Chief Justice of the United States Warren Burger rose from Midwestern roots to become one of the longest serving Chief Justices in the Court’s history. In American history, only John Marshall, Roger Brooke Taney, and Melville Fuller had longer tenures as Chief Justices when Chief Justice Burger retired.
Warren Burger’s Early Years
Warren E. Burger was born on September 17, 1907, the fourth of seven children in his family. As later friends noted, he was born 120 years to the day after the United States Constitution was signed. His Swiss-German parents were Charles Joseph Burger, a railroad cargo inspector and traveling salesman, and Katherine Schnittger Burger, a homemaker. Burger’s paternal grandfather Joseph had received the Congressional Medal of Honor for his service in the Union Army at the age of 14. One of Burger’s boyhood friends, Harry Blackmun, who lived about six blocks from him as a child, would be an Associate Justice serving with Burger.
Burger’s family had a modest income; and for a while, they lived in a truck farm to help feed the family. To help the family out, he started working as a paperboy by age 9. Burger missed the fourth grade due to illness; but the time at home gave him a start reading American historical biographies and law books. As he grew, he continued to help with the family finances by serving as a camp counselor, lifeguard, stringer for the local paper on high school sports, and a construction laborer.
At John A. Johnson High School in Saint Paul, Burger was president of the student council and chaired the student court. He was editor of the school newspaper and played two instruments. An avid athlete, Burger won letters in football, swimming, hockey, and track. Though he and Harry Blackmun went to different high schools, they played softball and tennis with two other friends on a regular basis.
Though Burger received a scholarship to go to Princeton, his family’s limited means caused him to decide to stay home and help his family out. After high school, Burger attended the University of Minnesota at night, selling life insurance for Mutual Life Insurance of New York by day. After two years at the university, Burger enrolled at St. Paul College of Law as well, sometimes finishing his classes at the University between law school sessions. He graduated magna cum laude from Saint Paul College of Law in 1931.
A Young Lawyer-Citizen
After law school, Burger joined the prominent St. Paul law firm of Boyeson, Otis, Brill & Faricy, later known as Faricy, Burger, Moore & Costello and then as Moore, Costello & Hart. He built a general practice of probate, trial and appellate work, arguing before the U.S. Supreme Court twelve times and numerous times before the Minnesota Supreme Court. He advanced to partner in 1935. Burger also taught Contracts immediately after he graduated and later taught Trusts at St. Paul College of Law, for about 17 years in all. He also served on the law school’s corporate board and later on the board of trustees of William Mitchell College of Law.
As a young lawyer, Burger also became president of the local Junior Chamber of Commerce and a director of the St. Paul Association of Commerce. He was appointed to the Governor’s Interracial Commission and became president of the St. Paul Council of Human Relations in the late 1940s. In that position, he was credited with helping desegregate public accommodations in St. Paul. He was also instrumental in reforming the city’s police force, converting the police chief’s position to a career job, and training police officers in their relationships with minority communities. A special interest of Burger’s was penal system reform, focused on rehabilitation. He later described his vision for prisons as “factories with fences.”
A Political Life Leads to the Court
Warren Burger became active in Republican politics when he organized the Minnesota Young Republicans in 1934. He played a key role in Harold Stassen’s successful 1938 campaign for governor, a role he reprised in 1940 and 1942. At both the 1948 and 1952 Republican National Conventions, Burger acted as manager for Stassen’s unsuccessful campaign for nomination to the Presidency, meeting Congressman Richard Nixon at the 1948 convention. However, when it was clear that Stassen could not get enough votes to be nominated in 1952, Burger switched the Minnesota delegation’s votes to Dwight D. Eisenhower, which clinched the nomination.
When Eisenhower was elected, he appointed Herbert Brownell as the Attorney General. Brownell, who had worked with Burger in the campaign, chose Burger to be his Assistant Attorney General in 1953, heading the 180-lawyer Justice Department Civil Division. Despite his inexperience in federal office, Burger won several maritime law cases involving government shipping and helped to end a dockworker’s strike in 1953. He was noted for moving the Department in the direction of hiring lawyers for their competence rather than political affiliation, and for initiating the Attorney General’s Honors Program for new lawyers.
When a position opened up on the United States Court of Appeals for the District of Columbia in 1955, Eisenhower appointed Burger to the seat. He served on that court from 1956-1969. Burger became known for his conservative views on the rights of criminal defendants, dissenting from cases suppressing evidence under the exclusionary rule and court rulings that, in his view, impeded efficient determinations of guilt.
On the Supreme Court
When President Richard Nixon was searching for a candidate to replace Earl Warren as Chief Justice of the Supreme Court, he focused on candidates who would help him keep his “law-and-order” campaign promises. Warren Burger had gained a reputation for conservatism on criminal justice issues during his tenure on the Court of Appeals. Burger became one of four justices appointed by Nixon, along with Justices Powell, Rehnquist, and Blackmun. He was quickly confirmed by the Senate by a 74-3 vote and sworn in June 23, 1969.
Burger’s seventeen years as Chief Justice were notable for many reasons. Among his most significant court decisions, Burger wrote for the Court in United States v. Nixon (1974), which required President Nixon to turn over the tapes that implicated him in the Watergate scandal to special prosecutor Leon Jaworski.
An author of 287 Supreme Court opinions, Burger wrote several other important opinions as well. Immigration and Naturalization Service v. Chadha (1983), perhaps his favorite opinion, held that a one-house Congressional veto of presidential actions violated the separation of powers. He also authored the majority opinion in Reed v. Reed (1971), the first major gender discrimination case of the modern Court, but he refused to join later decisions holding that gender discrimination cases deserved heightened scrutiny. While he concurred in Roe v. Wade (1973), noting a concern with uneven enforcement of the law, his later concurrence in Bowers v. Hardwick (1986), rejecting a fundamental right for gay men’s sexual privacy, earned him enduring public criticism.
Similarly, while he wrote the majority opinion Swann v. Charlotte-Mecklenburg Board of Education (1971), permitting busing as a remedy for school segregation, his later votes and opinions on cases such as Milliken v. Bradley (1974), limited the ability of federal courts to provide full remedies to Black schoolchildren trapped in segregated schools.
Warren E. Burger also wrote the majority opinion in Miller v. California (1973), dialing back First Amendment protection for obscene materials. Burger made an impact on religious freedom jurisprudence, writing Lemon v. Kurtzman (1971), which became the standard rule in Establishment Clause cases for years to come. He also wrote Bob Jones University v. United States (1983), upholding the government’s ability to withdraw tax exempt status from a racially discriminating university; and Wisconsin v. Yoder (1972), overruling a criminal sentence for Amish parents who refused to send their children to high school for religious reasons.
Chief Justice Burger continued his conservative views in criminal procedure cases, writing that defendants’ statements could be introduced into evidence for certain purposes even if Miranda warnings were not given. His votes helped to reactivate the administration of the death penalty after 1976. Yet, he also successfully pushed for the Federal Bureau of Prisons to institute a grievance procedure for inmates, which decreased the number of pro se complaints brought to the federal courts. A list of writings about Burger’s time on the Supreme Court can be found below.
Known for his prodigious work habits, Burger also spent many of his working hours improving the administration of justice in the federal courts. In addition to streamlining and automating procedures at the Supreme Court, he reduced oral arguments to an hour, made it easier for lawyers to be admitted to the Supreme Court bar, and reconfigured the Court’s bench for better sight lines among the justices. He introduced headnotes and spread out opinions so they did not only come out on Mondays. He also increased security around and inside the Court.
A devotee of history, Justice Burger founded the Supreme Court Historical Society in 1974 and chaired its board. He began a project to document the Court’s history and created the position of Court curator. He also improved the aesthetics of the Supreme Court building, bringing in portraits and busts of former justices and other historical displays to liven up the building.
On a larger scale, Justice Burger focused on engaging the bench and bar in the improvement of the administration of justice. He started the practice of annual reports to the American Bar Association (ABA) on the state of the judiciary. Burger also participated in drafting criminal justice standards for the ABA. He encouraged and participated in conferences on the courts, worked to found the Appellate Judges Conference at NYU, and he cooperated with Congress to address needs of the federal courts. He also successfully called for the creation of the National Center for State Courts at the First National Conference of the Judiciary in Williamsburg, Virginia, in 1971.
Burger also successfully urged many state courts to hire professional administrators to be trained by the Center. He called for more continuing education for judges and trial lawyers, encouraged skills programs in law schools, and lent his efforts toward improving the working relationship between the state and federal courts. He was influential in the creation of the Institute for Court Management, the National Justice Institute, and the State-Federal Judicial Councils; as well as in the expansion of the Federal Judicial Center to become an important source of research and publications about the courts. The initiator of the 1976 Pound Conference, he pushed federal experimentation with alternative dispute resolution mechanisms such as mediation, arbitration, summary jury trials and court-annexed arbitration. He also influenced the reduction of the size of federal juries.
In his role as Chief Justice, Burger had numerous statutory duties and served in honorary roles. He was the presiding officer of the Judicial Conference of the United States; and chaired the Board of the Smithsonian Institution and the National Gallery of Art. He also served as a trustee of the National Geographic Society, and honorary chairman of the Institute of Judicial Administration and the National Judicial College.
Chief Justice Burger continued his earlier advocacy for prison reform, arguing for the creation of the National Academy of Corrections in 1981 to teach prison personnel how to deal with problems such as overcrowding and security. He also successfully argued for establishment of the National Center for Innovation in Corrections and the National Task Force on Prison Industries in 1985.
After the Supreme Court
Chief Justice Burger retired from the Supreme Court in 1986 to devote himself full-time to planning the September 17, 1987 bicentennial celebration of the U.S. Constitution. As the chairman of the Commission on the Bicentennial of the United States Constitution established in 1983, which he had joined as chair in 1985 while he was still Chief Justice, he worked hard to plan public activities to celebrate the signing of the U.S. Constitution and the importance of the Bill of Rights. His comment that “[t]he Declaration of Independence was the promise; the Constitution was the fulfillment” became the Commission’s motto. Burger worked so hard at promoting the Bicentennial that his wife once asked him if he could get his “old job” back.
Among the activities the Commission undertook under his leadership were K-12 and college history teaching projects, map and essay contests, the collection of presidential oral histories, publications, and festivities. After the Commission came to an end in 1991, Burger helped to create the Trust for the Bicentennial of the United States Constitution to continue this work.
Burger also devoted more time after retirement to the Center for State Courts. A product of Burger’s initiative for engagement between British and American judges was the creation of the first American Inns of Court in 1986. The Inns of Court brought together law students, and junior and senior lawyers to focus on professionalism, ethics, and civility, also reflecting Burger’s anglophile sentiments. His educational activities led to his appointment as the 20th chancellor of the College of William and Mary in 1986, a university where his Bicentennial Commission had frequently met.
For his lifetime of dedication to the courts, Chief Justice Burger was awarded the James Madison Award for Distinguished Public Service by the American Whig-Cliosophic Society of Princeton and the Sylvanus Thayer Award by the United States Military Academy, as well as the John Marshall Award for Excellence in American Legal History at William and Mary in 1978. He also won the Presidential Medal of Freedom.
Personal Life
On November 8, 1933, Burger married his former university classmate, Elvera Stormberg, with his boyhood friend Harry Blackmun at his side as best man. He and Elvera had two children, Wade and Margaret Elizabeth.
As a person, Justice Burger was a man of many contrasts. Justice Blackmun remembered him as a good pal who liked to dominate, and to gain attention in a good way. He was an extremely hard worker, doing 80-hour work weeks even as he approached 80, but he had a hard time delegating work to others. Once, when the Chief Justice, with Justices Rehnquist and White, was between interviews of candidates for Director of the Administrative Office of the U.S. Courts, Justice Rehnquist leaned over and said, “Just tell us who you want, Chief.”
Virtually everyone except his closest friends called Burger “Chief.” He was described as politically savvy, but he could also be somewhat secretive about his plans. Some accused him of withholding his views at court conferences until the end so he could select which justice would receive the assignment to write the opinion, or even giving less important opinion assignments to justices who did not vote his way.
Yet, while detractors focused on his “appreciation of pomp and circumstance” and friends agreed that he could be pugnacious, stubborn, and opinionated, the Justices, clerks, and lawyers who knew him also described him as kind, warm, and considerate. They told stories of how he was willing to make his friends dinner and wash the dishes afterwards; or split a Lean Cuisine and some wine at his desk with an administrator while they were polishing a speech. Others told how he once brought his whole staff to the hospital to celebrate a clerk’s new baby. He entertained his former clerks with funny stories at their gatherings and sent some of them his writings and speeches for comment.
Chief Justice Burger loved to go antiquing, and enjoyed decorating the Justices’ dining rooms with antiques. He was an enthusiastic gardener and naturalist. Burger was also an oenophile and an amateur chef, preparing soup for his clerks on Saturday. He enjoyed painting and sculpting. The Franklin Mint reproduced his early bust of Benjamin Franklin, and he contributed a bas-relief of Chief Justice John Marshall to the Supreme Court dining room.
Chief Justice Burger died on June 25, 1995, in Washington D.C.
References
*The quotations in this biography are taken from the references below.
F. Carolyn Graglia, His First Law Clerk’s Fond Memories of a Gracious Gentleman, 74 Tex. L. Rev. 231 (1995).
Douglas D. McFarland, Chief Justice Warren E. Burger: A Personal Tribute, 19 Hamline L. Rev. 1 (1995).
Sandra Day O’Connor, Warren E. Burger: Reflections of a Colleague, 74 Tex. L. Rev. 209 (1995).
Henry L. Parr, Jr., Warren E. Burger: A Law Clerk’s Reminiscences, 74 Tex. L. Rev. 225 (1995).
William H. Rehnquist, A Tribute to My Predecessor, 74 Tex. L. Rev. 207 (1995).
Kenneth W. Starr, The Man from Minnesota: A Remembrance from Things Past, 74 Tex. L. Rev. 223 (1995).
Charles Alan Wright, Warren Burger: A Younger Friend Remembers, 74 Tex. L. Rev. 213 (1995).
Warren E. Burger Online Exhibit (multiple pages), William and Mary University (last visited Apr. 9, 2021).
Warren E. Burger: Chief Justice of United States, Encyclopedia Britannica (Sept. 13, 2020).
Warren E. Burger, Oyez (last visited Apr. 9, 2021).
Warren Burger Biography, Encyclopedia of World Biography, (last visited Apr. 9, 2021).
Library of Congress, The Justice Harry A. Blackmun Oral History Project, Interviews with Justice Blackmun, conducted by Professor Harold Hongju Koh, (1994-95).