BURGER, WARREN E. (1907–1995)

Warren Earl Burger was born in St. Paul, Minnesota. He attended the University of Minnesota and, in 1931, received 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 role in the Court's recognition of constitutional rights in areas such as sex discrimination, discrimination against aliens, and school busing, in each of these areas he has resisted extension of the rights initially recognized. Nonetheless, he has been inclined to accept the validity of congressional civil rights legislation, and to read those laws generously. And he has been a strong supporter of claims of religious liberty. Generally, he has joined the majority as it has pursued this surprisingly labyrinthine constitutional course. The starting point, therefore, for thinking about the constitutional thought of Warren Burger (just as it is for the Court as a whole during his tenure) is the realization that his opinions do not reflect an especially coherent vision of the Constitution and its contemporary significance.

But to say that the decisions and opinions of Burger, taken together, do not add up to a coherent whole does not mean that there are no important themes working their way through them. It is in fact quite possible to locate several distinct threads of thought: for example, a desire to return greater political power to the states in the federal system and to give greater protection to property interests is frequently reflected in Burger's constitutional opinions. But perhaps the most important characteristic of Warren Burger's opinions while Chief Justice is to be found in the area of individual rights and freedoms. It is there that one feels the strongest tension between a commitment to constitutional standards that control and limit the legislative process and a desire to maintain legislative control over the moral and intellectual climate of the community. It is in the resolution of that tension that one is able to determine what is most distinctive about Burger's constitutional jurisprudence.

Burger has frequently displayed a willingness to protect individual freedom at the expense of the interests of the state. His opinion for the Court in Reed v. Reed (1971), for example, was the first to subject gender classifications to more rigorous equal protection scrutiny than had theretofore been the case. But, that said, it is also critical to an understanding of Burger's approach to the bill of rights to see that the depth of his commitment to individual liberties has been limited by a seemingly equal reluctance to extend constitutional protection to individuals or groups whose challenged behavior has gone beyond what may be called the customary norms of good behavior.

Two areas of First Amendment decisions are revealing here. In wisconsin v. yoder (1972), for example, Burger wrote an opinion for the Court upholding the right of members of an Amish religious community to refuse, on religious grounds, to comply with the Wisconsin compulsory school-attendance law. In his opinion Burger repeatedly emphasized the fact that the Amish had adopted a traditional lifestyle, saying at one point how "the Amish communities singularly parallel and reflect many of the virtues of thomas jefferson's ideal of the "sturdy yeoman." On the other hand, in every case in which a speaker who used indecent language has sought the protection of the First Amendment, Burger has rejected the claim (though in these cases, usually in dissent) and, in doing so, has stressed the importance of maintaining community norms about proper and improper behavior.

In Burger's opinions, therefore, the protection of a specific liberty is often tied to his assessment of the respectability of the behavior. Sometimes this underlying attitude for a decision has been misinterpreted for other motivations. For example, in columbia broadcasting system, inc. v. democratic national committee (1973), a major decision rejecting the claim that individuals and groups have a constitutional and statutory right to purchase airtime from broadcast stations in order to discuss public issues, Burger emphasized the importance of preserving the "journalistic autonomy" or "editorial discretion" of broadcasters, a theme reported in the press accounts of the case at the time. But this suggestion that the decision rested on a heightened respect for editorial freedom, and a preparedness to live with the consequent risks of bad editorial behavior, was considerably undermined by an additional thought Burger expressed. Freedom for broadcast journalists was to be preferred, he said, because broadcasters were regulated and therefore "accountable," while "[n]o such accountability attaches to the private individual, whose only qualifications for using the broadcast facility may be abundant funds and a point of view."

It is a noteworthy feature of Burger's constitutional work that in the area of freedom of the press he has written many of the Court's most prominent decisions upholding claims of the print media for protection against various forms of government regulation. Burger wrote for the Court in miami herald publishing co. v. tornillo (1974), holding that states could not require a newspaper to provide access to political candidates who had been criticized in the newspaper's columns; in nebraska press association v. stuart (1976), holding that courts could not enjoin the media from publishing in advance of trial purported confessions and other evidence "implicative" of an accused individual; and in richmond newspapers, inc. v. virginia (1980), holding that courts could not follow a course of generally excluding the media from attending and observing criminal trials.

Yet, despite this strong record of extending constitutional protection to the press, the Burger Court, and especially Burger himself, has been strongly criticized by various segments of the press for retreating from earlier precedents and for being generally hostile to press claims. Burger, it is true, has sometimes voted along with a majority to reject press claims, as, for example, in branzburg v. hayes (1972), when the press urged the Court to recognize a limited constitutional privilege for journalists against being compelled to give testimony to grand juries, or in gertz v. robert welch, inc. (1974), when the press sought to extend the "actual malice" standard in libel actions to all discussions of public issues, not just to those discussions concerning public officials and public figures. But an objective assessment of the holdings of the Burger Court does not seem to warrant the general accusation of its hostility to the press. It is too easy to lose sight of the basic truth that in virtually every case that involved significant issues of press freedom Burger has supported the press, and in many of them has written the majority opinions.

Is it possible to account for this discrepancy between criticism and performance? Here again the best explanation is to be found in Burger's disinclination to extend constitutional protection to activity judged as falling below conventional standards of good behavior. But in the area of freedom of the press this disinclination has manifested itself less in the actual results Burger has reached in particular cases and more in the craftsmanship and the tone of his judicial opinions.

The contrast between the opinions of the Warren Court and of Burger in the freedom of press area is remarkable. With Warren Court opinions the tone struck is almost uniformly that of praise for the role performed by the press in the American democratic political system. They extol the virtues of an open and free press. Although the same theme is to be found in Burger's judicial work, one often encounters rather sharp criticism of the press as well. Burger has actively used the forum of the Supreme Court judicial opinion to ventilate his feelings about the condition of the American press, and not everything he has had to say in that forum has been complimentary. One should consider in this regard one of the major cases in the free press area just mentioned, Miami Herald Publishing Co. v. Tornillo. In that case Burger's opinion for the Court begins with a lengthy and detailed description of the argument advanced by the state of Florida in support of its statute, which guaranteed limited access for political candidates to the columns of newspapers. The press has grown monopolized and excessively powerful, the state contended: "Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.… Such national news organizations provide syndicated 'interpretive reporting' as well as syndicated features and commentary, all of which can serve as part of the new school of 'journalism.' " While ultimately rejecting the legal conclusion that the state sought to draw from this assumed social reality, Burger's opinion nevertheless strongly intimates sympathy with the general portrait of the press which the state's argument had painted. Thus, while the press may have had an ally in the constitutional result, it did not in the battle for public opinion generally.

Although Warren Burger retired from the Supreme Court at the end of the 1985–1986 term, what the lasting impact of his constitutional thought will be is of course impossible to tell. For the moment the most appropriate general assessment is that Burger's constitutional work displays a general disunity of character, while suggesting a responsiveness to generally conservative instincts, even when he is on the liberal side.

Lee C. Bollinger
(1986)

Bibliography

Blasi, Vincent, ed. 1983 The Burger Court. New Haven, Conn.: Yale University Press.

Bollinger, Lee C. 1986 The Tolerant Society: Freedom of Speech and Extremist Speech in America. New York: Oxford University Press.

Choper, Jesse 1980 Judicial Review and the National Political Process. Chicago: University of Chicago Press.

Symposium 1980 The Burger Court: Reflections on the First Decade. Law and Contemporary Problems 43:1.