reagan nominated Justice Rehnquist to replace Burger as the nation’s sixteenth chief justice.

After his retirement from the Supreme Court, Burger chaired the Commission on the Bicentennial of the United States, a role he took very seriously. Burger was extremely delighted that the 200th birthday of the U.S. Constitution on September 17, 1987, was also his own eightieth birthday. After his wife passed away in 1994, Burger’s health rapidly deteriorated and he died of congestive heart failure on June 25, 1995. Chief Justice Burger was laid in state in the Great Hall of the Supreme Court, and buried next to his wife at Arlington National Cemetery on June 29, 1995.

Burger’s Judicial Philosophy

Chief Justice Burger proved to be less of a knee-jerk conservative than most hard-line conservatives expected when he was nominated. In fact, the entire Burger Court era did not generate the counterrevolution Warren Court critics were anticipating.

Part of the disappointment felt by hard-line conservatives desiring a different Supreme Court from that of the liberal Warren Court was that they had raised their expectations far too high while forgetting that each justice, including the chief justice, had only one vote.

The Burger Court consisted of five holdovers from the Warren era that served long tenures during the Burger era. Three of these five holdovers—William O. Douglas, William J. Brennan, Jr., and Thurgood Marshall—were regarded as liberal activists, while the other two—Potter Stewart and Byron White—were considered more moderate to conservative justices. In addition to Burger, President Nixon appointed three other justices to the Supreme Court— Harry A. Blackmun, William H. Rehnquist, and Lewis F. Powell. After Nixon, two other justices—John Paul Stevens (appointed by President Ford) and SandraDay O’Connor (nominated by President Reagan)—joined the Burger Court. During the overall course of the Burger Court, Blackmun and Stevens became part of the liberal bloc, Rehnquist and O’Connor (albeit not always) joined the conservative wing, while Powell generally maintained a centrist position.

Considered as lacking analytical rigor or great eloquence by critics, Burger brought a common-sense approach to his decisions. He tried to strike a balance between liberal excesses and conservative extremes. On most civil rights issues, Burger was a moderate. He believed that school busing should be limited to instances when de jure segregation had actually occurred and not for the purpose of racial balance (Milliken v. Bradley [1974]). On affirmative action, Burger maintained that congressionally mandated but not state-enacted preferences could be used to remedy past discrimination (Fullilove v. Klutznick [1980], later repealed by Adarand Constructors v. Pena [1995] during the Rehnquist era). In Wisconsin v. Yoder (1972), writing for the Court, Burger rejected compulsory high school education for the Amish, deeming it a violation of their religious beliefs. But Burger was protective of the freedom of the press, claiming, for example, that newspapers should not be required to give space to the people they criticize as their right to reply (Miami Herald Publishing Co. v. Tornillo [1974]). However, Burger was hostile to other First Amendment issues such as pornography, dirty words, and disruptive speech in schools.

Unlike hard-line conservatives in more recent years, Burger was a ‘‘traditional’’ conservative on many important policy issues. For example, noting that it would only benefit the entire society, he advocated for the rehabilitation of prison inmates by urging job provisions for inmates. In addition, Burger believed in gun control and was a staunch advocate of gun licensing. In a magazine article in 1990 after his Supreme Court years, Burger explained the rationale behind the Second Amendment of the U.S. Constitution as being reflective of the founding fathers’ purpose and objectives then, and cautioned against the literal reading of the amendment in today’s world.

In the field of criminal justice, Burger acted as predicted. He participated in decisions limiting Warren-era precedents that gave criminal defendants substantial leeway. For example, Burger helped limit the Fourth Amendment exclusionary rule as merely deterring police misconduct rather than a constitutional requirement. He refused to extend the exclusionary rule to grand jury proceedings and ‘‘good faith’’ police seizures of evidence based on invalid warrants. As for Miranda warnings, Burger did not have problems with using tainted confessions to impeach a defendant’s trial testimony or to obtain other evidence against suspects. He also agreed with the Court’s decision not to apply Miranda to grand jury proceedings or to instances when police initiate interrogation to avoid an imminent danger to public safety. However, some of Burger’s Republican friends were not too happy that he wrote the Court’s opinion (albeit with significant assistance from his colleagues) in United States v. Nixon (1974) preventing President Nixon from withholding from Congress and the courts materials related to the Watergate affair.

Regardless of what Burger critics thought of his judicial temperament, they uniformly agree that he made a significant and memorable mark on judicial administration in U.S. history. He worked with the American Bar Association on judicial education programs and in creating the Institute of Judicial Administration. He improved the administration of the Supreme Court itself by either creating or adding new administrative positions such as administrative assistant to the chief justice, judicial fellows, public relations professionals, librarians, and clerks. He substantially improved the Court’s law library and enhanced its technology. Burger sponsored the National Center for State Courts, championed the creation of the Federal Judicial Center, and encouraged similar organizations to conduct scholarly research on the Court. Burger is celebrated as the chief architect of court mediation, alternative dispute resolution, arbitration, and other alternatives to litigation that are now widely used in U.S. jurisprudence.

Burger Court’s Legacy on Civil Liberties

Although the Burger Court left its indelible mark on American civil liberties, it did not produce a seismic change as President Richard Nixon and his political allies would have preferred. Moreover, the Burger Court concentrated on non-economic issues rather than on property rights. Similar to other Supreme Court eras after 1937, the Burger Court did not nullify any economic regulation on substantive due process grounds. However, the Burger Court subjected Bill of Rights issues and other personal non-economic rights matters to strict judicial scrutiny.

On religious liberty, the Burger Court kept and extended many Warren Court precedents outlawing state-sponsored religious exercises in the public schools. Ruling in Lemon v. Kurtzman (1971), the Court established a three-pronged test for determining whether laws or government actions affecting religion activities violated the First Amendment establishment clause. Applying the Lemon test required that laws affecting religion were to be held constitutional only if they had a secular purpose, had a primary effect that neither advanced nor harmed religion, and did not create an excessive entanglement between church and state. In one particular application of the Lemon test, the Burger Court, in a six-to-three majority ruling, invalidated the posting of the Ten Commandments on the walls of classrooms (Stone v. Graham [1980]). However, the Burger Court sometimes took on a more expansive view of the First Amendment religion clauses. For example in Widmar v. Vincent (1981), the Court, disallowing a state university’s concern over violating the establishment clause, concluded that the university could not exclude religious student groups from facilities available to secular student organizations.

On First Amendment free expression and association cases, the Burger Court mostly relied on the Warren era rulings except in certain instances when it clarified the Supreme Court’s position on prior restraints on the press. The Burger Court maintained that in order for the government to impose prior restraints on the press, the government must demonstrate a ‘‘heavy burden’’ of justification.

The Burger Court left a strong legacy on equal protection issues. Unlike the unanimity maintained mostly by the Warren era justices on many school desegregation cases, the Burger Court lacked such cohesion. Although the Burger Court unanimously ruled in Swann v. Charlotte-Mecklenburg Bd. of Education (1971) that trial judges in desegregation cases had broad remedial powers, Chief Justice Burger elaborated that racial balance was not a constitutional mandate but only a temporary remedy for past de jure segregation. The Burger Court was also split on other major desegregation school cases. For example, in Milliken v. Bradley (1974), it was only a five-to-four majority that held that de jure segregation must be distinguished from de facto segregation. The Court’s majority was equally adamant that civil rights orders be limited to instances whereby there had been previous intentional discrimination.

On affirmative action cases, the Burger Court did not provide clear guidance. On the one hand, it ruled in Regents of the University of California v. Bakke (1978) that states were precluded from imposing racial quotas to correct the effects of past discrimination. On the other hand, the following year the Burger Court decided that under the 1964 Civil Rights Act, Congress did not bar affirmative action quotas voluntarily established by a private company (United Steelworkers v. Weber [1979]). In both cases, Burger made clear that he was opposed to affirmative action programs.

SALMON A. SHOMADE

References and Further Reading

  • Maltz, Earl M. The Chief Justiceship of Warren Burger, 1969–1986. Columbia: University of South Carolina, 2000. 
  • Yarborough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, CA: ABC-CLIO, 2000. 

Cases and Statutes Cited

  • Adarand Constructors v. Pena, 515 U.S. 200 (1995) 
  • Fullilove v. Klutznick, 448 U.S. 448 (1980) 
  • Lemon v. Kurtzman, 403 U.S. 602 (1971) 
  • Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) 
  • Milliken v. Bradley, 418 U.S. 717 (1974) 
  • Regents of the University of California v. Bakke, 438 U.S. 265 (1978) 
  • Stone v. Graham, 449 U.S. 39 (1980) 
  • Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1 (1971) 
  • United States v. Nixon, 418 U.S. 683 (1974) 
  • United Steelworkers v. Weber, 443 U.S. 193 (1979) 
  • Widmar v. Vincent, 454 U.S. 263 (1981) 
  • Wisconsin v. Yoder, 406 U.S. 205 (1972)

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