Warren E. Burger (1907–1995)

To many observers, the appointment of Warren E. Burger to chief justice of the U.S. Supreme Court by President Richard Nixon signified a conservative counterresponse to the oft-characterized liberal judicial activism of the Court when it was led by Chief Justice Earl Warren. In light of the Warren court’s record of supporting individual rights in criminal cases, school prayer, and desegregation, Nixon was committed to appointing a chief justice who supported judicial restraint, the belief that the Supreme Court should not leverage its power to influence economic and social policy development and that state legislatures and local governments were best suited to deal with such matters. To Nixon, Warren Burger, a former circuit court justice for the United States Court of Appeals for the District of Columbia, epitomized the prudent conservatism and conscientious judicial leadership style the Court lacked. Yet, as some observers suggest, Burger as chief justice will likely never be characterized as a figurehead in a new age of post- Warren legal reasoning.

Even as he sought administrative reform and office improvements for the Court, Burger believed he carried an obligation to represent or speak on behalf of the entire legal community. Modernizing the décor of the Supreme Court facilities, issuing calls for lawyer preparation reform, and advocating for greater professional benefits for federal judges were a few of his notable contributions in this regard. As to his legal impact, Burger faced the formidable task of uniting and introducing change to a court composed of competing judicial philosophies and political backgrounds. In fact, several justices during Burger’s first term had served under Earl Warren and were well accustomed to socially progressive agendas. Although Burger preached restraint, the actual degree to which this attitude permeated the Court’s position on education issues seems moderate when one accounts for the Burger court’s rulings in school desegregation, the place and role of religion in schools, and rights of the disadvantaged.

Unscrupulous acts of evasion and avoidance of desegregation mandates extended many years beyond the Supreme Court’s monumental decision in Brown v. Board of Education of Topeka (1954) and beyond the Warren era as well. Alexander v. Holmes County Board of Education in 1969 signified one of the first real opportunities for Burger to display his resolve and leadership. With the Fifth Circuit willing to oblige schools’ further delay in the implementation of desegregation plans, the Court was forced to decide whether such postponement was allowable.

The Nixon administration firmly supported additional time for schools in the South to comply with the practical elements of the desegregation mandates. For Burger, the practicalities in creating a unitary system were daunting and complex, but not all his fellow justices echoed the same sentiment. Justice Hugo Black for one was willing to file a separate dissent unless the court sent a stern ultimatum that all schools be desegregated at once without delay. While it had become routine for desegregation cases to be ruled upon unanimously so it would not appear that the Court was divided, Justice Burger was faced with the real possibility of a split desegregation opinion.

In the end, Burger and others made concessions and allowances in crafting a per curiam opinion that would in effect relay the totality of the message Justice Black was imploring the Court to convey: further delays would no longer be tolerated. Inasmuch as Nixon supporters in the South were dealt a sizable blow, the case to a considerable degree seemed to reaffirm the Court’s role and influence in state and local policy in a manner no different from that of the Warren court—a notion antithetical to judicial restraint.

While it may have proved his ability to resolve conflict and vote in opposition to the wishes of the president, opinions in later desegregation cases such as Wright v. Council of the City of Emporia (1972), where Burger in dissent argued that the creation of a separate neighboring school system does not necessarily have the primary effect of perpetuating a dual school system, would eventually reveal a more critical analysis of the feasibility of these mandates. Moreover, the addition of Justice William Rehnquist to the bench would also alter the dynamic in this regard.

Some of Burger’s opinions in other constitutional domains were notable in that they implicitly conveyed that the Court served a vital role in safeguarding individual civil liberties. For instance, Burger, writing for the majority in Lemon v. Kurtzman (1971), the Supreme Court’s most significant opinion on churchstate relations, held that state law permitting financial state support of sectarian schools by way of teacher salary supplements, textbooks, and materials violated the Establishment Clause of the First Amendment and thus amounted to an illegal government endorsement of religion.

Burger also authored another landmark majority opinion in Wisconsin v. Yoder (1972), invalidating Wisconsin state law forcing Amish children to attend school beyond their eighth grade year. In Yoder, the Court was of the opinion that the state’s insistence that Amish families abide by its compulsory attendance laws beyond the eighth grade threatened the Amish religious way of life in violation of the Free Exercise Clause of the First Amendment and Equal Protection Clause of the Fourteenth Amendment. While these opinions clearly reveal another dimension to Burger’s jurisprudence, the consummate legacy of Chief Justice Burger will likely be forever remembered more by the impact of his Court collectively rather than by his individual deeds.

Mario S. Torres, Jr.

See also Burger Court

Further Readings

  • Maltz, E. (2000). The chief justiceship of Warren Burger, 1969–1986. Columbia: University of South Carolina Press.
  • Woodward, B., & Armstrong, S. (1979). The brethren: Inside the Supreme Court. New York: Simon & Schuster.

Legal Citations

  • Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969).
  • Brown v. Board of Education of Topeka I, 347 U.S. 483 (1954).
  • Lemon v. Kurtzman, 403 U.S. 602 (1971).
  • Wisconsin v. Yoder, 406 U.S. 205 (1972).
  • Wright v. Council of the City of Emporia, 407 U.S. 451 (1972).