Obituary: Warren Burger

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The Independent Online
Warren Earl Burger, lawyer: born St Paul, Minnesota 17 September 1907; partner, Boyeson, Otis, Brill & Faricy, St Paul 1933-53; assistant attorney general, civil litigation division, US Department of Justice 1953-56; judge, US Court of Appeals 1956-69; Chief Justice of the US Supreme Court 1969-86; married 1933 Elvera Stromberg (one son, one daughter); died Washington DC 25 June 1995.

In 1971 a young reporter from the Washington Post, assigned to cover the newspaper's legal struggle over publication of the secret "Pentagon Papers", ventured to doorstep the Chief Justice of the United States at his home over the weekend. He was more than a little surprised to be greeted by Chief Justice Warren Burger, in his dressing-gown, pointing a handgun at his unannounced visitor.

That image of a new-style, western Chief Justice, tough and conservative, was very much in line with what was expected when Warren Burger took over as the United States' leading judge from Earl Warren in 1969. American conservatives had been deeply troubled by the previous regime on the Supreme Court.

It was not only that the Warren court had handed down its momentous decision in Brown v Board of Education of Topeka (1954), ending racial segregation by finding that separate facilities (such as schools) were inherently unequal. Conservatives were troubled by a whole range of other decisions, such as Gideon, Mapp and Miranda, widely seen as soft on crime; such as Baker v Carr and Reynolds v Sims, seen as affecting constitutional precedents; not to mention cases on the sensitive issues of privacy and school prayer.

It fell to President Richard Nixon to appoint no fewer than four justices to the nine-judge court, and conservatives hoped that his nominees would sharply reverse this liberal thrust of the Warren court. It did nothing of the kind. A study of the Burger court, written in 1983, was subtitled "the counter-revolution that wasn't", and that is on the whole a fair summary of the way the court worked during Burger's time as Chief Justice. Burger came to the court from Minnesota with Associate Justice Harry Blackmun, who shocked conservatives with his decision in the leading abortion case Roe v Wade.

If Warren Burger never moved as far from his conservative origins as a federal circuit court judge as his fellow "Minnesota Twin", he certainly disappointed those who had expected him to lead a sharp break with the past.

Earl Warren had served as Chief Justice for 16 years, from 1953 to 1969, and Warren Burger beat him by serving from 1969 to 1986. It was a period of rapid political and social change in the United States, a period in which the liberal principles of the Kennedy and Johnson administration, and of the Warren court, were being increasingly challenged.

In particular, the Warren court had distinguished itself by a philosophy of judicial "activism". The Supreme Court, and federal judges in lower courts protected by its activist philosophy, did not hesitate to act, ordering detailed plans for bussing children to mixed schools, for example. The Burger court was expected to reverse this activist tendency, but did not.

Instead, as the great legal scholar Bernard D. Schwartz has written, the court under Burger "continued to be activist, rejecting more often than not the Holmes doctrine of judicial restraint". And Schwartz quoted another expert, Anthony Lewis of the New York Times, as saying, "We are all activist now." Under Warren, the court struck down 21 federal and 150 state statutes; under Burger, it invalidated 312 federal and no fewer than 288 state laws. And the laws struck down were at least as important.

As one of the more conservative members of his own court, Justice Potter Stewart, put it, the Burger court tended - like its predecessor - to "make policy judgments" that were more "legislative" than "judicial".

One of the Burger court's more significant decisions was in the Chadha case, in which it held unconstitutional the very widespread practice of the "legislative veto", a term for the procedure by which Congress had exerted its authority, in more than 200 statutes, to control the actions of the executive bureaucracy. This, the Burger court held, was a breach of the constitutional separation of powers between the presidency and the Congress.

Far more dramatic was the court's decision in a case that Chief Justice Burger deliberately took for himself. (It is within the prerogative of a Chief Justice to allocate the writing of opinions among the members of the court.) This was the appeal in United States v Nixon, a decision which led directly to the forced resignation, for the first time in history, of a President of the United States. Warren Burger had been appointed by Nixon, and his decision in the Pentagon Papers case, in which he found himself in a minority of three on the court in opposing publication of a secret official study of the Vietnam war, led many to suppose that he would be a reliably conservative Chief Justice.

Now Nixon was at bay, desperately trying to avoid being forced to hand over to the Special Watergate prosecutor the tape-recordings of his own Oval Office recording system which contained the "smoking gun"; evidence that Nixon had conspired to pervert the course of justice in relationship to the Watergate burglary. Burger was unmoved either by political sympathy or personal obligation. He resoundingly ordered Nixon to comply by handing over the tapes, and in the process not only hastened the first forced departure of a President from the White House, but also significantly broadened the Supreme Court's powers of judicial review.

Even more troubling to conservatives was the Burger court's decision in the landmark abortion case of Roe v Wade. In it, and in a subsequent decision in Bolton v Doe, the court outraged conservative and especially fundamentalist religious "pro-life" activists by declaring that a woman has a fundamental right to have an abortion performed. Shortly before his retirement in 1986, Burger said he thought that the decision in Roe ought to be reconsidered.

On the bench, in his votes, Chief Justice Burger looked the very model of a Supreme Court Justice from Hollywood's central casting, with sculptured features and flowing silver hair. Behind this imposing exterior there was concealed a shrewd judicial brain. Under his successor, William Rehnquist, the court finally made the tilt to the right which Burger had been expected to make. Burger, for his part, will be remembered as the consolidator of the activism of the Warren court, and of its shift in the emphasis of American law from property rights to personal rights.

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