Burger, Warren Earl

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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."
—Warren Burger

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 [1973]) 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 [1973]) 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 [1983]), 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."

Further readings

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).

Significant Supreme Court Opinions of the Honorable Warren E. Burger, Chief Justice of the United States. 1984. Manila, Philippines: Philippine Bar Association.


Criminal Procedure; Freedom of Speech; Freedom of the Press; Obscenity.