Warren Burger at a press conference in May 1969 shortly after he was nominated to be Chief Justice of the United States.
Warren Earl Burger (September 17, 1907–June 25, 1995) was Chief Justice of the United States from 1969 to 1986, longer than anyone else in the 20th century. His court delivered major decisions on abortion, capital punishment and school desegregation. He worked hard for the adoption of modern management techniques in the nation's judicial system.
Burger was born in Saint Paul, Minnesota, one of seven children. His parents were of Swiss-German descent. His grandfather, Joseph Burger, had emigrated from Switzerland and joined the Union Army when he was 14. He fought and was wounded in the Civil War. He was awarded the Medal of Honor. Warren Burger grew up on the family farm near the edge of St. Paul. He attended John A. Johnson High School, where he was president of the student council. He also played hockey, football, track, and swimming. While in high school, he wrote articles on high school sports for local newspapers. He graduated in 1925.
That same year, Burger also worked with the crew building the Robert Street Bridge, a crossing of the Mississippi River in St. 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.
He attended night school at the University of Minnesota, while selling insurance for Mutual Life Insurance. He then enrolled at what was then known as the St. Paul College of Law, now known as William Mitchell College of Law, receiving his degree in 1931. He took a job at the firm of Boyensen, Otis and Faricy ( which became Faricy, Burger, Moore & Costello). He also taught for twelve years at St. Paul College of Law. Harry Blackmun, his future colleague on the Supreme Court of the United States, was a longtime friend.
His political involvement started slowly, but became powerful. He supported Minnesota governor Harold E. Stassen's unsuccessful pursuit of the Republican nomination for president in 1948. In 1952, at the Republican convention, he played a key role in Dwight D. Eisenhower's nomination by delivering the Minnesota delegation. After he was elected, President Eisenhower appointed him 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 F. Peters, a Yale 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. In 1956, Eisenhower appointed him to a position on the United States Court of Appeals for the District of Columbia Circuit. He remained on the Court of Appeals for 13 years.
His road to the Chief Justice position was not direct. In 1968, Earl Warren, the Chief Justice, announced his intention to resign. President Lyndon Johnson nominated Abe Fortas to the position, but the Senate did not confirm him. Warren then delayed his resignation for a year. President Richard Nixon nominated Burger to the position. Burger had first caught Nixon's eye when U.S. News and World Report had reprinted a 1967 speech that Burger had given at Ripon College. In it, he 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 a prominent critic of Chief Justice Earl Warren and argued in favour of a very literal constructionist reading of the US Constitution. Because of these views, in 1969 President Richard Nixon appointed Burger to succeed Warren, who in turn swore in the new chief on June 23 that year. In his presidential campaign, Nixon had pledged to appoint a strict constructionist as Chief Justice.
The Burger Court
In the early 1970s, it became apparent that Burger was not going to turn the clock back on the rulings of the Warren Court, as the Court issued rulings supporting busing to reduce de facto racial segregation in schools and invalidating all death penalty laws then in force, although Burger dissented from the latter decision. In the most controversial ruling of his term, Roe v. Wade, Burger voted with the majority to recognize a right to abortion.
Burger was a strong supporter of separation of powers and the maintenance of checks and balances between the branches of government. In 1974 he ruled against President Nixon's attempt to keep several memos and tapes relating to the Watergate scandal private, prompting Nixon to resign in order to avoid impeachment. In the 1983 case of Immigration and Naturalization Service v. Chadha, 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 joined the Court majority in voting to reinstate the death penalty in 1976, and in 1983 he vigorously dissented from the Court's holding in the case of Solem v. Helm that a sentence of life imprisonment for issuing a fraudulent check in the amount of $100 constituted cruel and unusual punishment.
With William Rehnquist and Sandra Day O'Connor joining the Court during Burger's tenure on the bench, the stage was set for the more conservative consensus which has developed since the mid-1990s.
Overall Burger's was not a strong voice on the court. He often only wrote straightforward and uncontroversial opinions and avoided those in which the court was evenly split. Instead, he poured his energy into the other role of the Chief Justice, administering the nation's legal system. He initiated the National Institute for State Courts, the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards. He initiated the annual State of the Judiciary speech given by the Chief Justice to the American Bar Association. Some detractors thought his emphasis on the mechanics of the judicial system trivialized the office of Chief Justice.
Burger retired on September 26, 1986, in part to lead the campaign to mark the 1987 bicentennial of the United States Constitution. He died in 1995 of congestive heart failure at the age of 87 in Washington, D.C.
In the late sixties and early seventies, Burger helped to establish the National Center for State Courts that is now located in Williamsburg, Virginia.
He married Elvera Stromberg in 1933. They had two children, Wade Allen Burger and Margaret Elizabeth Burger. His wife died in May 1994.
- Nixon Appointee Eased Supreme Court Away from Liberal Era, By Linda Greenhouse, New York Times, June 26, 1995.