Burger, Warren

Warren Burger, chiefjustice of the United States, 1969–1986.

Warren Burger, chiefjustice of the United States, 1969–1986.

Warren E. Burger ( 1907–1995 since 1956 the William Mitchell College of Law ), earning his law degree in 1931. He practiced law until 1953. Active in civic affairs, Burger served as the president of the St. Paul Jaycees. He also taught part-time at the St. Paul College of Law. Burger was married in 1933, and the couple had a son and a daughter.

A supporter of the presidential ambitions of Minnesota governor Harold Stassen in 1948 and the 1952 presidential campaign of Dwight Eisenhower, Burger drew the attention of the national Republican Party leadership. In 1953 President Eisenhower named him assistant attorney general for the Civil Division of the Department of Justice, and in 1955 Eisenhower appointed him to the United States Court of Appeals for the District of Columbia Circuit. Serving as a member of this court until 1969, Burger's opinions frequently conflicted with those of his more liberal colleagues on regulatory and criminal justice cases. Seeking a conservative Supreme Court upon the retirement of Chief Justice Earl Warren, President Richard Nixon nominated Burger to the position, and the Senate overwhelmingly voted to confirm the appointment.


Chief Justice Burger's voting record was most supportive of business litigants and least supportive of civil liberties claimants. However, he failed to enunciate a specific constitutional philosophy. Rather, he devoted time to matters of judicial administration such as the salary, benefits, and staff of the federal judiciary. To provide assistance in judicial administration he campaigned for the establishment of the National Center for State Courts and the Institute for Court Management. His efforts to change voting and opinion assignment procedures and other aspects of the Supreme Court's internal operations, however, created tensions with the other justices that persisted during his service. His proposal for a national court of appeals to reduce the caseload of the Supreme Court failed to win congressional support.

Burger's most politically significant opinion addressed the Nixon administration's involvement in the 1972 burglary of the Democratic Party headquarters at the Watergate building in Washington, DC. At issue was whether a federal judge could order the administration to provide recordings of presidential discussions that might include evidence of a criminal conspiracy. Reportedly after much internal wrangling about and revision of Burger's draft opinion, Burger produced a unanimous opinion that held that the due process clause required the recordings be made available as evidence. However, the opinion also recognized that the separation of powers meant that the presidency has a limited zone of inherent executive privilege for private discussions free of interference by the other branches that is “weighty indeed and entitled to great respect” ( United States v. Nixon, 418 U.S. 683, 712 [1974] ). Other of his opinions supported the executive's inherent powers in foreign affairs ( Haig v. Agee, 453 U.S. 280 [1981] ).

In opinions about congressional powers, Burger voided Congress's effort to empower the president to modify appropriations laws in an effort to avoid budget deficits ( Bowsher v. Synar, 478 U.S. 714 [1986] ). He also invalidated a congressional effort to veto aspects of the executive branch's implementation of a law already passed by Congress ( Immigration and Naturalization Service v. Chadha, 462 U.S. 919 [1983] ). In these cases he relied on constitutional text to reject pragmatic justifications for the creation of new executive and congressional roles in governance. Although he wrote few opinions about federal-state relations, he consistently voted to limit the economic regulatory authority of Congress relative to that of the states ( e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 [1985] ). He also voted to limit access to courts by parties seeking to file class-action suits about the environment, and violations of taxpayer rights ( Sierra Club v. Morton, 405 U.S. 727 [1972]; Valley Forge Christian College v. Americans Unitedfor Separation of Church and State, Inc., 454 U.S. 464 [1982] ).

In a noteworthy opinion about the free exercise of religion, Burger applied a mix of existing standards and historical analysis to exempt Amish pupils from a mandatory school attendance policy ( Wisconsin v. Yoder, 406 U.S. 205 [1972] ). In a no establishment of religion clause case, he provided three criteria for the assessment of whether a law created a religious establishment ( Lemon v. Kurtzman, 403 U.S. 602 [1971] ). Although debated and modified by the Court and Burger himself, his criteria became the starting point for discussion of no establishment clause disputes.

Burger's freedom of expression opinions often supported governmental regulation of speech over the claims of speakers. His opinions in pornography cases enlarged the categories of content that could be found obscene and approved greater state and federal regulation of materials found obscene ( Miller v. California, 413 U.S 15 [1973] ). In cases about the newspaper publication of classified documents ( New York Times v. United States, 403 U.S 713 [1971] ) and media access to jails ( Houchins v. KQED, 438 U.S. 1 [1978] ) he wrote opinions hostile to press freedom; however, his opinions secured a right for the press to attend trials and narrowed the use of gag orders that limited media coverage of litigation ( Richmond Newspapers v. Virginia, 448 U.S. 555 [1980]; Nebraska Press Association v. Stuart, 427 U.S. 539 [1976] ).

Burger's opinions and votes on racial equality issues empowered federal judges in both the South and the North to use a variety of remedies, including busing of pupils, to achieve school desegregation ( Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 [1971] ). However, in a later case he limited busing to only the district found to practice racial segregation of pupils ( Milliken v. Bradley, 418 U.S. 717 [1974] ). He voted against a university affirmative action program that used a racial quota ( Regents of the University of California v. Bakke, 438 U.S. 265 [1978] ), but he allowed the use of racial criteria in some but not all of his employment discrimination opinions. Unwilling to extend equal protection beyond issues of race, he opposed equal protection claims by women, homosexuals, and the poor ( Craig v. Boren, 429 U.S. 190, 215–17 [1976], dissenting; Bowers v. Hardwick, 478 U.S. 186, 196–97 [1986], concurring; San Antonio Independent School District v. Rodriguez, 411 U.S. 1 [1973] ).

In criminal justice cases Burger's votes and opinions often sought to narrow the meaning of limitations on searches and seizures through the creation of exceptions to the exclusion of evidence obtained without a warrant ( Adams v. Williams, 407 U.S. 143 [1972]; United States v. Robinson, 414 U.S. 218 [1973]; United States v. Leon, 468 U.S. 897 [1984]; Nix v. Williams, 467 U.S. 431 [1984] ). His opinions and votes about self-incrimination also narrowed the scope of prior decisions and expanded the kinds of defendant statements admissible as evidence ( Rhode Island v. Innis, 446 U.S. 291 [1980]; Brewer v. Williams, 430 U.S. 387, 415–29 [1977], dissenting; Moran v. Burbine, 475 U.S. 412 [1986] ). He also usually favored the capital punishment policies of the states ( Lockett v. Ohio, 438 U.S. 586 [1978] ).

In 1986 Burger retired and became chair of the Commission on the Bicentennial of the United States Constitution. From 1986 to1993 he was the chancellor of the College of William and Mary. He died in Washington, DC, in 1995.

Chief Justice Burger did not have a profound influence on intellectual conceptions of constitutional governance. He did not regularly employ a specific jurisprudential approach to constitutional issues, and he was not the Court's intellectual leader. Although his opinion in the Watergate case influenced the resignation of President Nixon, by joining with other justices appointed by Republican presidents Burger contributed to a gradual reduction of judicial support for civil liberties claimants, a refusal to recognize new rights claimants, and weaker protection for the rights of criminal defendants. He also rejected Congress's pragmatic efforts to modify the separation of powers in the interest of more effective governance. Politically his votes and opinions thus contributed to a constitutional limitation on the ability of all levels of government to adopt progressive policies and provide benefits, political power, and a role in governance to historically disadvantaged groups such as African Americans and women.

SEE ALSO Brennan, William ; Rehnquist, William ; Supreme Court of the United States ; United States v. Nixon ; Warren, Earl .


Blasi, Vincent, ed. The Burger Court: The Counter-Revolution that Wasn't. New Haven, CT: Yale University Press, 1983.

Lamb, Charles M., and Stephen C. Halpern, eds. The Burger Court: Political and Judicial Profiles. Urbana: University of Illinois Press, 1991.

Maltz, Earl M. The ChiefJusticeship of Warren Burger, 1969–1986. Columbia: University of South Carolina Press, 2000.

Schwartz, Bernard. The Ascent of Pragmatism: The Burger Courtin Action. Reading, MA: Addison-Wesley, 1990.

Schwartz, Bernard, ed. The Burger Court: Counter-Revolution or Confirmation? New York: Oxford University Press, 1998.

Schwartz, Herman, ed. The Burger Years: Rights and Wrongs in the Supreme Court, 1969–1986. New York: Viking, 1987.

Richard A. Brisbin Jr.
West Virginia University