Burger, Warren E. Summary

  • Last updated on November 11, 2022

Burger, who spent seventeen years on the Supreme Court, served the longest term as chief justice in the twentieth century, earning high praise for his achievement in judicial administration. As a jurist, Burger was most noted for his opinions on the separation of powers, desegregation, religion, obscenity, and procedure.

Burger was the fourth of seven children born to Charles Joseph and Katharine (Schnittger) Burger. His father worked as a railroad cargo inspector and salesman. Burger described his mother as running an “old-fashioned German house,” instilling “common sense” in her children. Burger always loved the U.S. Constitution and wanted to be a lawyer, even as a young boy. Suffering from polio at age eight, he was kept home from school for a year, and his teacher brought many biographies of great judges and lawyers for the boy to read.Johnson, Lyndon B.;nominations to the Court

Warren E. Burger

(Robert Oakes/Collection of the Supreme Court of the United States)

In high school, Burger was president of the student council, editor of the school paper, and a letterman in hockey, football, track, and swimming. He earned a scholarship from Princeton University but turned it down to stay at home and help support his family. Attending night school at the University of Minnesota from 1925 to 1927, he was president of the student council. He attended night classes at the St. Paul College of Law (later the William Mitchell College of Law) and graduated with his LL.B. magna cum laude in 1931. He sold life insurance while attending evening classes in college and law school.

Political Career

Burger started working in a law firm in 1931, made partner in 1935, and taught law at his alma mater. During the course of his law work, he met Republican Harold E. Stassen. Burger organized Stassen’s successful campaign for governor in 1938.

In 1948 Burger went to the Republican Party National Convention, where he met Richard M. Nixon, another Stassen supporter. At the 1952 Republican convention, when Dwight D. Eisenhower emerged as a leading presidential hopeful, Burger was the key figure in a floor decision shifting Stassen support to ensure Eisenhower’s nomination on the first ballot. Eisenhower was favorably impressed and in 1953 Burger was appointed U.S. assistant attorney general.

On June 21, 1955, Eisenhower nominated Burger to a judgeship on the District of Columbia Circuit Court of Appeals. His confirmation was stalled when discrimination charges were made by employees whom Burger had fired for incompetence. Burger was finally sworn in on April 13, 1956. Burger developed an early interest in court administration and worked with the American Bar Association to create an efficient and competent federal judiciary. His critique of “moral neglect” by the Supreme Court in decisions on insanity and self-incrimination gained him national attention.

Appointment to the Supreme Court

On May 21, 1969, Burger was nominated as chief justice by President Nixon. Burger was to be the “law and order” appointee for whom Nixon had campaigned. He was confirmed by a Senate vote of seventy-four to three on June 9, 1969, with numerous endorsements from leaders of the American Bar Association and other bar groups. Departing chief justice Earl Warren swore him in on June 23, 1969.

Burger served seventeen court terms as chief justice, a tenure as chief justice exceeded only by John Marshall, Roger Brooke Taney, and Melville W. Fuller. On June 17, 1986, President Ronald Reagan announced Burger’s resignation and the nomination of William H. Rehnquist to succeed Burger. On September 26, 1986, at age seventy-eight, Burger officially retired as chief justice.

Burger and Judicial Administration

Even Burger’s critics admit that he accomplished more in the area of judicial administration than anyone in U.S. legal history. Burger’s greatest accomplishment was his innovation of improvements in judicial operations.

Burger contributed to judicial administration in at least six major areas. He added new administrative support to the Court with an administrative assistant to the chief justice, judicial fellows, public relations professionals, librarians, clerks, and vast improvements to the law library and technology of the Court. He continued his efforts with the American Bar Association in judicial education programs with the National Judicial College. He developed the Federal Judicial Center and National Center for State Courts to gather data on courts, research judicial reforms, and train and inform the judiciary. He convened lectures and colloquia to bring together key decision makers to discuss judicial administration. He urged training in actual legal skills and litigation practice in law schools, continuing education for lawyers, and programs such as the American Inns of Court. Burger is considered the father of alternative dispute resolution and court mediation, arbitration, and other alternatives to litigation.

Burger believed the greatest threat to the Court was its case docket overload, Workloadwhich had climbed from 4,202 cases and 88 signed opinions in the 1969 term to 5,158 cases and 161 signed opinions in the 1985 term. Burger was successful in lobbying Congress to limit the Court’s mandatory jurisdiction docket, narrow federal three-judge court jurisdiction, place sanctions against attorneys for abuse of process, and create a special Court of Appeals for the Federal Circuit for expertise in patent, copyright, and trademark. He was not successful in such reforms as an Intercircuit Tribunal to take a burden off the Court for resolving conflicts between the federal circuits. Burger wanted a central judicial administrator similar to the Lord Chancellor of England, which did not come to fruition.

Burger as a Jurist

Burger proved to be difficult to categorize as a jurist. He was supposed to have been “Nixon’s man” and lead the Court in a conservative revolution. Instead he rejected Nixon’s arguments for executive privilege, limited congressional oversight of the bureaucracy, joined to establish abortion rights, upheld school busing, and defended freedom for religious minorities. Some analyses conclude that Burger was neither conservative nor liberal but pragmatic and concerned with street-level implementation and administrative aspects of decisions. He was more concerned with efficiency and democratic accountability than in preserving tradition or some other conservative impulse.

As chief justice, Burger wrote 265 opinions of the Court in addition to separate concurring and dissenting opinions. Although this was a high output, most of his opinions have not endured as landmark decisions. Greatly distracted by judicial administration matters, Burger tended to assign the landmark decisions to others, and he believed in a limited role of the judiciary in resolving public controversies. However, he was most noted for three opinions on the separation of powers in the federal government, as well as a few opinions on desegregation, religion, obscenity, and procedure.

Separation of Powers

Burger’s lifelong love for the Constitution is demonstrated by three landmark decisions on separation of powersSeparation of powers. In United States v. Nixon[case]Nixon, United States v.[Nixon, United States v.] (1974), a unanimous Court ruled against President Nixon and ordered him to comply with subpoenas of the special prosecutor investigating the Watergate Hotel burglary and other crimes. Burger rejected Nixon’s argument of executive privilege to keep confidential the tape recordings of White House discussions. Separation of powers was preserved by the Court not only by affirming the special prosecutor’s power of subpoena over the president but also in this “declaration of independence” of the Court by Burger and three other justices appointed by Nixon.

In Immigration and Naturalization Service v. Chadha[case]Immigration and Naturalization Service v. Chadha[Immigration and Naturalization Service v. Chadha] (1983), Burger preserved separation of powers between Congress and the federal bureaucracy by striking down the legislative veto. The legislative veto allowed Congress to delegate duties to the Immigration and Naturalization Service to decide to deport individual aliens yet also revoke the specific immigration service decision to deport Mr. Chadha in a one-house legislative action. Although used by Congress in more than two hundred statutes since the 1930’s, Burger reasoned that separation of powers did not allow Congress to take back agency decisions in this piecemeal fashion.

Bowsher v. Synar[case]Bowsher v. Synar[Bowsher v. Synar] (1986) was Burger’s last opinion of the Court. The Gramm-Rudman-Hollings Act of 1985 had created the office of comptroller general to identify spending reductions as mandated by the statute to balance the federal budget, an executive function. However, the comptroller general was removable from office by Congress. Burger concluded this crossover of function and removal powers was unconstitutional.

Other Landmark Decisions

Burger upheld the use of busing and other remedies to desegregate public schools in Swann v. Charlotte-Mecklenburg Board of Education[case]Swann v. Charlotte-Mecklenburg Board of Education[Swann v. Charlotte-Mecklenburg Board of Education] (1971). He also developed a three-part constitutional test for public benefits to religion in Lemon v. Kurtzman[case]Lemon v. Kurtzman[Lemon v. Kurtzman] (1971). Burger defended the freedom of religious minorities in Wisconsin v. Yoder[case]Wisconsin v. Yoder[Wisconsin v. Yoder] (1972), refusing to require Amish parents to send their children to public high schools. His definition of obscenity in Miller v. California[case]Miller v. California[Miller v. California]; Paris Adult Theatre v. Slaton[case]Paris Adult Theatre v. Slaton[Paris Adult Theatre v. Slaton] (1973) allowed for local “contemporary community standards” rather than national definitions of obscenity. Other landmark decisions by Burger are not as popularly known to the general public but concern more technical court procedures, such as jurisdiction, and are in keeping with his intense interests in judicial administration.

Critics

Burger gathered many critics in his long tenure as chief justice. Scholars such as Vincent Blasi, in The Burger Court: The Counter-Revolution That Wasn’t (1983), described him as a man of limited capacity with no discernable coherent philosophy. Burger’s working-class background, night-school legal education, and pragmatic philosophy have all been subject to intense personal attack. Bob Woodward and Scott Armstrong in The Brethren: Inside the Supreme Court (1979) present a dismal portrait of Burger’s leadership on the Court, alleging that even the old friendship between Harry A. Blackmun and Burger went sour. Justices Thurgood Marshall, John Paul Stevens, Potter Stewart, and Blackmun publicly aired their complaints about the Court’s conflicts along with bitter personal criticisms of Burger.

However, Justice William J. Brennan, Jr., credited Burger with “boundless considerateness and compassion for the personal and family problems of every member of the Court” that kept relations cordial between justices of sharply divided philosophies. Justice Powell also claimed that good relations and comradeship existed between justices, and Justice Blackmun claimed to remain Burger’s best friend to the end.

A Man and the Constitution

Before resigning from the Court, Burger was appointed chairman of the Commission on the Bicentennial of the Constitution of the United States by President Reagan in 1985. After resigning as chief justice, he regularly worked double shifts on the commission through the bicentennial of the ratification of the Bill of Rights in 1991. Burger believed it was more than coincidence that the two-hundredth birthday of the Constitution on September 17, 1987, was also his eightieth birthday. He described the greatest decisions of the Court in a book, It Is So Ordered: A Constitution Unfolds (1995).

Further Reading
  • Two comprehensive surveys of Burger’s tenure as chief justice are Tinsley E. Yarbrough’s The Burger Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2000) and Earl M. Maltz’s The Chief Justiceship of Warren Burger, 1969-1986 (Columbia: University of South Carolina Press, 2000). Burger’s personal papers are at the William Mitchell School of Law in St. Paul, Minnesota, and library staff at the Loyola University School of Law prepared Warren E. Burger: A Bibliography of Works Written by and About the Chief Justice (New Orleans, La.: Loyola University School of Law, 1984). Burger’s account of his time on the Supreme Court is It Is So Ordered: A Constitution Unfolds (New York: W. Morrow, 1995). The Philippine Bar Association released a tribute book of Burger’s opinions: Significant Supreme Court Opinions of the Honorable Warren E. Burger, Chief Justice of the United States (Manila, Philippines: Philippine Bar Association, 1984). In spite of Burger’s importance on the Court, few scholarly biographies exist. Stanley H. Friedelbaum has a scholarly and well-written chapter on Burger’s life on the Court in The Burger Court: Political and Judicial Profiles, edited by Charles Lamb and Steven Halpern (Urbana: University of Illinois Press, 1991). Carl Tobias surveyed Burger’s many contributions to judicial administration in “Warren Burger and the Administration of Justice,” Villanova Law Review 41 (December 15, 1996): 505-519. Phillip Craig Zane focused on Burger’s concurring and dissenting opinions in his study, “An Interpretation of the Jurisprudence of Chief Justice Warren Burger,” Utah Law Review 1995 (Fall, 1995): 975-1008. A symposium in Oklahoma Law Review 45 (Spring, 1992): 1-168, was entitled “The Jurisprudence of Chief Justice Warren E. Burger” and included scholarly analyses of Burger’s opinions in several areas of law. Other related books by scholars that examine the Burger Court include Arthur L. Galub’s The Burger Court, 1968-1984 (Millwood, N.Y.: Associated Faculty Press, 1986), Vincent Blasi, ed., The Burger Court: The CounterRevolution That Wasn’t (New Haven, Conn.: Yale University Press, 1983), and Francis Graham Lee, ed., Neither Conservative nor Liberal: The Burger Court on Civil Rights and Liberties (Malabar, Fla.: R. E. Krieger, 1983). Popular books tend to focus on criticism of the Burger Court but give some insights into Burger’s life. They include Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court (New York: Avon Books, 1979), Herman Schwartz’s The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986 (New York: Viking Press, 1987), and Bernard Schwartz’s The Ascent of Pragmatism: The Burger Court in Action (Reading, Mass.: Addison-Wesley, 1990). Bernard Schwartz has also edited The Burger Court: Counter-Revolution or Confirmation? (New York: Oxford University Press, 1998), which contains essays included by justices, journalists, feminists, and lawyers. Of course, many fine tributes and symposia have been assembled both surrounding Burger’s retirement from the Court in 1986 and upon his death in 1995. The more complete of these tributes, such as Texas Law Review 74 (December, 1995): 207-236 and William Mitchell Law Review 22 (Fall, 1996): 1-65, feature writings by fellow justices, law clerks, judicial fellows, and close professional colleagues.

Blackmun, Harry A.

Bowsher v. Synar

Bureaucratization of the judiciary

Chief justice

Immigration and Naturalization Service v. Chadha

Lemon v. Kurtzman

Miller v. California and Paris Adult Theatre v. Slaton

Nixon, Richard M.

Nixon, United States v.

Separation of powers

Swann v. Charlotte-Mecklenburg Board of Education

Categories: History Content