Warren Earl Burger

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 Far-
icy, Burger,Moore, and Costello. Burger concen-
trated 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 pol-
itics.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.

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 WAR-
REN, 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-mak-
ing 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.

CROSS-REFERENCES
Criminal Procedure; Freedom of Speech; Freedom of the
Press; Obscenity.