Burger, Warren E. (1907–1995)

• Author: Lee C. Bollinger
• Pages: 269-272

Page 269

Warren Earl Burger was born in St. Paul, Minnesota. He attended the University of Minnesota and, in 1931, received

Page 270

a law degree from St. Paul College of Law (today known as the William Mitchell College of Law). After practicing law in St. Paul for several years, he became the assistant attorney general in charge of the Civil Division of the Department of Justice during the administration of DWIGHT D. EISENHOWER. In 1955, Burger was appointed a judge on the United States Court of Appeals for the District of Columbia Circuit. He served in that capacity until 1969, when he became the Chief Justice of the United States, having been nominated for that position by RICHARD M. NIXON.

In the years of his tenure as Chief Justice, the Supreme Court has been marked publicly as having a majority of Justices who hold a generally conservative orientation toward constitutional issues. Burger himself is widely viewed as a primary proponent of this conservative judicial posture and, at least during the early years of the BURGER COURT, he was expected to lead the other conservative Justices in a major, if one-sided, battle to undo as much as could be undone of the pathbreaking work of its predecessor, the quite distinctly liberal WARREN COURT.

To the surprise of many the record of the Burger Court has been extraordinarily complicated, or uneven, when viewed against both of its commonly assumed objectives of overturning Warren Court decisions and of achieving what is often called a "nonactivist" judicial posture toward new claims for constitutional rights. Although it is true that a few Warren Court innovations have been openly discarded (for example, the recognition of a FIRST AMENDMENT right to speak in the context of privately owned SHOPPING CENTERS was overturned) and several other doctrines significantly curtailed (for example, the well-known 1966 ruling in MIRANDA V. ARIZONA has been narrowed as new cases have arisen), it is also true that many Warren Court holdings have been vigorously applied and even extended (for example, the principle of SEPARATION OF CHURCH AND STATE has been forcefully, if still confusingly, applied). What is perhaps most surprising of all, whole new areas of constitutional jurisprudence have been opened up. The foremost example here, of course, is the Court's highly controversial decision in ROE V. WADE (1973), which recognized a woman's constitutional right to have an abortion?subject to a set of conditions that rivaled in their legislation-like refinement the Warren Court's greatly maligned rules for the Miranda warnings. Against this history of overrulings, modifications, extensions, and new creations in the tapestry of decisions of its predecessor Courts, it is difficult to characterize the constitutional course steered by the modern Supreme Court under the stewardship of Warren Burger.

The same difficulty arises if one focuses more specifically on the constitutional thought of Burger himself. Burger may properly be regarded as one of the Court's most conservative members. In the field of criminal justice, he has tended to support police and prosecutors. He has joined in a large number of decisions limiting would-be litigants' access to the federal courts. Although he played an important...