Introduction
This research paper covers the life and times of the Supreme court Justice Warren Earl Burger. I specifically choose him because of his role in judicial administration and his conservative decisions regarding controversial cases. His conservative demeanor earned him friends and foes in equal measures. However, it is this demeanor that saw him nominated first as an assistant attorney general, then a court of appeal judge and later as a Supreme Court judge.
Burger goes down in history as one of the few judges who accomplished a lot in judicial administration in the US legal history. According to Encyclopedia of World Biography (2004), Burger added administrative support in the court, which included administrative assistants, public relation professionals, clerks, librarians, judicial fellows and infused technology use in the court as a way of handling the overload that was the case in the courts then.
Burger also lobbied congress successfully for a reduction of mandatory jurisdiction docket that was given to courts. His other successes in lobbying congress include placing sanction on attorneys who abused the court process, creating a “special Court of Appeals” to handle trademark, patent and copyright cases on the federal level and also succeeded in convincing Congress to narrow the mandate of the three-judge federal courts (Chilton, 2009).
Burger retired from the Supreme Court after 17 years of service. He went down in history as the longest-serving chief justice for his century. During his time there, the court became more of “a center for the resolution of social issues than it had ever been before” (Maveety, 1991).
Research Methods
This research paper is based on a literature review. In the research, I read through different books describing the life and works of Justice Warren E. Burger and his contribution to the justice system. I also read works of his critics from published works as well as electronic databases.
Life history of the Justice Warren Burger
According to O’Brien et al. (1999), Warren Earl Burger was born in Saint Paul, Minnesota, on September 17, 1907. He prepared for a career in law by joining the University of Minnesota, where he studied from 1925 to 1927. Three years later, in 1931, Burger joined Saint Paul College of Law, where he took some night lessons while still practicing law in a Minneapolis firm during the day. He also taught law at Mitchell College (O’Brien et al., 1999).
His rise to national limelight was as a result of his active participation in Republican politics (Olson, 1999). In 1934, for example, he was at the forefront organizing Young republicans in Minnesota, and in 1938; he was also among the key people who organized Harold Stassen’s campaign, while the latter was vying for a Governor’s position.
Between 1940 and 1950, he became a common figure in Minnesota politics, especially due to his outspoken stance about improving race relations in the state. In 1948, he supported Harold Stassen in his bid to win the republic nomination. Through these political circles, he got to know the likes of the 1953 presidential campaign adviser Herbert Brownell. As such, when it was clear that Stassen could not win, Burger jumped camp and led the Minnesota camp to support Dwight D. Eisenhower for the nominations (Olson, 1999).
When Dwight D. Eisenhower took over power of the presidency, Brownell was appointed the Attorney General and Burger, his assistant. He headed the Department of civil Justice. According to Olson (1999), his performance as a conservative person, especially when dealing with loyalty and civil liberty issues, earned him presidential recognition, and in 1956, he was appointed to the Court of Appeals (District of Columbia) by President Eisenhower. Still, his reputation as a conservative, especially when dealing with criminal cases, grew. Even President Richard Nixon, who succeeded Eisenhower, agreed with Burger that “the constitution should be interpreted narrowly” (Olson, 1999).
In 1969, annoyed by the precedence of handling cases in the Supreme Court regarding to the Fifth Amendment, Burger wrote, “This seeming anxiety of Judges to protect every accused person from every consequence of his/her voluntary utterance if causing myriad rules, variations, exceptions, and sub-rules, which even the most refined judge or lawyer is taxed to follow…” (O’Brien et al., 1999).
In 1969, Chief Justice Earl Warren retired from the Supreme Court. President Nixon then nominated Warren Earl Burger as the viable candidate to replace him. Burger easily settled in because there was not much political opposition from his nomination. His support was so overwhelming that the senate voted him in with 74 to 3 votes (Davis and Graham, 1995). At the time of this vote, Warren’s work was not known much outside the legal fraternity.
However, the president was quite confident that he was viable for the job considering his stance in criminal jurisprudence as well as his proven record of construing the constitution narrowly. He served in the courts for thirteen years, during which his reputation as a conservative judge become further entrenched in the minds of many Americans. Often, his opinions on criminal justice clashed openly with opinions that had been passed by the more liberal judges serving in the Supreme Court.
In the Supreme Court, however, his conservative star shrank to moderation. In fact, the tough rulings that people expected from the Burger court were not forthcoming as fast as people would have liked. According to O’Brien et al. (1999), “the Burger court was perceived to give ‘middle-of-the-road justice’ on issues that apparently needed more decisiveness.”
Majority opinions authored Burger’s time in Court
Swann v. Charlotte-Mecklenburg board of education
The first action by the Burger court that was perceived as lukewarm was the decision to uphold busing as a mode of achieving integration in schools (O’Brien et al., 1999). In Swann v. Charlotte-Mecklenburg’s board of education, Justice Burger wrote that busing students could provide a tool through which desegregation in schools could be attained (Lomotey, 2009).
His argument was that segregation in schools was a result of a long history of school districts, which had deliberately separate students according to racial affiliations. This was among the most controversial cases that Burger handled.
After the busing decisions, proposals seeking approval to curb busing directed to congress increased. Even President Nixon condemned the busing decision by the court, terming it “forced.” The white majority, in obvious disagreement with this order, left the cities by the numbers and settled in the suburbs. More withdrew their children from public schools and enrolled then in private schools. Since the Burger decision on busing was enacted in all districts, a case was a 1974 court case that challenged the legality of busing through all districts, while segregation only existed in Detroit (Kritzer & Richards, 2003).
Milken v. Bradley 1(1974)
In Milken v. Bradley 1(1974), Burger reversed a multi-district remedy that had been issued by a lower court. In his argument, he said that “there is no evidence showing that discrimination in Detroit schools was due to actions in other districts. As such, a federal court erred in issuing an inter-district remedy for school segregation.” (Davis and Graham, 1995).This decision by the Burger court was not taken lightly by Justice Marshall, who is a strongly worded dissents said that Justice Burger was acting to please the majority view, and thus offered no remedy to the immediate problem, which in that case was continued segregation in schools.
According to Davis and Graham (1995), this was the first signal by the Burger’s court that it was reluctant to move as fast as people would have wanted to in order to handle school desegregation. According to Hodgson (1995), Justice Burger argued that busing students who lived in the suburbs to cities just to achieve the anti-segregation objective were tantamount to punishing students from the suburbs.
The anti-busing sentiments increased in the mid-1970s, and in reaction to this, President Jimmy Carter banned a law, which would have disallowed the justice department from commencing desegregation suits against schools where busing was still mandated. In the 1977 Milliken II case, Justice Burger ruled that compensatory education as offered by some lower courts be upheld. This included offering counseling, testing, in-service training of teachers, and reading to schools and students who had suffered segregation before. While making this ruling, Burger said that the remedies did not surpass the violation of segregation and were therefore constitutionally permissible because they do not “offend the constitution” (Davis and Graham, 1995).
Justice Powell did not quite agree with Justice Burger, and in a 37-page opinion, he stated that “the history of state-imposed segregation is widespread in the country that the de jure/de facto distinction has traditionally cared to recognize.” (Davis & Graham, 1995). Powell said that the Burger court did not grapple the difference between the de jure and de facto segregation and thus lacked the ability to formulate coherent judicial principles that could address desegregation in schools with jurisprudence.
The United States v. Nixon
The burger was among the Justices who ruled in the 1974 United States v. Nixon case, ordering President Nixon to adhere to subpoenas issued by the special prosecutor, forcing Nixon to oblige to the special prosecutor’s request for tape recordings, which Nixon had wanted to keep confidential. The tapes contained discussions that had been recorded in the white house. In this ruling, Burger and the three other judges that had been appointed by Nixon affirmed that indeed the prosecutor has subpoena powers over the president (Chilton, 2009). Their actions showed that the courts were indeed a separate entity from the executive. The taped recordings eventually acted as proof that forced President Richard Nixon to resign (Olson, 1999).
Lemon v. Kurtzman
In, Lemon v. Kurtzman (1971), Alton lemon a resident and a taxpayer in Pennsylvania sued David Kurtzman who was the superintendent of the school in the region for the issuance of textbooks purchased with the taxpayer’s money to parochial schools arguing that such an action contravened the first amendment of the American constitution. During the case, Burger said that the famous metaphor “Wall of separation between church and state,” as used by Thomas Jefferson, was necessary in arguing the case. He, however, said that the establishment clause was in itself clear as many people would like terming it “blurred, indistinct and a variable barrier depending on the circumstances of the case being argued at any one given time” (Kritzer & Richards, 2003).
During the ruling, Burger stated that though the parochial schools were an integral part of the school system, they fostered “excessive entanglement between religion and government,” thus contravening the Establishment Clause. The Burger court drew three distinctions that could guide future decisions about the church and state separation. They were: a non religious or secular intent or purpose; non- interference or promotion religion; must be deemed not to cause excessive entanglement of religion and government.
The significance of this ruling by the Burger court is that the court upheld the separation of state and church and further attempted to issue a clarifying message through the “lemon test” (Kritzer & Richards, 2003). Though this test attracted criticism from conservative Justices, it continues to be used in some US courts to date.
Wisconsin v. Yoder (1972)
In this case, the burger court ruled seven votes to nil in support of Amish parent’s right to free exercise of religion as opposed to compelling the parents who had refused their children high school education claiming religious reasons. In the ruling, the Burger court stated that “secondary education was in sharp conflict with the fundamental mode of life as mandated by the Amish religion.” (Wisconsin, 2002). He further stated that just because the Amish way of life did not seem to fit in with the contemporary American lifestyle, it should not be condemned, as long as it did not interfere with the rights and interests of other people.
This ruling attracted dissent from Justice William Douglas, who argued that although the Amish religion was opposed to higher education, the Burger court had assumed that it’s only the interests of the parents and the state at consideration. As such, the court had denied, the high-school going children a chance to decide whether they want to stick by the Amish way of life, or pursue education like other children. “It is the children’s judgment, not his parents that is essential in giving full meaning to the bill of rights…” read Justice Douglas’ dissent in part (Wisconsin, 2002).
The Judicial philosophy of the Justice Burger
According to Maveety (1991), “the Burger court was reluctant to apply nineteenth-century conception of atomistic liberalism to twentieth-century problems of group-biased gerrymanders.” Compared to Earl Warren’s court earlier, which had passed the one-man-one-vote rule, many people perceived the Burger court’s decisiveness as dismal. However, it is argued (Maveety, 1991; Olson, 1999) that Justice Burger perceived balancing group interests as the most ideal way of enhancing equal representation. As such, Maveety (1991) argues that the decisions in the Burger courts shifted the balance to the federal judiciary, thus removing some weight from state legislative institutions.
Although Burger served in the Supreme Court for much longer than his predecessor Justice Warren, the two courts are incomparable in the way they handled cases. According to Hodgson (1995), the Burger court was “activist, rejecting more often than not the Holmes doctrine of judicial restraint.” The Burger court invalidated 312 federal laws and an approximate 288 state laws, while the Warren court before it has only struck down 21 and 150 federal and state laws respectively (Hodgson, 1995).
The trend of making policy judgments that Burger had adopted led to the apt description of his court as a “more legislative than judicial court.” In the Chadha case, Burger once more moved to assert the judicial superiority of the courts, when he held that the widespread “legislative veto” practice was unconstitutional. In his argument, Burger said that the legislative veto had breached the constitution contravening the separation of powers between Congress and the presidency. His argument was based on the fact that Congress has used its authority to control executive bureaucracy in more than 200 statues (Bumgarner, 2004).
In the United States v, Nixon case, Justice Burger appeared unmoved by the fact that Nixon had appointed him to the Supreme Court, thus surprising many people who would have thought that his connection to the president would either make him a political sympathizer of the president or personally obliged to spare the president. Instead, Burger ordered Nixon to hand over the tapes. This eventually led to the “forceful removal” of Nixon from office (Lomotey, 2009).
For a man considered a conservative, Burger surprised pro-life and pro-choice supporters in Roe v. Wade and Bolton v. Doe when he ruled that it within the fundamental rights of women to decide whether to have an abortion or not (Hodgson, 1995). The fact that he carried on with the Warren court decisions, which many perceived as “activist” in nature, meant that no one could really make a prediction of what the Burger Court could come up with.
The impact of the Justice Burger on Criminal Procedure
In Nixon’s presidential campaign, he had stated that the Supreme Court was “hamstringing peace forces in the country while allowing criminal forces to grow stronger.” (Bumgarner, 2004). He thus promised that the Supreme Court could no longer hamper enforcement of law upon his election. This explains why he appointed Justice Burger to succeed Justice Warren as Chief Justice. Ironically, in the most famous criminal case handled by the Burger Court, President Nixon, who was perceived by many as Justice Burger’s patron was the looser (Bumgarner, 2004).
Burger ordered the president to surrender tapes that contained unequivocal evidence that Nixon had obstructed justice (Encyclopedia of World Biography, 2004). Burger’s initial years in the courts were spent dissenting expanded defendant rights that had become the norm in the Warren courts. He understated the importance of Miranda rights when he ruled in 1971’s Harris v. New York case that “Statements obtained without reading an arrested person his/her Miranda Rights could be used to impeach the defendant’s testimony.” (Encyclopedia of World Biography, 2004). Throughout his rulings, it was obvious that Justice Burger was against the rule that made “illegally” obtained evidence non-admissible in courts.
Justice Burger is also credited with giving the death penalty a new lease of life when his court rejected all death penalty appeals brought before it. He had earlier criticized attorneys saying that “they had resulted in endless legal maneuvers just to keep their clients alive.” (Encyclopedia of World Biography, 2004)
According to King (1996), Warren Burger spearheaded processes that saw comprehensive recommendations authored for use in the criminal procedure. And although some of the standards were seen as reproductions of federal law, some have had a significant effect on the criminal procedures in the United States. Federal rule 16 is one such regulation, which was initially drafted to encourage “trial by surprise” by encouraging defense discovery of specific documents. It was, however, criticized, thus leading to its amendments, which led to the same rule having broader access to reports, statements, and reports by the defense.
The burger was also among the Justices who drafted the Federal Rule 6, which gives federal defendants constitutional rights to have a motion served to them 14 days before the hearing date for their cases. The rule also states that an affidavit supporting a motion must be served seven days prior to the hearing date. More so, this rule provides exceptions when this rule may be overlooked (King, 1996).
Dissents
According to Baird and Jacobi (2009), dissents are alternative theories offered by judges to litigants as signals about framing future cases. They can be simple expressions of alternative thoughts of frustrations, which are read aloud by the dissenting judge in an attempt to bring about a change of heart. Warren E. Burger had his fair share of dissents in the 15 year period he served as the country’s chief justice.
Among the popular dissenting opinions by Burger includes the Solem v. Helm case where Mr. Helm had been found guilty of the seventh count of non-violent felony. In this case, the judges presiding over the case issued the defendant with mandatory life incarceration with no parole. The court later overturned this decision arguing that the life imprisonment penalty was “too cruel and unusual punishment” for a felon who had written a fictitious check worth $100. To this latter argument, Warren E. Burger dissented (Mackinnnon, 1987).
In the New York Times Co. v. The United States, the United States, had filed a case against the New York Times and the Washington Post, arguing that the two publications published classified information on the making of Vietnam Policy. The Supreme Court dismissed the case arguing that the government had not shown enough proof to back its claim that the two publications should have restrained from publishing the information (Mackinnnon, 1987).
Concurring Justices argued that injunctions issued against the publication of the materials violated the first amendment. They argued that the information that the two publications intended to publish was “of vital importance to the people of the United States.” The first amendment states that “the people shall not be deprived their rights to speak, write or publish sentiments, and press freedom shall not be violated since it represents a great bulwark of liberty.” (Mackinnnon, 1987).
In his dissent, Warren E. Burger argued that adherence to basic constitutional principles does not make the New York Times v. the United States simple. He said that the presiding judges in the case saw the first amendment as an absolute that permitted “no restraint in any circumstance or for any reason.” In his view, however, the first amendment is not absolute. More to this, Burger said that the courts should have considered the retention of material and publication of information that regarded national defense. During this case, Burger was quoted saying that “free speech carries with it some freedom to listen.” (Mackinnnon, 1987).
Conclusion
Justice Warren E. Burger was a conservative hardliner and authoritarian who believed in upholding law and order. From his rulings, this research paper is of the conclusion that the Justice was surprising just as he was unpredictable in his decisions. Though he was a strong critic of the Warren Court, he did nothing much to overturn the Warren court decisions once he took over the court. In fact, he carried on with some of the precedents set by the Warren court (Example, busing case). He was, however, less sympathetic towards civil liberties, which were as a result of his belief that the society or community had the right to force values they deemed right on people who did not conform to the same.
To critics and supporters alike, it is undeniable that Warren E. Burger left a legacy in courts whose effects remain to date. According to Schwartz (1998), Burger succeeded in enforcing the appropriateness of individual liberty as opposed to collective liberties more than any other justice in the United States’ Supreme Court has ever done.
During his tenure in the Supreme Court, Burger is known to have given inconsistent rulings in different cases. In Lemon v. Kurtzman, for example, he developed the 3-prong Lemon test. His rulings in Lynch v. Donnelly and March v, Chambers only partially the Lemon test. Regardless of this, however, Justice Burger was a reformer, who launched the crusade to improve the justice system by reshaping the administrative branches of the court. Through his persuasion, courts employed administrators and other professionals who helped improve its performance. Overall, Warren E. Burger is considered among the few conservative justices who had a practical attitude towards contentious court cases.
References
Baird, V. & Jacobi, T. (2009). How the Dissent becomes the Majority: Using Federalism to Transform Coalitions in the US Supreme Court. Duke Law Journal. Vol. 59 (2).
Bumgarner, J. (2004). Profiling and criminal justice in America: a reference handbook. Santa Barbara, CA: ABC-CLIO.
Chilton, S. B. (2009). Burger, Warren E. Web.
Davis, A. & Graham, B. (1995). The Supreme Court, race, and civil rights. London: Sage.
Encyclopedia of World Biography. (2004). Warren E. Burger. Web.
Hodgson, G. (1995). Obituary: Warren Burger. The Independent People. Web.
King, N. (1996) Criminal procedure, federal rules of criminal procedure, federal practice and procedure. Web.
Kritzer, H. M. & Richards, M. J. (2003). Jurisprudential regimes and Supreme Court decision-making: The lemon regime and establishment clause cases. American political science review. No. 96.
Lomotey, K. (2009). Encyclopedia of African American Education. New York: 2009.
Mackinnon, G. (1987). A tribute to the Chief Justice Warren E, Burger. Harvard Law Review. Vol. 100 (1).
Maveety, N. (1991). Representation rights and the Burger years. Ed. Michigan: University of Michigan Press.
O’Brien, S., McGuire, P., & McPherson, J. (1991). American political leaders: from colonial times to the present. Bonn: Verlag für die Deutsche Wirtschaft AG.
Olson, J.S. (1999). Historical dictionary of the 1960s. Ed. New York: Greenwood publishing.
Schwartz, B. (1998). The Burger Court: counter-revolution or confirmation? New York: Oxford University Press, US.
Wisconsin. Y. (2002). Supreme Court of the United States: 406 US 205; 1972, decided. Web.