Warren Burger
   HOME

TheInfoList



OR:

Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in
Saint Paul, Minnesota Saint Paul (abbreviated St. Paul) is the List of capitals in the United States, capital of the U.S. state of Minnesota and the county seat of Ramsey County, Minnesota, Ramsey County. Situated on high bluffs overlooking a bend in the Mississip ...
, Burger graduated from the St. Paul College of Law in 1931. He helped secure the Minnesota delegation's support for
Dwight D. Eisenhower Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; ; October 14, 1890 – March 28, 1969) was an American military officer and statesman who served as the 34th president of the United States from 1953 to 1961. During World War II, ...
at the
1952 Republican National Convention The 1952 Republican National Convention was held at the International Amphitheatre in Chicago, Illinois (''City in a Garden''); I Will , image_map = , map_caption = Interactive Map of Chicago , coordinates ...
. After Eisenhower won the 1952 presidential election, he appointed Burger to the position of
Assistant Attorney General Many of the divisions and offices of the United States Department of Justice are headed by an assistant attorney general. The president of the United States appoints individuals to the position of assistant attorney general with the advice and ...
in charge of the Civil Division. In 1956, Eisenhower appointed Burger to the
United States Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...
. Burger served on this court until 1969 and became known as a critic of the
Warren Court The Warren Court was the period in the history of the Supreme Court of the United States during which Earl Warren served as Chief Justice. Warren replaced the deceased Fred M. Vinson as Chief Justice in 1953, and Warren remained in office unt ...
. In 1969, President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party (United States), Republican Party, he previously served as a United States House ...
nominated Burger to succeed the Chief Justice,
Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American Constitution o ...
, and Burger won
Senate A senate is a deliberative assembly, often the upper house An upper house is one of two Debate chamber, chambers of a bicameralism, bicameral legislature, the other chamber being the lower house.''Bicameralism'' (1997) by George Tseb ...
confirmation with little opposition. 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 The National Center for State Courts (NCSC) is an independent, non-profit organization A nonprofit organization (NPO) or non-profit organisation, also known as a non-business entity, not-for-profit organization, or nonprofit institution, i ...
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 William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice Associate justice or associate judge (or simply associa ...
, 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 Executive privilege is the right of the president of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch ...
in the wake of the
Watergate scandal The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon from 1972 to 1974 that led to Nixon's resignation. The scandal stemmed from the Nixon administration's continual ...
. 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 The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
prohibited states from banning abortions. Later analyses have suggested that Burger joined the majority in ''Roe'' solely to prevent Justice William O. Douglas from controlling assignment of the opinion. Although too late, 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 nominated by a conservative president, the Burger Court also delivered some of the most liberal decisions regarding
abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregnan ...
,
capital punishment Capital punishment, also known as the death penalty, is the State (polity), state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to ...
, religious establishment, and school
desegregation Desegregation is the process of ending the separation of two groups, usually referring to races. Desegregation is typically measured by the index of dissimilarity, allowing researchers to determine whether desegregation efforts are having impact o ...
during his tenure.


Early years

Burger was born in
Saint Paul, Minnesota Saint Paul (abbreviated St. Paul) is the List of capitals in the United States, capital of the U.S. state of Minnesota and the county seat of Ramsey County, Minnesota, Ramsey County. Situated on high bluffs overlooking a bend in the Mississip ...
, in 1907, as one of seven children. His parents, Katharine (née Schnittger) and Charles Joseph Burger, a traveling salesman and railroad cargo inspector, were of
Austrian German Austrian German (german: Österreichisches Deutsch), Austrian Standard German (ASG), Standard Austrian German (), or Austrian High German (), is the variety of Standard German written and spoken in Austria. It has the highest prestige (socioling ...
descent. He was raised Presbyterian. His grandfather, Joseph Burger, had emigrated from Tyrol,
Austria The Republic of Austria, commonly just Austria, , bar, Östareich is a country in the southern part of Central Europe, lying in the Eastern Alps. It is a federation of nine States of Austria, states, one of which is the capital, Vienna, ...
and joined the
Union Army During the American Civil War, the Union Army, also known as the Federal Army and the Northern Army, referring to the United States Army, was the land force that fought to preserve the Union (American Civil War), Union of the collective U.S. st ...
when he was 13. Joseph Burger fought and was wounded in the
Civil War A civil war or intrastate war is a war between organized groups within the same Sovereign state, state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change go ...
, resulting in the loss of his right arm and was awarded the
Medal of Honor The Medal of Honor (MOH) is the United States Armed Forces' highest Awards and decorations of the United States Armed Forces, military decoration and is awarded to recognize American United States Army, soldiers, United States Navy, sailors, Unit ...
at the age of 14. At age 16, Joseph Burger became one of the youngest
captain Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police department, election precinct, e ...
s 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 Poliomyelitis, commonly shortened to polio, is an infectious disease caused by the poliovirus. Approximately 70% of cases are asymptomatic; mild symptoms which can occur include sore throat and fever; in a proportion of cases more severe sym ...
. He attended John A. Johnson High School, where he was president of the student council. He competed in hockey, football, track, and swimming. While in high school, he wrote articles on high school sports for local newspapers. He graduated in 1925, and received a partial scholarship to attend
Princeton University Princeton University is a private university, private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth, New Jersey, Elizabeth as the College of New Jersey, Princeton is the List of Colonial Colleges, fourth-oldest ins ...
, which he declined because his family's finances were not sufficient to cover the remainder of his expenses. That same year, Burger also worked with the crew building the Robert Street Bridge, a crossing of the
Mississippi River The Mississippi River is the List of longest rivers of the United States (by main stem), second-longest river and chief river of the second-largest Drainage system (geomorphology), drainage system in North America, second only to the Hudson B ...
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 The University of Minnesota, formally the University of Minnesota, Twin Cities, (UMN Twin Cities, the U of M, or Minnesota) is a public university, public Land-grant university, land-grant research university in the Minneapolis–Saint Paul, Tw ...
for two years while selling insurance for Mutual Life Insurance. Afterward, he enrolled at St. Paul College of Law (which later became William Mitchell College of Law, now
Mitchell Hamline School of Law Mitchell Hamline School of Law is a Private university, private law school in Saint Paul, Minnesota. It is accredited by the American Bar Association (ABA) and offers full- and part-time legal education for its Juris Doctor (J.D.) degree. Hist ...
), receiving his
Bachelor of Laws Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of C ...
''magna cum laude'' in 1931. He took a job at a St. Paul law firm. In 1937, Burger served as the eighth president of the Saint Paul
Jaycees The United States Junior Chamber, also known as the Jaycees, JCs or JCI USA, is a leadership training Leadership development is the process which helps expand the capacity of individuals to perform in leadership Leadership, both as a re ...
. He also taught for twelve years at William Mitchell. A spinal condition prevented Burger from serving in the military during
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
; instead he supported the war effort at home, including service on Minnesota's emergency war labor board from 1942 to 1947. From 1948 to 1953, he served on the governor of Minnesota's interracial commission, which worked on issues related to racial desegregation. He also served as president of St. Paul's Council on Human Relations, which considered ways to improve the relationship between the city's police department and its minority residents. Burger's political career began uneventfully, but he soon rose to national prominence. He supported
Minnesota Minnesota () is a state in the upper midwestern region of the United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primaril ...
Governor Harold E. Stassen's unsuccessful pursuit of the Republican nomination for president in 1948. At the
1952 Republican National Convention The 1952 Republican National Convention was held at the International Amphitheatre in Chicago, Illinois (''City in a Garden''); I Will , image_map = , map_caption = Interactive Map of Chicago , coordinates ...
, Burger played a key role in
Dwight D. Eisenhower Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; ; October 14, 1890 – March 28, 1969) was an American military officer and statesman who served as the 34th president of the United States from 1953 to 1961. During World War II, ...
's nomination by leading the Minnesota delegates to change their votes from Stassen to Eisenhower after Stassen failed to obtain 10 percent of the vote, which freed the Minnesota delegation from their pledge to support him.


Assistant Attorney General

President Eisenhower appointed Burger as the
Assistant Attorney General Many of the divisions and offices of the United States Department of Justice are headed by an assistant attorney general. The president of the United States appoints individuals to the position of assistant attorney general with the advice and ...
in charge of the Civil Division of the
Justice Department A justice ministry, ministry of justice, or department of justice is a Ministry (government department), ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of ju ...
. In this role, he first argued in front of the Supreme Court. The case involved John P. Peters, a
Yale University Yale University is a Private university, private research university in New Haven, Connecticut. Established in 1701 as the Collegiate School, it is the List of Colonial Colleges, third-oldest institution of higher education in the United Sta ...
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, in ''Dalehite v. United States'', 346 U.S. 15 (1953), Burger defended the United States against claims from the Texas City ship explosion disaster, successfully arguing that the
Federal Tort Claims Act The Federal Tort Claims Act (August 2, 1946, ch.646, Title IV, 28 U.S.C. Part VI, Chapter 171and ) ("FTCA") is a 1946 federal statute that permits private parties to sue the United States The United States of America (U.S.A. or USA), ...
of 1947 did not allow a suit for negligence in policy making.


Court of Appeals service

Burger was nominated by President
Dwight D. Eisenhower Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; ; October 14, 1890 – March 28, 1969) was an American military officer and statesman who served as the 34th president of the United States from 1953 to 1961. During World War II, ...
on January 12, 1956, to a seat on the
United States Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...
vacated by Judge Harold M. Stephens. He was confirmed by the
United States Senate The United States Senate is the Upper house, upper chamber of the United States Congress, with the United States House of Representatives, House of Representatives being the Lower house, lower chamber. Together they compose the national Bica ...
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
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...
.


Chief Justice


Nomination and confirmation

In June 1968, Chief Justice
Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American Constitution o ...
announced his retirement, effective on the confirmation of his successor. President
Lyndon Johnson Lyndon Baines Johnson (; August 27, 1908January 22, 1973), often referred to by his initials LBJ, was an American politician who served as the 36th president of the United States from 1963 to 1969. He had previously served as the 37th vice ...
nominated sitting
associate justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the Chief Justice, chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States ...
Abe Fortas Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an Associate justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States from 1965 to 1969. Born ...
to the position, but a Senate
filibuster A filibuster is a political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent decision. It is sometimes referred to as "talking a bill to death" or "talking out ...
blocked his confirmation, and Johnson withdrew the nomination.
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party (United States), Republican Party, he previously served as a United States House ...
was elected president in November 1968, and Johnson did not make another nomination before his term as president ended on January 20, 1969. Burger was nominated by President Nixon to succeed Earl Warren on May 23, 1969. The
United States Senate Committee on the Judiciary The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a Standing committee (United States Congress), standing committee of 22 U.S. senators whose role is to oversee the United States Department of Ju ...
hearing on Burger's nomination took place on June 3, 1969. It was characterized as having been friendly, and saw Burger as the sole individual to deliver testimony. The hearing was reported as having taken only an hour and forty minutes. Afterwards, the committee held a five-minute private session in which they voted unanimously to report favorably on his nomination. The Senate confirmed Burger to the court by a 74–3 vote on June 9, 1969, and he took the judicial oath of office on June 23, 1969. Remaking the Supreme Court had been a theme in Nixon's presidential campaign, and he had pledged to appoint a strict constructionist as chief justice. Burger had first caught Nixon's eye through a letter of support he sent to Nixon during the 1952 Fund crisis, and then again 15 years later when the magazine '' U.S. News & World Report'' reprinted a 1967 speech that Burger had given at Ripon College. In it, Burger compared the United States judicial system to those of
Norway Norway, officially the Kingdom of Norway, is a Nordic countries, Nordic country in Northern Europe, the mainland territory of which comprises the western and northernmost portion of the Scandinavian Peninsula. The remote Arctic island of ...
,
Sweden Sweden, formally the Kingdom of Sweden,The United Nations Group of Experts on Geographical Names states that the country's formal name is the Kingdom of SwedenUNGEGN World Geographical Names, Sweden./ref> is a Nordic countries, Nordic c ...
, and
Denmark ) , song = ( en, "King Christian stood by the lofty mast") , song_type = National and royal anthem , image_map = EU-Denmark.svg , map_caption = , subdivision_type = Sovereign state , subdivision_name = Danish Realm, Kingdom of Denmark ...
: 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. According to President Nixon's memoirs, he had asked Burger in the spring of 1970 to be prepared to run for
president President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ful ...
in 1972 if the political repercussions of the Cambodia invasion were too negative for him to endure. A few years later, Burger was on Nixon's short list of vice presidential candidates following the resignation of
Spiro Agnew Spiro Theodore Agnew (November 9, 1918 – September 17, 1996) was the 39th vice president of the United States, serving from 1969 until his resignation in 1973. He is the second vice president to resign the position, the other being John ...
in October 1973, before
Gerald Ford Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...
was appointed to succeed him.


Jurisprudence

The Court issued a unanimous ruling, '' Swann v. Charlotte-Mecklenburg Board of Education'' (1971), supporting busing to reduce ''de facto''
racial segregation Racial segregation is the systematic separation of people into race (human classification), racial or other Ethnicity, ethnic groups in daily life. Racial segregation can amount to the international crime of apartheid and a crimes against hum ...
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 Richard Nixon's tenure as the List of presidents of the United States, 37th president of the United States began with First inauguration of Richard Nixon, his first inauguration on January 20, 1969, and ended when he resigned on August 9, 1974 ...
'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 ''Furman v. Georgia'', 408 U.S. 238 (1972), was a landmark criminal case in which the United States Supreme Court invalidated all then existing legal constructions for the capital punishment in the United States, death penalty in the United Stat ...
'' (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 Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively. The domain of privacy partially overlaps with security, which can include the concepts of a ...
that prohibited states from banning
abortions Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregnan ...
. However, Burger later abandoned ''Roe'' in '' Thornburgh v. American College of Obstetricians and Gynecologists'' (1986). On July 24, 1974, Burger led the Court in a unanimous decision in '' United States v. Nixon'', arising from Nixon's attempt to keep several memos and tapes relating to the
Watergate scandal The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon from 1972 to 1974 that led to Nixon's resignation. The scandal stemmed from the Nixon administration's continual ...
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". The actual final opinion was largely Brennan's work, but each justice wrote at least a rough draft of a particular section. 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. 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. However, the other justices were able to convince Burger to excise that language from the opinion: the judicial branch alone would have the power to determine whether something can be shielded under an assertion of executive privilege. Burger joined the majority decision in '' Board of Education of the Hendrick Hudson Central School District v. Rowley'', which was the first special education law case decided by the Supreme Court. The Court upheld the constitutionality of Individual Education Plans, but also held that the school district did not have to provide every service necessary in order to maximize a child's potential. Burger also emphasized the maintenance of
checks and balances Separation of powers refers to the division of a state (polity), state's government into branches, each with separate, independent power (social and political), powers and responsibilities, so that the powers of one branch are not in conflic ...
among the branches of government. In '' Immigration and Naturalization Service v. Chadha'' (1983), he held for the majority that Congress could not reserve a legislative veto over executive branch actions. On issues involving criminal law and procedure, Burger remained reliably conservative. He dissented in '' Solem v. Helm'', which held that a life sentence for a phony check was unconstitutional. He once stated personal opposition to the death penalty in his ''
Furman v. Georgia ''Furman v. Georgia'', 408 U.S. 238 (1972), was a landmark criminal case in which the United States Supreme Court invalidated all then existing legal constructions for the capital punishment in the United States, death penalty in the United Stat ...
'' dissent, but defended it as constitutional.


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. He also helped found the
National Center for State Courts The National Center for State Courts (NCSC) is an independent, non-profit organization A nonprofit organization (NPO) or non-profit organisation, also known as a non-business entity, not-for-profit organization, or nonprofit institution, i ...
, which is now in Williamsburg,
Virginia Virginia, officially the Commonwealth of Virginia, is a U.S. state, state in the Mid-Atlantic (United States), Mid-Atlantic and Southeastern United States, Southeastern regions of the United States, between the East Coast of the United Stat ...
, as well as the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards. Burger also began a tradition of annually delivering a ''State of the Judiciary'' speech to the
American Bar Association The American Bar Association (ABA) is a voluntary association, voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities ar ...
, 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. Despite his reputation for being imperious, he was well-liked by the law clerks and judicial fellows who worked with him. Burger drew internal controversy within the Supreme Court throughout his tenure, as was revealed in Woodward and Armstrong's '' The Brethren''. Although Sen.
Everett Dirksen Everett McKinley Dirksen (January 4, 1896 – September 7, 1969) was an American politician. A Republican Party (United States), Republican, he represented Illinois in the United States House of Representatives and the United States Senate. As Pa ...
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." Burger would also try to influence the course of events in a case by circulating a pre-emptive opinion. Clerks mocked him for his perceived egotism and intense
homophobia Homophobia encompasses a range of negative attitude (psychology), attitudes and feelings toward homosexuality or people who are identified or perceived as being lesbian, gay or bisexual. It has been defined as contempt, prejudice, aversion, h ...
, and Justice Lewis Powell allegedly referred to him as "the great white doughnut", a attack on both his intellect and physical appearance. Consequently, the Burger Court was described as his "in name only". ''Time'' magazine called him "plodding" and "standoffish" as well as "pompous," "aloof," and unpopular. Burger was a constant irritant on the Court's group dynamic, according to ''
The New York Times ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid d ...
Linda Greenhouse Linda Joyce Greenhouse (born January 9, 1947) is an American legal journalist who is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School. She is a Pulitzer Prize-winning reporter who covered ...
.
Jeffrey Toobin Jeffrey Ross Toobin (; born May 21, 1960) is an American lawyer, author, blogger, and longtime legal analyst for CNN CNN (Cable News Network) is a multinational cable news channel headquartered in Atlanta, Georgia, U.S. Founded in 1980 ...
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. In particular, Associate Justice
Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to, among other areas ...
, 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.


Views on women judges

No women served on the Supreme Court until 1981, and Burger was strongly opposed to giving a seat to a female judge. In 1971, President Nixon considered nominating Mildred Lillie to the Supreme Court. Former White House Counsel
John Dean John Wesley Dean III (born October 14, 1938) is an American former attorney who served as White House Counsel for U.S. President Richard Nixon from July 1970 until April 1973. Dean is known for his role in the cover-up of the Watergate scandal ...
had said that the greatest opposition to Lillie came from Chief Justice Burger. Dean indicated that Burger threatened to resign over the nomination.


Views on homosexuality

Burger was deeply prejudiced against gays to an extent which bordered on hysteria. Burger sent
Byron White Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional American football, football player and jurist who served as an Associate Justice of the U.S. Supreme Court, associate justice of the U.S. Supreme Court fr ...
, who wrote the majority opinion in '' Bowers v. Hardwick'' upholding laws banning
homosexual Homosexuality is Romance (love), romantic attraction, sexual attraction, or Human sexual activity, sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romant ...
relations between consenting adults, a letter telling him to condemn homosexuality in his opinion. White refused. When Lewis Powell voted to strike down the anti-gay laws, Burger aggressively lobbied him to change his mind, and sent him a letter so hostile towards homosexuals that Powell mockingly described it as "nonsense". Burger wrote his own opinion attacking homosexuality, quoting a description of it as "an infamous crime against nature, of deeper malignity than rape, and an act not fit to be named, the very mention of which is an affront to human nature", and noted, with apparent approval, that homosexuals were once executed. Burger's language mobilized
gay rights Rights affecting lesbian, gay, Bisexuality, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the Capital punishment for homosexualit ...
advocates to work to overturn sodomy laws, eventually succeeding in the 2003 case '' Lawrence v. Texas''.


Later life and death

Burger left office on September 26, 1986, in part to lead the campaign to mark the bicentennial of the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nat ...
. He was succeeded as chief justice by
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the Supreme Court of the United States, U.S. Supreme Court for 33 years, first as an Associate justice of the Supreme Court of ...
. He served longer than any other chief justice appointed in the 20th century. In 1987,
Princeton University Princeton University is a private university, private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth, New Jersey, Elizabeth as the College of New Jersey, Princeton is the List of Colonial Colleges, fourth-oldest ins ...
's
American Whig-Cliosophic Society American(s) may refer to: * American, something of, from, or related to the United States of America, commonly known as the "United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or A ...
awarded Burger the James Madison Award for Distinguished Public Service. In 1988, he was awarded the prestigious
United States Military Academy The United States Military Academy (USMA), also known Metonymy, metonymically as West Point or simply as Army, is a United States service academies, United States service academy in West Point, New York. It was originally established as a f ...
's Sylvanus Thayer Award as well as the
Presidential Medal of Freedom The Presidential Medal of Freedom is the highest civilian award of the United States, along with the Congressional Gold Medal. It is an award bestowed by the president of the United States to recognize people who have made "an especially meri ...
. In a 1991 appearance on the '' MacNeil/Lehrer NewsHour'', Burger stated that the notion that
the Second Amendment The Second Amendment (Amendment II) to the United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first con ...
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". Burger died on June 25, 1995, from
congestive heart failure Heart failure (HF), also known as congestive heart failure (CHF), is a syndrome, a group of signs and symptoms caused by an impairment of the heart's blood pumping function. Symptoms typically include shortness of breath, Fatigue (medical), exc ...
at the age of 87, at Sibley Memorial hospital in
Washington, D.C. ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument The Washington Monument is an obelisk shaped building within the National Mall in Washington, D.C., built to commemorate Geor ...
All of his papers were donated to the
College of William and Mary The College of William & Mary (officially The College of William and Mary in Virginia, Abbreviation, abbreviated as William & Mary, W&M) is a public university, public research university in Williamsburg, Virginia. Founded in 1693 by letters pa ...
, where he had served as
Chancellor Chancellor ( la, cancellarius) is a title of various official positions in the governments of many nations. The original chancellors were the of Roman courts of justice—ushers, who sat at the or lattice work screens of a basilica or law cou ...
; however, they will not be open to the public until ten years after the death of
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and the ...
, the last surviving member of the Burger Court, per the donor agreement. Burger's casket lay in repose in the Great Hall of the
United States Supreme Court Building The Supreme Court Building houses the Supreme Court of the United States. Also referred to as "The Marble Palace," the building serves as the official workplace of the Chief Justice of the United States, chief justice of the United States and ...
. His remains are interred at
Arlington National Cemetery Arlington National Cemetery is one of two national cemeteries run by the United States Army. Nearly 400,000 people are buried in its 639 acres (259 ha) in Arlington, Virginia. There are about 30 funerals conducted on weekdays and 7 held on Sa ...
.


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 Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for ...
(ADR), particularly in its ability to ameliorate an overloaded justice system. In a speech given in front of the
American Bar Association The American Bar Association (ABA) is a voluntary association, voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities ar ...
, Chief Justice Burger lamented the state of the justice system in 1984, saying, "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." The Warren E. Burger Federal Courthouse in
Saint Paul, Minnesota Saint Paul (abbreviated St. Paul) is the List of capitals in the United States, capital of the U.S. state of Minnesota and the county seat of Ramsey County, Minnesota, Ramsey County. Situated on high bluffs overlooking a bend in the Mississip ...
, and the Warren E. Burger Library at his alma mater, the
Mitchell Hamline School of Law Mitchell Hamline School of Law is a Private university, private law school in Saint Paul, Minnesota. It is accredited by the American Bar Association (ABA) and offers full- and part-time legal education for its Juris Doctor (J.D.) degree. Hist ...
(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

He married Elvera Stromberg in 1933. They had two children, Wade Allen Burger (1936–2002) and Margaret Elizabeth Burger (1946–2017). Elvera Burger died at their home in
Washington, D.C. ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument The Washington Monument is an obelisk shaped building within the National Mall in Washington, D.C., built to commemorate Geor ...
, on May 30, 1994, at the age of 86.


See also

*
Demographics of the Supreme Court of the United States The demographics of the Supreme Court of the United States encompass the gender Gender is the range of characteristics pertaining to femininity and masculinity and differentiating between them. Depending on the context, this may include se ...
*
List of justices of the Supreme Court of the United States The Supreme Court of the United States is the highest-ranking judicial body in the United States. Its membership, as set by the Judiciary Act of 1869, consists of the chief justice of the United States and eight Associate Justice of the Supreme ...
* List of justices of the Supreme Court of the United States by court composition * List of law clerks of the Supreme Court of the United States (Chief Justice) *
List of United States Supreme Court justices by time in office A total of 116 people have served on the Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over al ...
* United States Supreme Court cases during the Burger Court


References


Sources

* Barker, Lucius J. Black Americans and the Burger Court: Implications for the Political System, 1973 Wash. U. L. Q. 747 (1973). * * Greenhouse, Linda. ''Nixon Appointee Eased Supreme Court Away from Liberal Era'', ''
The New York Times ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid d ...
,'' June 26, 1995. * * Schwartz, Bernard
''A History of the Supreme Court''
Oxford University Press . * Schwartz, Bernard, ed
''The Burger Court: Counter-Revolution or Confirmation?''
Oxford University Press, 1998 . *


Further reading

* * * * * Graetz, Michael J., and Linda Greenhouse, eds. ''The Burger Court and the Rise of the Judicial Right'' (Simon & Schuster, 2016). xii, 468 pp. * * *


External links

*

* Oyez
Supreme Court Media, Warren E. Burger.


Supreme Court Historical Society
Supreme Court History, the Burger Court
at Supreme Court Historical Society. * {{DEFAULTSORT:Burger, Warren E. 1907 births 1995 deaths 20th-century American judges American legal scholars American people of Swiss-German descent American Presbyterians Burials at Arlington National Cemetery Chancellors of the College of William & Mary Chief justices of the United States Judges of the United States Court of Appeals for the D.C. Circuit Minnesota lawyers Minnesota Republicans People from Saint Paul, Minnesota Presidential Medal of Freedom recipients United States Assistant Attorneys General for the Civil Division United States court of appeals judges appointed by Dwight D. Eisenhower United States federal judges appointed by Richard Nixon University of Minnesota alumni Washington, D.C., Republicans Watergate scandal investigators William Mitchell College of Law alumni