Warren E. Burger

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Lore & Background

Warren Earl Burger was born in Saint Paul, Minnesota, in 1907, one of seven children. He 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 Richard Nixon nominated Burger to succeed Earl Warren as Chief Justice, and Burger won Senate confirmation with little opposition. He did not emerge as a strong intellectual force on the Court, but sought to improve the administration of the federal judiciary. He also helped establish the National Center for State Courts and the Supreme Court Historical Society. Burger remained on the Court until his retirement in 1986, when he became Chairman of the Commission on the Bicentennial of the United States Constitution. He was succeeded as Chief Justice by William H. Rehnquist. 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 polio. He attended John A. Johnson High School, where he was president of the student council. He competed in hockey, football, track, and swimming. While in high school, he wrote articles on high school sports for local newspapers. 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. 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. Burger enrolled in extension classes at the University of Minnesota for two years while selling insurance for Mutual Life Insurance. Afterward, he enrolled at St. Paul College of Law, receiving his Bachelor of Laws, magna cum laude, in 1931. He took a job at a St. Paul law firm. In 1937, Burger served as the eighth president of the Saint Paul Jaycees. He also taught for twenty-two years at William Mitchell. 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. From 1948 to 1953, he served on the governor of Minnesota's interracial commission, which worked on issues related to racial desegregation. He also served as president of St. Paul's Council on Human Relations. Burger supported Minnesota Governor Harold Stassen's unsuccessful pursuit of the Republican nomination for president in 1948. 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. 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 Yale University 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. Shortly after, in Dalehite v. United States, 346 U.S. 15 (1953), Burger defended the United States against claims from the 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. 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. In June 1968, Chief Justice Earl Warren announced his retirement, effective on the confirmation of his successor. President Lyndon Johnson nominated sitting 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. Burger was nominated by President Nixon to succeed Earl Warren on May 23, 1969. The United States Senate Committee on the Judiciary hearing on Burger's nomination took place on June 3, 1969. It was characterized as having been friendly, and saw Burger as the sole individual to deliver testimony. The hearing was reported as having taken only an hour and forty minutes. Afterwards, the committee held a five-minute private session in which they voted unanimously to report favorably on his nomination. The Senate confirmed Burger to the court by a 74–3 vote on June 9, 1969, and he took the judicial oath of office on June 23, 1969. Remaking the Supreme Court had been a theme in Nixon's presidential campaign, and he had pledged to appoint a strict constructionist as Chief Justice. Burger had first caught Nixon's eye through a letter of support he sent to Nixon during the 1952 Fund crisis, 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. 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, strict-constructionist reading of the 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 president in 1972 if the political repercussions of the 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.

Reader's Guide

Warren E. Burger's significance lies in his tenure as Chief Justice during a transformative era for the U.S. Supreme Court. In 1974, Burger wrote for a unanimous court in United States v. Nixon, which rejected Nixon's invocation of executive privilege in the wake of the Watergate scandal. The ruling played a major role in Nixon's resignation. Burger joined the majority in Roe v. Wade in holding that the right to privacy prohibited states from banning abortions. Later analyses have suggested that Burger joined the majority in Roe solely to prevent Justice William O. Douglas from controlling assignment of the opinion. Burger's later votes aligned with this suspicion when he abandoned Roe in Harris v. McRae (voting with the majority), formally launching the restrictive Hyde Amendment into effect, and in Thornburgh v. American College of Obstetricians and Gynecologists (voting with the dissent). His majority opinion in INS v. Chadha struck down the one-house legislative veto. Although Burger was nominated by a conservative president, the Burger Court also delivered some of the most liberal decisions regarding abortion, capital punishment, religious establishment, sex discrimination, and school desegregation during his tenure. He did not emerge as a strong intellectual force on the Court, but sought to improve the administration of the federal judiciary. He also helped establish the National Center for State Courts and the Supreme Court Historical Society. The Court issued a unanimous ruling, Swann v. Charlotte-Mecklenburg Board of Education (1971), supporting busing to reduce de facto segregation.

Did You Know?

• Burger contracted polio at age 8 and stayed home from school for a year.
• He worked on the crew building the Robert Street Bridge in Saint Paul in 1925, a crossing that still exists.
• Burger taught for twenty-two years at William Mitchell College of Law.
• President Nixon asked Burger in spring 1970 to be prepared to run for president in 1972 if the Cambodia invasion caused too much political backlash.
• Burger was on Nixon's short list of vice presidential candidates after Spiro Agnew's resignation in October 1973.