Presidents and the Supreme Court: Warren Burger
The man who quarterbacked the Supreme Court's opinion in United States v. Nixon was Chief Justice Warren Burger. He was a Republican who had been a supporter of Nixon's old boss Dwight Eisenhower. Burger was not considered as possessing either a powerful intellect or excellent managerial skills while on the court. He also was not pleased with the state of the justice system at the time he was Chief. In a speech he made to the American Bar Association in 1984, he told his audience: "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected."
His full name was Warren Earl Burger and he was born in Saint Paul, Minnesota in 1907, one of seven children. His parents were of Austrian German descent. His grandfather, Joseph Burger, had emigrated from Tyrol, Austria and had fought in the Civil War for the Union Army. Burger grew up on the family farm near the edge of Saint Paul. He attended night school at the University of Minnesota while selling insurance. He obtained his law degree from St. Paul College of Law in 1931 and practiced law at the firm of Boyensen, Otis and Faricy.
Burger was a lifelong Republican. He was a supporter of Minnesota Governor Harold E. Stassen when Stassen sought the Republican nomination for President in 1948. In 1952, at the Republican convention, he supported Dwight D. Eisenhower's nomination and Eisenhower later appointed Burger as the Assistant Attorney General in charge of the Civil Division of the Justice Department. In this role, Burger argued cases in front of the Supreme Court. In 1956, Eisenhower appointed him to the U.S. Court of Appeals for the District of Columbia Circuit. He remained on the Court of Appeals for thirteen years.
In 1968, Chief Justice Earl Warren announced his retirement after 15 years on the Court, 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. Warren remained in office and in 1969, President Richard Nixon nominated Burger to the the position of Chief Justice. Nixon took notice of a comment Burger made in U.S. News and World Report in 1967 that was critical of the Fifth Amendment, under which an accused person may not be required to testify. Burger had gained a reputation as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the Constitution. Nixon liked this. The Senate confirmed Burger to succeed Warren, at a time when the public was in a law-and-order mood. Earl Warren swore in his successor on June 23, 1969.
In his memoirs, Nixon claimed that in the spring of 1970 he had asked Burger to be prepared to run for President in 1972 if the political repercussions of the Cambodia invasion cost him his chances for re-election. Nixon had Burger was on a short list of vice-presidential replacements for Vice President Spiro Agnew before Gerald Ford was appointed following Agnew's resignation in October 1973.
When Burger was nominated for the Chief Justice, conservatives in the Nixon Administration expected that the Burger Court would move to the right of the Warren Court and would overturn controversial Warren Court precedents. But it soon became apparent that the Burger Court was not going to do so. The Court issued a unanimous ruling, Swann v. Charlotte-Mecklenburg Board of Education (1971) supporting busing to reduce racial segregation in schools. In United States v. U.S. District Court (1972) the Burger Court issued another unanimous ruling upholding the need for a search warrant in cases of domestic surveillance. In Furman v. Georgia (1972) the court, in a 5–4 decision, invalidated all death penalty laws then in force, although Burger dissented from the decision. In the most controversial ruling of his term, Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning abortions.
On July 24, 1974, Burger led the court in a unanimous decision in United States v. Nixon. This was President Nixon's attempt to keep several memos and tapes relating to the Watergate Affair private. According to journalist and author Bob Woodward, Burger "didn't see what they did wrong." Burger originally planned to rule in favor of Nixon, but changed his vote in order to assign the opinion to himself, and to restrain the court's rhetoric.
Burger wrote a concurring opinion in the Court's 1986 decision upholding a Georgia law criminalizing sodomy (Bowers v. Hardwick), in which Burger relied on historical evidence that laws criminalizing homosexuality were of historically prescribed. He quoted the famous legal author William Blackstone, who wrote that sodomy was a "'crime against nature'... of 'deeper malignity than rape', a heinous act 'the very mention of which is a disgrace to human nature' and 'a crime not fit to be named'".
On issues involving criminal law, Burger remained reliably conservative. He joined the Court majority in voting to reinstate the death penalty in Gregg v. Georgia (1976), and, in 1983, he dissented from the Court's decision in the case of Solem v. Helm that a sentence of life imprisonment for issuing a fraudulent check in the amount of $100 constituted cruel and unusual punishment.
Burger helped found the National Center for State Courts, which is now located in Williamsburg, Virginia, as well as the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards. He also began a tradition of annually delivering a State of the Judiciary speech to the American Bar Association.
Burger was considered to be as a weak chief justice (according to Woodward in his book "The Brethren") who was not respected by his colleagues due to a perceived lack of legal intellect. Woodward claims that the other justices were annoyed by Burger's practice of switching his vote in conference, or simply not announcing his vote, in order that he be able to control opinion assignments. Time magazine called him plodding, standoffish, pompous, aloof, and unpopular. Potter Stewart, who had been considered a candidate to follow Warren as Chief Justice, disliked Burger so much that he became the primary source for Woodward in The Brethren.
Burger retired on September 26, 1986. He took on a role with the campaign to mark the 1987 bicentennial of the United States Constitution. He commissioned the construction of the Constitution Bicentennial Monument (The National Monument to the U.S. Constitution). In 1991 appearance on the MacNeil/Lehrer NewsHour, Burger told the hosts that the Second Amendment "has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups."
Burger died in his sleep on June 25, 1995, from congestive heart failure at the age of 87, at Sibley Memorial hospital in Washington, D.C. He had drafted his own one-page will. All of his papers were donated to the College of William and Mary, where he formerly served as Chancellor. They remain sealed until 2026.
His full name was Warren Earl Burger and he was born in Saint Paul, Minnesota in 1907, one of seven children. His parents were of Austrian German descent. His grandfather, Joseph Burger, had emigrated from Tyrol, Austria and had fought in the Civil War for the Union Army. Burger grew up on the family farm near the edge of Saint Paul. He attended night school at the University of Minnesota while selling insurance. He obtained his law degree from St. Paul College of Law in 1931 and practiced law at the firm of Boyensen, Otis and Faricy.
Burger was a lifelong Republican. He was a supporter of Minnesota Governor Harold E. Stassen when Stassen sought the Republican nomination for President in 1948. In 1952, at the Republican convention, he supported Dwight D. Eisenhower's nomination and Eisenhower later appointed Burger as the Assistant Attorney General in charge of the Civil Division of the Justice Department. In this role, Burger argued cases in front of the Supreme Court. In 1956, Eisenhower appointed him to the U.S. Court of Appeals for the District of Columbia Circuit. He remained on the Court of Appeals for thirteen years.
In 1968, Chief Justice Earl Warren announced his retirement after 15 years on the Court, 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. Warren remained in office and in 1969, President Richard Nixon nominated Burger to the the position of Chief Justice. Nixon took notice of a comment Burger made in U.S. News and World Report in 1967 that was critical of the Fifth Amendment, under which an accused person may not be required to testify. Burger had gained a reputation as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the Constitution. Nixon liked this. The Senate confirmed Burger to succeed Warren, at a time when the public was in a law-and-order mood. Earl Warren swore in his successor on June 23, 1969.
In his memoirs, Nixon claimed that in the spring of 1970 he had asked Burger to be prepared to run for President in 1972 if the political repercussions of the Cambodia invasion cost him his chances for re-election. Nixon had Burger was on a short list of vice-presidential replacements for Vice President Spiro Agnew before Gerald Ford was appointed following Agnew's resignation in October 1973.
When Burger was nominated for the Chief Justice, conservatives in the Nixon Administration expected that the Burger Court would move to the right of the Warren Court and would overturn controversial Warren Court precedents. But it soon became apparent that the Burger Court was not going to do so. The Court issued a unanimous ruling, Swann v. Charlotte-Mecklenburg Board of Education (1971) supporting busing to reduce racial segregation in schools. In United States v. U.S. District Court (1972) the Burger Court issued another unanimous ruling upholding the need for a search warrant in cases of domestic surveillance. In Furman v. Georgia (1972) the court, in a 5–4 decision, invalidated all death penalty laws then in force, although Burger dissented from the decision. In the most controversial ruling of his term, Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning abortions.
On July 24, 1974, Burger led the court in a unanimous decision in United States v. Nixon. This was President Nixon's attempt to keep several memos and tapes relating to the Watergate Affair private. According to journalist and author Bob Woodward, Burger "didn't see what they did wrong." Burger originally planned to rule in favor of Nixon, but changed his vote in order to assign the opinion to himself, and to restrain the court's rhetoric.
Burger wrote a concurring opinion in the Court's 1986 decision upholding a Georgia law criminalizing sodomy (Bowers v. Hardwick), in which Burger relied on historical evidence that laws criminalizing homosexuality were of historically prescribed. He quoted the famous legal author William Blackstone, who wrote that sodomy was a "'crime against nature'... of 'deeper malignity than rape', a heinous act 'the very mention of which is a disgrace to human nature' and 'a crime not fit to be named'".
On issues involving criminal law, Burger remained reliably conservative. He joined the Court majority in voting to reinstate the death penalty in Gregg v. Georgia (1976), and, in 1983, he dissented from the Court's decision in the case of Solem v. Helm that a sentence of life imprisonment for issuing a fraudulent check in the amount of $100 constituted cruel and unusual punishment.
Burger helped found the National Center for State Courts, which is now located in Williamsburg, Virginia, as well as the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards. He also began a tradition of annually delivering a State of the Judiciary speech to the American Bar Association.
Burger was considered to be as a weak chief justice (according to Woodward in his book "The Brethren") who was not respected by his colleagues due to a perceived lack of legal intellect. Woodward claims that the other justices were annoyed by Burger's practice of switching his vote in conference, or simply not announcing his vote, in order that he be able to control opinion assignments. Time magazine called him plodding, standoffish, pompous, aloof, and unpopular. Potter Stewart, who had been considered a candidate to follow Warren as Chief Justice, disliked Burger so much that he became the primary source for Woodward in The Brethren.
Burger retired on September 26, 1986. He took on a role with the campaign to mark the 1987 bicentennial of the United States Constitution. He commissioned the construction of the Constitution Bicentennial Monument (The National Monument to the U.S. Constitution). In 1991 appearance on the MacNeil/Lehrer NewsHour, Burger told the hosts that the Second Amendment "has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups."
Burger died in his sleep on June 25, 1995, from congestive heart failure at the age of 87, at Sibley Memorial hospital in Washington, D.C. He had drafted his own one-page will. All of his papers were donated to the College of William and Mary, where he formerly served as Chancellor. They remain sealed until 2026.