Warren E. Burger

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

Warren Burger
Official portrait, 1986
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.
Resting placeArlington National Cemetery
Political partyRepublican
Spouse
Elvera Stromberg
​
​
(m. 1933; died 1994)​
Children2
Education
St. Paul College of Law (LLB)
Signature
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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, 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
.

In 1969, President

William H. Rehnquist
, who had served as an associate justice since 1972.

In 1974, Burger wrote for a unanimous court in

INS v. Chadha struck down the one-house legislative veto
.

Although Burger was nominated by a conservative president,

desegregation[3] during his tenure.[4]

Early life

Burger was born in Saint 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,[citation needed] were of Austrian German descent. He was raised Presbyterian.[5] His grandfather, Joseph Burger, was born in Bludenz, Vorarlberg, had emigrated from Tyrol, Austria and joined the Union Army when he was 13. 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 one of the youngest captains 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

John A. Johnson High School, where he was president of the student council.[6] He competed in hockey, football, track, and swimming.[6] While in high school, he wrote articles on high school sports for local newspapers.[6] 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.[6]

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

Jaycees.[6] He also taught for twelve years at William Mitchell.[6] 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.[6] From 1948 to 1953, he served on the governor of Minnesota's interracial commission, which worked on issues related to racial desegregation.[6] 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.[6]

Burger's political career began uneventfully, but he soon rose to national prominence. He supported Minnesota Governor Harold Stassen's unsuccessful pursuit of the Republican nomination for president in 1948.[7] At the 1952 Republican National Convention, Burger played a key role in Dwight D. Eisenhower'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 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

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.

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 United States Supreme Court
.

Chief Justice

Further information: Burger Court

Nomination and confirmation

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

In June 1968,

associate justice Abe Fortas to the position, but a Senate filibuster blocked his confirmation, and Johnson withdrew the nomination. Richard Nixon was elected president in November 1968, and Johnson did not make another nomination before his term as president ended on January 20, 1969.[8]

Burger was nominated by President Nixon to succeed Earl Warren on May 23, 1969.[9] The United States Senate Committee on the Judiciary hearing on Burger's nomination took place on June 3, 1969.[10] It was characterized as having been friendly, and saw Burger as the sole individual to deliver testimony.[11] The hearing was reported as having taken only an hour and forty minutes.[12] Afterwards, the committee held a five-minute private session in which they voted unanimously to report favorably on his nomination.[10][11] The Senate confirmed Burger to the court by a 74–3 vote on June 9, 1969,[9][10] and he took the judicial oath of office on June 23, 1969.[13]

Remaking the Supreme Court had been a theme in Nixon's presidential campaign,

Fund crisis,[14] 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.[15] 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,

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

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 in October 1973, before Gerald Ford was appointed to succeed
him.

Jurisprudence

Official portrait of Warren Burger

The Court issued a unanimous ruling,

Thornburgh v. American College of Obstetricians and Gynecologists
(1986).

On July 24, 1974, Burger led the Court in a unanimous decision in

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".[16] The actual final opinion was largely Brennan's work, but each justice wrote at least a rough draft of a particular section.[17] 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.[18] 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.[19] 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.[20]

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

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 dissent,[21] but defended it as constitutional.

Leadership

With Betty Ford between them, Chief Justice Burger swears in President Gerald Ford following the resignation of Richard Nixon on August 9, 1974

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.[22] 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.[23] 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.[citation needed] Despite his reputation for being imperious, he was well-liked by the law clerks and judicial fellows who worked with him.[24]

Burger drew internal controversy within the Supreme Court throughout his tenure, as was revealed in

Lewis Powell allegedly referred to him as "the great white doughnut", an attack on both his intellect and physical appearance.[27]

Consequently, the Burger Court was described as his "in name only".

The Nine that by the time of his departure in 1986, Burger had alienated all of his colleagues to one degree or another.[30] 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.[31]

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 had said that the greatest opposition to Lillie came from Chief Justice Burger.[32] Dean indicated that Burger threatened to resign over the nomination.[33]

Views on homosexuality

Burger was deeply prejudiced against

gay rights advocates to work to overturn sodomy laws, eventually succeeding in the 2003 case Lawrence v. Texas.[39]

Later life and death

Burger's burial site, next to his wife's, at Arlington National Cemetery

Burger left office on September 26, 1986,

United States Constitution. He was succeeded as chief justice by William Rehnquist.[40] He served longer than any other chief justice appointed in the 20th century.[41]

In 1987,

James Madison Award for Distinguished Public Service.[42] 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 any kind of weapon "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".[43]

Burger died on June 25, 1995, from

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. O'Connor died on December 1, 2023.[45][46]

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.[47]

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, 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."[48] The Warren E. Burger Federal Courthouse[49] in Saint Paul, Minnesota, and the Warren E. Burger Library[50] 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

He married Elvera Stromberg in 1933. They had two children, Wade Allen Burger (1936–2002) and Margaret Elizabeth Burger (1946–2017).[51] Elvera Burger died at their home in Washington, D.C., on May 30, 1994, at the age of 86.[47]

See also

References

  1. ISBN 978-1439126349
    . Retrieved September 11, 2022.
  2. ^ "Perceived Qualifications and Ideology of Supreme Court Nominees, 1937–2012" (PDF). SUNY at Stony Brook. Archived from the original (PDF) on February 15, 2017. Retrieved April 4, 2012.
  3. ^ Barker, Lucius J. (Autumn 1973). "Black Americans and the Burger Court: Implications for the Political System". Washington University Law Review. 1973 (4): 747–777. Archived from the original on January 21, 2019. Retrieved December 28, 2017 – via Washington University Law Review Archive.
  4. ^ Earl M. Maltz, The Coming of the Nixon Court: The 1972 Term and the Transformation of Constitutional Law (University Press of Kansas; 2016)
  5. ISBN 9781641142687
    .
  6. ^ a b c d e f g h i j k l m "Warren E. Burger (1907–1995)". Uscivilliberties.org. Civil Liberties in the United States. December 1, 2012. Archived from the original on November 8, 2017. Retrieved July 19, 2019.
  7. ^ Osro Cobb, Osro Cobb of Arkansas: Memoirs of Historical Significance, Carol Griffee, ed. (Little Rock, Arkansas: Rose Publishing Company, 1989), p. 99
  8. ^ a b Hindley, Meredith (October 2009). "Supremely Contentious: The Transformation of "Advice and Consent"". Humanities. Vol. 30, no. 5. National Endowment for the Humanities. Retrieved February 22, 2022.
  9. ^ a b "Supreme Court Nominations (1789-Present)". Washington, D.C.: United States Senate. Retrieved February 22, 2022.
  10. ^ a b c McMillion, Barry J.; Rutkus, Denis Steven (July 6, 2018). "Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President" (PDF). Washington, D.C.: Congressional Research Service. Retrieved March 9, 2022.
  11. ^ a b Graham, Fred P. (June 4, 1969). "Burger Approved by Senate Panel; A Unanimous Vote Follows Friendly Questioning -- Protester Is Barred". The New York Times. Retrieved March 12, 2022.
  12. ^ Biskupic, Joan (June 26, 1995). "Ex-chief Justice Warren Burger Dead at Age 87". Washington Post. Retrieved March 12, 2022.
  13. ^ a b "Justices 1789 to Present". Washington, D.C.: Supreme Court of the United States. Retrieved February 22, 2022.
  14. ^ "The Checkers Speech After 60 Years". The Atlantic. September 22, 2012. Archived from the original on September 27, 2012. Retrieved September 23, 2012.
  15. ^ Morris, Jeffrey B. (June 18, 2019). "The Fiftieth Anniversary of Warren Burger's Appointment as Chief Justice". Yorba Linda, California: Richard Nixon foundation. Retrieved February 22, 2022.
  16. ^ Eisler 1993, p. 251.
  17. ^ Eisler 1993, pp. 251–253.
  18. ^ Eisler 1993, p. 252.
  19. ^ Eisler 1993, p. 254.
  20. ^ Eisler 1993, pp. 254–255
  21. ^ "Furman v. Georgia, 408 U.S. 238 (1972)". Justia Law. Archived from the original on October 30, 2021. Retrieved October 30, 2021.
  22. ^ Warren E. Burger, Conference on Supreme Court Advocacy, 33 Catholic U. L.Rev. 525–526 (1984)
  23. ^ 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.
  24. ^ Bonventre, Vincent (1995), Professional Responsibility: Conclusion, 46 Syracuse L. Rev. 765, 793 (1995), Syracuse_Law_Review.
  25. ^ a b "Reagan's Mr. Right". Time. June 30, 1986. Archived from the original on December 20, 2011. Retrieved May 27, 2010.
  26. ^ Greenhouse 2005, p. 157.
  27. ISBN 9780465015146
    . Retrieved January 6, 2022.
  28. ^ a b "Reagan's Mr. Right". Time. June 30, 1986. Archived from the original on December 11, 2008. Retrieved May 27, 2010.
  29. ^ Greenhouse 2005, p. 234.
  30. ^ Toobin, Jeffrey (2005), The Nine: Inside the Secret World of the Supreme Court, Doubleday.
  31. ^ Greenhouse 2005, pp. 154–157.
  32. ISBN 9781479816019
    .
  33. ^ "'The Rehnquist Choice' by John Dean". Pittsburgh Post-Gazette. December 30, 2001.
  34. ISBN 9781574417036
    .
  35. ^ "Justice White's papers reveal Bowers debate". Law.com. Archived from the original on October 30, 2021. Retrieved October 30, 2021.
  36. ISBN 9780429972621
    .
  37. ^ Burger, Warren E. "Bowers v. Hardwick/ Concurrence Burger". Justia. Retrieved January 3, 2022.
  38. ISBN 9780465015146
    . Retrieved January 7, 2022.
  39. ^ Sheyn, Elizabeth. "The short heard around the LGBT world" (PDF). Journal of Race, Gender and Ethnicity. 4. Archived (PDF) from the original on October 27, 2021. Retrieved October 30, 2021.
  40. ^ "Examining the legacy of Chief Justice Warren Burger". constitution Daily. Philadelphia, Pennsylvania: National Constitution Center. June 9, 2021. Retrieved February 22, 2022.
  41. ^ Supreme Court History, the Burger Court Archived October 6, 2008, at the Wayback Machine at Supreme Court Historical Society.
  42. ^ "Archived copy" (PDF). Archived from the original (PDF) on December 26, 2012. Retrieved May 15, 2012.{{cite web}}: CS1 maint: archived copy as title (link)
  43. ^ Stevens, John Paul (April 11, 2014). "Opinion: The five extra words that can fix the Second Amendment". Washington Post. Archived from the original on July 23, 2017. Retrieved January 25, 2024.
  44. ^ Linda Greenhouse (June 26, 1995). "Warren E. Burger Is Dead at 87; Was Chief Justice for 17 Years". The New York Times. Archived from the original on June 13, 2021. Retrieved June 13, 2021.
  45. ^ "Warren E. Burger Collection". William & Mary Libraries. December 8, 2010. Archived from the original on July 17, 2019. Retrieved July 17, 2019.
  46. ^ Schechter, Ute (December 8, 2010). "Warren E. Burger Collection". William & Mary Libraries. Archived from the original on May 15, 2021. Retrieved June 17, 2022. In accordance with the donor agreement, the Warren E. Burger Papers are closed to researchers until at least 2032.* * The deed of gift specifies that the papers are to remain closed to researchers until 10 years after the last Justice who served with Warren E. Burger on the Supreme Court has passed away, or 2026, whichever comes later.
  47. ^ a b "Elvera S. Burger, Supreme Court Spouse". www.arlingtoncemetery.net. Archived from the original on October 7, 2012. Retrieved September 9, 2012.
  48. ^ "FSM 3 Intrm. 015-017". www.fsmlaw.org. Archived from the original on March 26, 2009. Retrieved February 7, 2009.
  49. ^ "Warren E. Burger Federal Building — U.S. Courthouse - St. Paul, Minnesota". www.ryancompanies.com. Archived from the original on November 20, 2008. Retrieved February 7, 2009.
  50. ^ "Warren E. Burger Library – Mitchell Hamline School of Law". MitchellHamline.edu. Archived from the original on December 31, 2017. Retrieved December 29, 2017.
  51. ^ "Mary Rose Obituary". Washington Post. Legacy.com. December 24, 2017. Archived from the original on August 16, 2018. Retrieved August 15, 2018.

Sources

Further reading

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Preceded by Judge of the United States Court of Appeals for the District of Columbia Circuit
1956–1969 		Succeeded by
Preceded by Chief Justice of the United States
1969–1986 		Succeeded by
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