Warren E. Burger

Warren Earl Burger (September 17, 1907 – June 25, 1995) was the 15th chief justice of the United States, serving from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul College of Law in 1931. He helped secure the Minnesota delegation's support for Dwight D. Eisenhower at the 1952 Republican National Convention. After Eisenhower won the 1952 presidential election, he appointed Burger to the position of Assistant Attorney General in charge of the Civil Division. In 1956, Eisenhower appointed Burger to the United States Court of Appeals for the District of Columbia Circuit. Burger served on this court until 1969 and became known as a critic of the Warren Court.

This article is about the Supreme Court Justice. For the journalist, see Warren Berger.

Warren Burger
15th Chief Justice of the United States
In office
June 23, 1969 – September 26, 1986
Nominated byRichard Nixon
Preceded byEarl Warren
Succeeded byWilliam Rehnquist
20th Chancellor of the College of William & Mary
In office
June 26, 1986 – July 1, 1993
President
Preceded byAlvin Duke Chandler (1974)
Succeeded byMargaret Thatcher
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office
March 29, 1956 – June 23, 1969
Nominated byDwight D. Eisenhower
Preceded byHarold Montelle Stephens
Succeeded byMalcolm Richard Wilkey
11th United States Assistant Attorney General for the Civil Division
In office
May 1, 1953 – April 14, 1956
PresidentDwight D. Eisenhower
Preceded byHolmes Baldridge
Succeeded byGeorge Cochran Doub
Personal details
Born
Warren Earl Burger

(1907-09-17)September 17, 1907
Saint Paul, Minnesota, U.S.
DiedJune 25, 1995(1995-06-25) (aged 87)
Washington, D.C., U.S.
Political partyRepublican
Spouse(s)
Elvera Stromberg
​
​
(m. 1933; died 1994)​
Children2
EducationSt. Paul College of Law (LLB)
Signature
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In 1969, President Richard Nixon nominated Burger to succeed Chief Justice Earl Warren, and Burger won Senate confirmation. He did not emerge as a strong intellectual force on the court, but sought to improve the administration of the federal judiciary. He also helped establish the National Center for State Courts and the Supreme Court Historical Society. Burger remained on the court until his retirement in 1986, when he became Chairman of the Commission on the Bicentennial of the United States Constitution. He was succeeded as chief justice by William H. Rehnquist, who had served as an associate justice since 1972.

In 1974, Burger wrote for a unanimous court in United States v. Nixon, which rejected Nixon's invocation of executive privilege in the wake of the Watergate scandal. The ruling played a major role in Nixon's resignation. Burger joined the majority in Roe v. Wade in holding that the right to privacy prohibited states from banning abortions. He later abandoned Roe v. Wade in Thornburgh v. American College of Obstetricians and Gynecologists. His majority opinion in INS v. Chadha struck down the one-house legislative veto.

Although Burger was perceived as a conservative,[1] and the Burger Court delivered numerous conservative decisions, the Burger Court also delivered some liberal decisions regarding abortion, capital punishment, religious establishment, and school desegregation[2] during his tenure.[3]

Early years

Warren Earl Burger was born in St. Paul, Minnesota, in 1907, as one of seven children. His parents, Katharine (née Schnittger) and Charles Joseph Burger, a traveling salesman and railroad cargo inspector,[4] were of Austrian German descent. His grandfather, Joseph Burger, had emigrated from Tyrol, Austria and joined the Union Army when he was 12. Joseph Burger fought and was wounded in the Civil War, resulting in the loss of his right arm and was awarded the Medal of Honor at the age of 14. At age 16, Joseph Burger became the youngest captain in the Union Army.

Burger grew up on the family farm near the edge of Saint Paul. At age 8, he stayed home from school for a year after contracting polio.[5] He attended John A. Johnson High School, where he was president of the student council.[5] He competed in hockey, football, track, and swimming.[5] While in high school, he wrote articles on high school sports for local newspapers.[5] He graduated in 1925, and received a partial scholarship to attend Princeton University, which he declined because his family's finances were not sufficient to cover the remainder of his expenses.[5]

That same year, Burger also worked with the crew building the Robert Street Bridge, a crossing of the Mississippi River in Saint Paul that still exists. Concerned about the number of deaths on the project, he asked that a net be installed to catch anyone who fell, but was rebuffed by managers. In later years, Burger made a point of visiting the bridge whenever he came back to town.

Education and early career

Burger enrolled in extension classes at the University of Minnesota for two years while selling insurance for Mutual Life Insurance.[5] Afterward, he enrolled at St. Paul College of Law (which later became William Mitchell College of Law, now Mitchell Hamline School of Law), receiving his Bachelor of Laws magna cum laude in 1931.[5] He took a job at a St. Paul law firm.[5] In 1937, Burger served as the eighth president of the Saint Paul Jaycees.[5] He also taught for twelve years at William Mitchell.[5] A spinal condition prevented Burger from serving in the military during World War II; instead he supported the war effort at home, including service on Minnesota's emergency war labor board from 1942 to 1947.[5] From 1948 to 1953, he served on the governor of Minnesota's interracial commission, which worked on issues related to racial desegregation.[5] He also served as president of the St. Paul's Council on Human Relations, which considered ways to improve the relationship between the city's police department and its minority residents.[5]

Politics

Burger was a lifelong Republican.[6] His political career began uneventfully, but he soon rose to national prominence. He supported Minnesota Governor Harold E. Stassen's unsuccessful pursuit of the Republican nomination for president in 1948.[7] In 1952, at the Republican convention, he played a key role in Dwight D. Eisenhower's nomination by delivering the Minnesota delegation. After he was elected, President Eisenhower appointed Burger as the Assistant Attorney General in charge of the Civil Division of the Justice Department.

In this role, he first argued in front of the Supreme Court. The case involved John P. Peters, a Yale University professor who worked as a consultant to the government. He had been discharged from his position on loyalty grounds. Supreme Court cases are usually argued by the Solicitor General, but he disagreed with the government's position and refused to argue the case. Burger lost the case. Shortly after, Burger appeared in a case defending the United States against claims from the Texas City ship explosion disaster, successfully arguing that the Federal Tort Claims Act of 1947 did not allow a suit for negligence in policy making; the United States won the case (Dalehite, et al., vs. United States 346 U.S. 15 (1953)).

Court of Appeals service

Burger was nominated by President Dwight D. Eisenhower on January 12, 1956, to a seat on the United States Court of Appeals for the District of Columbia Circuit vacated by Judge Harold M. Stephens. He was confirmed by the United States Senate on March 28, 1956, and received his commission on March 29, 1956. His service terminated on June 23, 1969, due to his elevation to the Supreme Court.

National prominence
Painting of Burger

In 1968, Chief Justice Earl Warren announced his retirement after 15 years on the Court, effective on the confirmation of his successor. President Lyndon Johnson nominated sitting Associate Justice Abe Fortas to the position, but a Senate filibuster blocked his confirmation. With Johnson's term as president about to expire before another nominee could be considered, Earl Warren remained in office.

Supreme Court service
President Richard Nixon introduces Burger as his nominee for the Chief Justice of the Supreme Court

Burger was nominated by President Richard Nixon on May 23, 1969, to a seat on the Supreme Court of the United States vacated by Chief Justice Earl Warren. In his presidential campaign, Nixon had pledged to appoint a strict constructionist as chief justice. Burger had first caught Nixon's eye through a letter of support the former sent to Nixon during the 1952 Fund crisis,[8] and then again 15 years later when the magazine U.S. News and World Report had reprinted a 1967 speech that Burger had given at Ripon College. In it, Burger compared the United States judicial system to those of Norway, Sweden, and Denmark:

I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity. [Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty. No nation on earth goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.

Through speeches like this, Burger became known as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the U.S. Constitution. Nixon's agreement with these views, being expressed by a readily confirmable, sitting federal appellate judge, led to the nomination. He was confirmed by the United States Senate on June 9, 1969, and received his commission on June 23, 1969. Earl Warren swore in the new chief justice the same day.[9] He assumed senior status on September 26, 1986. His service terminated on June 25, 1995, due to his death.

According to President Nixon's memoirs, he had asked Chief Justice Burger in the spring of 1970 to be prepared to run for president in 1972 if the political repercussions of the Cambodia invasion were too negative for him to endure. A few years later, in 1971 and 1973, Burger was on Nixon's short list of vice-presidential replacements for Vice President Spiro Agnew, along with John Connally, Ronald Reagan, and Nelson Rockefeller before Gerald Ford was appointed following Agnew's resignation in October 1973.

Chief Justice

Jurisprudence

The Court issued a unanimous ruling, Swann v. Charlotte-Mecklenburg Board of Education (1971) supporting busing to reduce de facto racial segregation in schools. However, Burger wrote the majority opinion for Milliken v. Bradley (1974), which upheld de facto school segregation across school district lines if segregationist policy was not explicitly stated by all of the districts involved. In United States v. U.S. District Court (1972), the Burger Court issued another unanimous ruling against the Nixon administration's desire to invalidate the need for a search warrant and the requirements of the Fourth Amendment in cases of domestic surveillance. Then, only two weeks later in Furman v. Georgia (1972), the court, in a 5–4 decision, invalidated all death penalty laws then in force although Burger dissented from that decision. In the most controversial ruling of his term, Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning abortions. However, Burger abandoned Roe v. Wade in Thornburgh v. American College of Obstetricians and Gynecologists.

On July 24, 1974, Burger led the court in a unanimous decision in United States v. Nixon. That was Nixon's attempt to keep several memos and tapes relating to the Watergate scandal private. As documented in Woodward and Armstrong's The Brethren and elsewhere, Burger's original feelings on the case were that Watergate was merely a political battle, and Burger "didn't see what they did wrong."[10] The actual final opinion was largely Brennan's work, but each justice wrote at least a rough draft of a particular section.[11] Burger was originally to vote in favor of Nixon but tactically changed his vote to assign the opinion to himself and to restrain the opinion's rhetoric.[12] Burger's first draft of the opinion wrote that executive privilege could be invoked when it dealt with a "core function" of the presidency and that in some cases, the executive could be supreme.[13] However, the other justices in the Supreme Court were able to convince Burger to excise that language from the opinion: the judicial branch alone would have the power to determine whether something qualifies to be shielded under executive privilege.[14]

Burger was opposed to gay rights, as he wrote a famous concurring opinion in the Court's 1986 decision upholding a Georgia law criminalizing sodomy (Bowers v. Hardwick); he relied on historical evidence that laws criminalizing homosexuality were of ancient vintage. Burger pointed out that the famous legal author William Blackstone had written that sodomy was a "'crime against nature'... of 'deeper malignity than rape', a heinous act 'the very mention of which is a disgrace to human nature' and 'a crime not fit to be named'".[15] That decision was overturned in 2003 by the decision in Lawrence v. Texas, which sought relief against a Texas law, which sanctioned heterosexual sodomy but criminalized it between homosexuals.[16]

With Betty Ford between them, Chief Justice Burger swears in President Gerald Ford following the resignation of President Richard Nixon.

Burger also emphasized the maintenance of checks and balances between the branches of government. In Immigration and Naturalization Service v. Chadha (1983), he held for the majority that the US Congress could not reserve a legislative veto over executive branch actions.

On issues involving criminal law and procedure, Burger remained reliably conservative. He joined the majority in voting to reinstate the death penalty in Gregg v. Georgia (1976), and in 1983, he vigorously dissented from the Court's holding in the case of Solem v. Helm that a sentence of life imprisonment for issuing a fraudulent check in the amount of $100 constituted cruel and unusual punishment.

Leadership

Rather than dominating the court, Burger sought to improve administration both within the court and within the nation's legal system. Criticizing some advocates as unprepared, Burger created training venues for state and local government advocates.[17] He also helped found the National Center for State Courts, which is now in Williamsburg, Virginia, as well as the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards.[18] Burger also began a tradition of annually delivering a State of the Judiciary speech to the American Bar Association, many of whose members had been alienated by the Warren Court. However, some detractors thought his emphasis on the mechanics of the judicial system trivialized the office of chief justice.

Burger drew internal controversy within the Supreme Court throughout his tenure, as was revealed in the controversial best-selling book by Bob Woodward and Scott Armstrong, The Brethren. Although US Senator Everett Dirksen noted Burger "looked, sounded, and acted like a chief justice," the reporters depicted Burger as an ineffective chief justice who was not seriously respected by his colleagues for his alleged pomposity and lack of legal acumen. Woodward and Armstrong's sources indicated that some of the other justices were annoyed by Burger's practice of switching his vote in conference or simply not announcing his vote so that he could control opinion assignments. "Burger repeatedly irked his colleagues by changing his vote to remain in the majority, and by rewarding his friends with choice assignments and punishing his foes with dreary ones."[19] Burger would also try to influence the course of events in a case by circulating a pre-emptive opinion.[20]

Consequently, the Burger Court was described as his "in name only."[21] Time magazine called him "plodding" and "standoffish"[21] as well as "pompous," "aloof," and unpopular.[19] Burger was a constant irritant on the Court's group dynamic, according to The New York Times' Linda Greenhouse.[22] Jeffrey Toobin wrote in his book The Nine that by the time of his departure in 1986, Burger had alienated all of his colleagues to one degree or another.[23] In particular, Associate Justice Potter Stewart, who had been considered a candidate to succeed Warren as chief justice, was so discontented with Burger that he became the primary source for Woodward and Armstrong when they wrote The Brethren.

Greenhouse pointed to INS v. Chadha as evidence of Burger's "foundering leadership." Burger would cause the case to be delayed for over twenty months although there had been five votes to affirm the appeals court's finding of unconstitutionality after the case had been first argued: Brennan, Marshall, Blackmun, Powell, and Stevens. Burger did not allow an opinion to be assigned, first by asking for a special conference on the case and then by delaying the case for reargument when that conference fell through even though he never held a formal vote on holding the case over for reargument.[24]

Later life
Burger's tombstone, next to his wife's, at Arlington National Cemetery

Burger retired on September 26, 1986, in part to lead the campaign to mark the 1987 bicentennial of the United States Constitution, at which time he commissioned the construction of the Constitution Bicentennial Monument (The National Monument to the U.S. Constitution). He had served longer than any other chief justice appointed in the 20th century.[25] Despite his reputation for being imperious, he was well-liked by the law clerks and judicial fellows who worked with him.[26] In 1987, Princeton University's American Whig-Cliosophic Society awarded Burger the James Madison Award for Distinguished Public Service.[27] In 1988, he was awarded the prestigious United States Military Academy's Sylvanus Thayer Award as well as the Presidential Medal of Freedom.

In a 1991 appearance on the MacNeil/Lehrer NewsHour, Burger stated that the notion that the Second Amendment guaranteed an unlimited individual right to obtain guns "has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups."[28]

Burger died in his sleep on June 25, 1995, from congestive heart failure at the age of 87, at Sibley Memorial hospital in Washington, D.C. He drafted his own one-page will.[29] All of his papers were donated to the College of William and Mary, where he had served as Chancellor; however, they will not be open to the public until ten years after the death of Sandra Day O'Connor, the last surviving member of the Burger Court, per the donor agreement.[30]

Burger's casket lay in repose in the Great Hall of the United States Supreme Court Building. His remains are interred at Arlington National Cemetery.[31]

Legacy

As chief justice, Burger was instrumental in founding the Supreme Court Historical Society and was its first president. Burger is often cited as one of the foundational proponents of Alternative Dispute Resolution (ADR), particularly in its ability to ameliorate an overloaded justice system. In a speech given in front of the American Bar Association, Justice Burger lamented the state of the justice system in 1984, "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected."[32] The Warren E. Burger Federal Courthouse[33] in Saint Paul, Minnesota, and the Warren E. Burger Library[34] at his alma mater, the Mitchell Hamline School of Law (formerly the William Mitchell College of Law, and the St. Paul College of Law at the time of Burger's attendance) are named in his honor.

Family and personal life
Warren and Elvera Burger, 1981

He married Elvera Stromberg in 1933. They had two children, Wade Allen Burger (1936–2002) and Margaret Elizabeth Burger (1946–2017).[35] Elvera Burger died at their home in Washington, D.C., on May 30, 1994, at the age of 86.[31]

See also

References
  1. "Perceived Qualifications and Ideology of Supreme Court Nominees, 1937–2012" (PDF). SUNY at Stony Brook. Retrieved April 4, 2012.
  2. Barker, Lucius J. (Autumn 1973). "Black Americans and the Burger Court: Implications for the Political System". Washington University Law Review. 1973 (4): 747–777 – via https://openscholarship.wustl.edu/law_lawreview/.
  3. Earl M. Maltz, The Coming of the Nixon Court: The 1972 Term and the Transformation of Constitutional Law (University Press of Kansas; 2016)
  4. "Warren Burger Biography - life, family, children, death, school, young, information, born, college, contract".
  5. "Warren E. Burger (1907–1995)". Uscivilliberties.org. Civil Liberties in the United States. December 1, 2012.
  6. https://www.oyez.org/justices/warren_e_burger
  7. Osro Cobb, Osro Cobb of Arkansas: Memoirs of Historical Significance, Carol Griffee, ed. (Little Rock, Arkansas: Rose Publishing Company, 1989), p. 99
  8. "The Checkers Speech After 60 Years". The Atlantic. September 22, 2012. Retrieved September 23, 2012.
  9. "Warren Officially Retires As Burger Takes Oath". Evening Independent. Washington, D.C. Associated Press. June 23, 1969. p. 12–A. Retrieved August 11, 2012.
  10. Eisler 1993, p. 251.
  11. Eisler 1993, pp. 251–253.
  12. Eisler 1993, p. 252.
  13. Eisler 1993, p. 254.
  14. Eisler 1993, pp. 254–255.
  15. Bowers, 478 U.S. at 196–197 (Burger, C.J., concurring).
  16. "How the Battle Over Anti-Sodomy Laws Became the Lynchpin of Marriage Equality". Slate. The Slate Group. Retrieved June 15, 2020.
  17. Warren E. Burger, Conference on Supreme Court Advocacy, 33 Catholic U. L.Rev. 525–526 (1984)
  18. Christensen, George A., Journal of Supreme Court History Volume 33 Issue 1, Pages 17–41 (February 19, 2008), Here Lies the Supreme Court: Revisited, University of Alabama.
  19. "Reagan's Mr. Right". Time. June 30, 1986. Retrieved May 27, 2010.
  20. Greenhouse 2005, p. 157.
  21. "Reagan's Mr. Right". Time. June 30, 1986. Retrieved May 27, 2010.
  22. Greenhouse 2005, p. 234.
  23. Toobin, Jeffrey (2005), The Nine: Inside the Secret World of the Supreme Court, Doubleday.
  24. Greenhouse 2005, pp. 154–157.
  25. Supreme Court History, the Burger Court at Supreme Court Historical Society.
  26. Bonventre, Vincent (1995), Professional Responsibility: Conclusion, 46 Syracuse L. Rev. 765, 793 (1995), Syracuse_Law_Review.
  27. "Archived copy" (PDF). Archived from the original (PDF) on December 26, 2012. Retrieved May 15, 2012.CS1 maint: archived copy as title (link)
  28. Stevens, John Paul (April 11, 2014). "Opinion: The five extra words that can fix the Second Amendment". Washington Post. Retrieved August 10, 2017.
  29. "Warren E. Burger's Last Will and Testimony".
  30. "Warren E. Burger Collection". William & Mary Libraries. December 8, 2010. Retrieved July 17, 2019.
  31. "Elvera S. Burger, Supreme Court Spouse".
  32. "FSM 3 Intrm. 015-017".
  33. "Warren E. Burger Federal Building — U.S. Courthouse - St. Paul, Minnesota - Ryan Companies US, Inc".
  34. "Warren E. Burger Library – Mitchell Hamline School of Law". MitchellHamline.edu. Retrieved December 29, 2017.
  35. "Mary Rose Obituary". Washington Post. Legacy.com. December 24, 2017. Retrieved August 15, 2018.

Sources

Further reading
Legal offices
Preceded by
Harold Montelle Stephens		 Judge of the United States Court of Appeals for the District of Columbia Circuit
1956–1969		 Succeeded by
Malcolm Richard Wilkey
Preceded by
Earl Warren		 Chief Justice of the United States
1969–1986		 Succeeded by
William Rehnquist
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