Warren Earl Burger – Chief Justice of the United States Supreme Court

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From a number of contemporary press reports:

Retired Supreme Court Chief Justice, who wrote opinions that legally defined obscenity, established busing as a tool to end segregation and forced President Nixon to release the Watergate tapes, died Sunday, June 25, 1995. He was 87. He died at Sibley Memorial Hosp of congestive heart failure, said Toni House, spokeswoman for the court. The nation’s 15th chief justice, he served from 1969 to 1986, the longest tenure this century.

“Justice Burger was a strong, powerful, visionary chief justice who opened the doors of opportunity,” President Clinton said in a statement issued in Little Rock, Arkansas. “As chief justice, he was concerned with the administration of the court, serving with enthusiasm and always making sure it was above reproach.” “His expansive view of the Constitution and his tireless service will leave a lasting imprint on the court and our nation.”

A champion of judicial reform, Burger retired in 1986 and devoted full attention to his duties as the unpaid chairman of the Commission on the Bicentennial of the US Constitution. In that post, he led the national celebrations of the Constitution’s 200th anniversary in 1987 and the Bill of Rights’ 200th anniversary in 1989. “Warren presided with great distinction over some of the most significant decisions in the court’s history,” said William Rogers, secretary of state under Nixon and Attorney General in the Eisenhower administration. “With the passage of time, his great contribution to the history of our nation will be more and more understood and appreciated.”

Burger had performed no judicial duties since 1986. In recent years, he suffered from recurring pulmonary problems. He was hospitalized several times with pneumonia. On the bench, he was a politically conservative judge who rarely showed sympathy for criminal defendants or their asserted rights. But he also wrote numerous opinions praised by liberals. Burger spoke for the court in decisions that inaugurated busing as a tool for the racial desegregation of public schools, expanded public access to the nation’s courts and enhanced women’s protections against sexual discrimination. He wrote the opinion that in 1974 forced Nixon — the man who had nominated him to the court — to surrender White House tape recordings and papers for use as evidence in the trial of presidential aides accused of covering up the Watergate scandal. The ruling was a major factor in Nixon’s decision to resign. Burger also wrote the landmark 1973 decision that supplied the still-used legal definition of obscenity. Burger said material is obscene, and therefore not protected by the Constitution’s free-speech guarantee, if it appeals to a morbid interest in sex with patently offensive depictions of sexual conduct, and on the whole has no serious literary, artistic, political or scientific value. In 1971, Burger wrote for the court as it established a landmark in the area of religious freedom. The decision said a law or govt practice is invalid if it has a religious purpose, if its primary effect advances or promotes religion or if it fosters excessive governmental entanglement with religion. He later voiced dissatisfaction with that 3-part test, however.

At the Supreme Court, he was known as a man with an eye for detail. He chose the carpeting for the court’s public cafeteria and much of the building’s furniture. During the energy crisis of the mid-1970s, Burger took to touring the court building to turn off lights not being used. “I’m a hands-on kind of administrator,” he told a reporter. His administrative innovations included the Institute for Court Management, the National Center for State Courts. He played a key role in bringing about technological advances and better training for judges and lawyers. About his many projects for improving the administration of justice, Burger once said, “I didn’t initiate them because I loved them; it wasn’t that kind of work. I initiated them because they were 30 or 40 years overdue.” A longtime campaigner for prison reforms, Burger said the country should move away from “prison warehouses” and instead build “factories with fences” in which inmates learn a marketable skill so they can earn a living after their release. He was a collector of antiques and wine, a sculptor and painter of considerable skill, but his customary 80-hour work weeks left little time for those hobbies until the bicentennial commission ceased to exist in 1992. Burger was also an outspoken opponent of televising federal court proceedings, especially the Supreme Court’s public argument sessions in which lawyers present their cases to the justices. Although most state court systems allow some television, radio or still-photography coverage, federal courts do not. Burger had owned sporting guns all his life, but in 1990 he supported stricter regulation of gun owners and would-be gun buyers to put a stop to “mindless homicidal carnage.” Sixteen years earlier, Burger’s ownership of a pistol had made news when the armed chief justice confronted a newspaper reporter who had gone to Burger’s home late one night seeking comment.

Burger was engulfed in controversy in 1981 over reports that the proofs of a book by John Ehrlichman, a former top aide to Nixon, said Burger in 1970 went to the White House and discussed a pending Supreme Court case with Nixon and then-Attorney General John Mitchell. Such a discussion would have violated the Code of Judicial Conduct. Burger refused to comment on Ehrlichman’s assertions.

Aside from the chronic back pain he suffered since contracting polio as a youth, Burger generally enjoyed good health throughout his judicial career. He began having serious health problems in 1988, when he was hospitalized for 3 days, suffering from exhaustion and pneumonia.

Burger was born in St. Paul, Minnesota, on September 17, 1907, to a family of Swiss and German descendants. His father worked as a railway cargo inspector and sometime traveling salesman. Burger worked days as an insurance salesman while earning his undergraduate degree at night from the University of Minnesota, and later earned a law degree at night at St. Paul College of Law. He joined a Minneapolis law firm in 1931, and 8 years later made his first foray into politics by managing the Minnesota gubernatorial campaign of a young Harold Stassen. President Eisenhower named Burger to the US Circuit Court of Appeals for the District of Columbia in 1956. Thirteen years later, Nixon selected him to top the federal judiciary, drawn by Burger’s criticism of Supreme Court decisions under Chief Justice Earl Warren. Many of those rulings enhanced the rights of criminal suspects.

Burger’s wife of 61 years, Elvera, died last year. They had a son, Wade, and a daughter, Margaret, and 2 grandchildren. Funeral arrangements were incomplete.

June 26, 1995: The late Chief Justice Warren E. Burger will be the third Supreme Court member in history to have his coffin displayed at the court’s majestic building before burial. Court spokeswoman Toni House said the ret chief justice, who died at age 87 Sunday, will be buried at Arlington National Cemetery after a National Presbyterian Church funeral service Thursday. She said Burger’s coffin will be on public view in the court building’s Great Hall for 12 hours Wednesday. Only Chief Justice Earl Warren and Justice Thurgood Marshall have been so honored previously. Such decisions are made by the families and the sitting chief justice, House said. As was the case for those legal giants, Burger’s coffin will rest on the black-draped bier that once held the caskets of Presidents Abraham Lincoln and John F. Kennedy.

Burger, who had retired in 1986, was praised Monday by his former high court colleagues as an energetic jurist and endearing friend. Retired Justice Harry A. Blackmun, who served as best man at Burger’s wedding in 1933, said, “I personally knew him for 80 years, a friendship that indeed was lifelong. His leaving instills a sensation of loneliness, not only for me, but for the court.” Retired Justice Byron R. White called Burger “a great man.” “I was amazed at what seemed to be his inexhaustible energy,” White said. “His mark on the court and federal judicial system is very deep and very clear.” Retired Justice William J. Brennan, the Burger court’s leading liberal, praised Burger’s “commitment to public service, for which the nation will be forever grateful.” “For his many years of friendship, I will be forever grateful,” Brennan said. Justice John Paul Stevens likened Burger to John Marshall, the first great chief justice. “Like Marshall, he was an innovative, conservative chief justice with a profound sense of history and respect for the Constitution, fully conscious of the fundamental importance of an independent judiciary,” Stevens said. Burger’s successor, William H. Rehnquist, noted his death “with sadness” at the start of the court’s public session Monday. “He will long be remembered as a major contributor to the decisional law of this court,” Rehnquist said. “He was also an innovative reformer of the administration of justice.” “The members of this court will greatly miss Chief Justice Burger’s energy and warmth…. The recess the court takes today will be in his memory,” Rehnquist said. Justice Antonin Scalia, who joined the court as Burger’s numerical replacement, said, “Those who knew him well know that we have lost a lionhearted defender of what is best in America.”

June 30, 1995: The longest-serving chief justice of the US, Warren Earl Burger, was buried Thursday (29 Jun 1995) at Arlington National Cemetery. He headed the court from 1969 to 1986, when he was succeeded by Chief Justice William R. Rehnquist. Appointed by President Nixon, the St Paul, Minnesota, native presided over the Supreme Court that endorsed affirmative action, sanctioned busing to integrate schools and legalized abortion. His court also allowed blacks for the first time to sue for indirect job discrimination, based on statistics that revealed that blacks got the short end of the stick when it came to receiving good jobs. He later wrote the opinion on the ruling that allowed government aid to parochial schools, so long as the aid was used to achieve a secular purpose, and for the advancement of religion or the ntanglement of govt and religion.

On July 25, 1974, Burger sided with the other Supreme Court justices in denying Nixon control over the White House tapes made during the Watergate crisis. That ruling ultimately led to Nixon’s resignation from the presidency. Also credited with improving the administration of the federal judicial system – pushing Congress for the creation of more judgeships and raised in judge’s pay, promoting continuing judicial education and streamlining court procedures. He also brought the Supreme Court into the computer age. It is also said that he provided guidance to state supreme courts on how to clean their administrative households.

He began his career in law in 1931, after earning his degree in night courses while selling insurance during the day. In 1953, he became an assistant US Attorney General for the Justice Dept’s Civil Rights Division under President Dwight Eisenhower. Eisenhower moved him to the Court of Appeals for the District of Columbia Circuit in 1956. On June 9, 1969, the Senate approved Nixon’s nomination of Burger to the high court in a Judiciary Committee meeting that lasted an hour and 40 minutes.

President Ronald Reagan called on the former chief justice to head a commission that would lead the country in a 5-year celebration of the bicentennial of the US Constitution, a task primarily of education and citizen involvement that Burger completed in 1991, the year the adoption of the Bill of Rights was the focus of the observation. Death came for Burger on June 25, 1995. He was buried in Section 5, Plot 7015-2, next to his wife, Elvera, who died in may 1994. The section where Burger is buried contains the remains of many former US justices. His internment was a private family event, closed to the media, but the American flag will be flown at half-mast from his death through Independence Day in accordance with public law.

Elvera S. Burger

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