Former Chief Justice Warren Burger Dies at 87 : Judiciary: Conservative Nixon appointee’s court was surprisingly liberal. Clinton hails jurist’s ‘tireless service.’


Former Chief Justice Warren E. Burger, a conservative jurist who for 17 years led a fractured and at times surprisingly liberal Supreme Court, died Sunday. He was 87.

Burger died of congestive heart failure following a lengthy illness. He served from 1969 to 1985--the longest tenure this century--as the nation’s 15th chief justice.

President Clinton praised Burger as a visionary chief justice. “His expansive view of the Constitution and his tireless service will leave a lasting imprint on the court and our nation,” Clinton said in a statement from Little Rock, Ark.

Though the late chief justice was appointed as a law-and-order judge, the “Burger court” of the 1970s and early 1980s is best remembered for rulings that established a woman’s right to abortion, ordered cross-town busing for school desegregation, outlawed sex discrimination by the government, upheld affirmative action for minorities and--at least for a time--struck down the death penalty.


Those rulings did not always reflect Burger’s views. In the court’s private conferences, he told his colleagues that he favored overruling such precedents as Miranda vs. Arizona, which required the police to warn suspects of their rights, and the so-called exclusionary rule, which required that illegally obtained evidence be excluded from a trial.

But despite his persistent efforts, Burger was unable to muster a majority for his opinions. In a series of rulings on criminal justice, the court trimmed around the edges on matters such as search and seizure and police identifications but stopped short of overturning any of the liberal precedents of the Earl Warren court.

Faced with colleagues whose views were more liberal than his, Burger often found himself reluctantly joining court rulings and then writing concurring opinions that put a more moderate spin on the outcome.

In Roe vs. Wade, for example, Burger voted with the 7-2 majority in 1973 to strike down a Texas law that made abortion a crime, and he added a separate opinion stating that “abortion on demand” was not required. Nonetheless, later rulings made clear that abortion on demand was the law, at least until the third trimester of pregnancy.


Burger was a conservative member of the influential U.S. Court of Appeals during the 1960s, during the high court’s most liberal period. In several speeches and articles at that time, Burger decried the willingness of liberals to elevate the rights of criminal defendants. He also fretted about the breakdown of law and order in the cities and called for a more “reasonable balance” between government authority and the rights of the individual.

“We know that a nation or a community which has no rules and no laws is not a society but an anarchy in which no rights, either individual or collective, can survive,” Burger said in one speech.

Burger was not alone in expressing those views. His words caught the attention of Richard Nixon, who was voicing similar themes throughout his campaign for the presidency in 1968.

Nixon promised a shake-up of the high court and a return to law and order if elected. In one of his first moves after he took office, Nixon selected Burger to fill the vacancy left by retiring Chief Justice Earl Warren in 1969.

Three other Nixon appointees soon followed, and most experts predicted a sharp turn to the right by the court. But it never quite happened then.

In 1983, a group of law professors aptly summed up the prevailing view of his court in a book titled “The Burger Court: The Counter-Revolution That Wasn’t.”

During his 17 years as chief justice, Burger served under four presidents and he twice played a key role in the Watergate scandal as the drama unfolded in the summer of 1974.

Facing impeachment and criminal investigation, President Nixon appealed to the high court to block a subpoena demanding that he turn over disputed Oval Office tape recordings. The embattled chief executive rested his hopes on Burger, his first court nominee.


But the chief justice spoke for a unanimous court, ruling that Nixon could not invoke “executive privilege” to obstruct a criminal inquiry. No person--including the President--is above the law, the court said.

His last appeal exhausted, Nixon finally yielded the tapes that demonstrated his role in leading the cover-up of the Watergate affair. Two weeks later, he resigned.

Burger was attending a conference in the Netherlands when word came that Nixon would leave office the next day. Shortly afterward, Vice President Gerald R. Ford reached him on the phone.

“Mr. Chief Justice, I hate to interrupt your trip, but I would like it very much if you could be here for the swearing-in,” Ford said.

Burger said he would gladly preside at the ceremony, even though he faced an all-night flight to Washington. “I’ve got to be there. And I want to be there,” he told Ford.

At noon on Aug. 9, 1974, one President officially resigned and another took over, but the unprecedented ceremony had at least one familiar feature as the chief justice read Ford the oath of office.

No one questioned that Burger was well suited for his ceremonial role as leader of the nation’s judiciary. He had flowing white hair, a sharp chin and a baritone voice, and he took great pride in the dignity of his office. He often noted that he was not only the chief judge of the Supreme Court but had held the office of chief justice of the United States for longer than any person in this century.

Nor did anyone doubt that Burger reveled in the role. For many years in Washington, even after he stepped down, he could be seen riding through town in the back of a long government limousine whose license plate read: “CJ 15.”


But Burger had a rocky relationship with several of his independent-minded colleagues, who found him to be pompous and petty. Justice Potter Stewart once derided him as the “show captain” of the court, and the sunny-sided William J. Brennan dismissed him as a “dummy” in front of his clerks. Even his boyhood friend Harry A. Blackmun came to despise Burger, noting that he himself was in the “chief’s doghouse” because he had voted the wrong way in one case.

The 1979 book “The Brethren” by Bob Woodward and Scott Armstrong dealt Burger’s reputation a further blow by recounting stories that portrayed him as arrogant and officious.

But many others, including former clerks and court employees, said that these portraits were unfair and misleading. They said that Burger was courteous and kind, even if a bit shy and withdrawn. Several of the justices who disagreed with Burger on legal matters found themselves taken aback by Burger’s generosity when they or a family member fell ill.

“We can disagree like hell,” one justice told a reporter, “but he can be so kind and gracious too.”

Burger had a special interest in history and often lectured on the nation’s founders and their view of the role for the Supreme Court. Not surprisingly, as the 200th anniversary of the U.S. Constitution approached, Burger agreed to lead a commission set up to promote its celebration. In 1986, distressed that the bicentennial celebration was behind schedule, Burger made a decision that surprised nearly everyone in Washington, including the White House.

In late May, he made an appointment to see President Ronald Reagan for a brief chat about the bicentennial. Burger droned on for several minutes, and the President seemed to be paying little attention. But all ears perked up when Burger commented that he planned to devote full time to the task of running the bicentennial commission. At age 79, he said he was ready to leave the duties of the court.

Burger’s decision was kept a closely held secret in the White House. Three weeks later, Reagan walked into the pressroom and, to the amazement of official Washington, announced that the chief justice was retiring, and that Justice William H. Rehnquist would take his place. After 17 years, the Burger court had come to an end.

“Warren presided with great distinction over some of the most significant decisions in the court’s history,” said William P. Rogers, secretary of state under Nixon and attorney general in the Dwight D. Eisenhower Administration. “With the passage of time, his great contribution to the history of our nation will be more and more understood and appreciated.”

Warren Earl Burger had come a long way. He was born Sept. 17, 1907, in St. Paul, Minn., and spent much of his youth on the 20-acre truck farm that his family owned on the outskirts of the city. In high school, he was president of the student council and editor of the school paper. He won letters in football, hockey, swimming and track and field. Upon graduation, he sold life insurance for six years while attending the University of Minnesota and the St. Paul College of Law at night.

As a young lawyer, Burger became active in Republican politics and worked for the election of Gov. Harold E. Stassen. In 1948, when Stassen ran for the presidency, Burger directed his campaign. While the Minnesota governor failed to win the Republican nomination, his campaign manager made a series of key contacts, including Herbert Brownell, later to become President Eisenhower’s attorney general.

Four years later, Burger was back at the Republican National Convention as the floor manager for Stassen. At a key moment, he threw the Minnesota delegation’s support to Eisenhower, clinching his nomination on the first ballot.

Brownell brought Burger to Washington and made him head of the Justice Department’s civil division. In 1956, Eisenhower appointed Burger to a judgeship on the influential U.S. Court of Appeals for the District of Columbia.

Burger did not fit the pattern of most men who were elevated to the Supreme Court. He did not come from a prominent family and was not wealthy. He had not graduated from a prestigious law school and he had neither worked for a well-known law firm nor held high political office.

But like Nixon, he had worked his way up from humble beginnings. And he espoused a solid, common-sense conservatism. On May 21, 1969, Nixon introduced Burger as his choice to head the Supreme Court.

The veteran justices, some of whom such as Hugo Black and William O. Douglas had been on the bench since the 1930s, were miffed by the temerity of the new chief justice.

“He took our conference room as his office, and without consulting us,” Douglas complained. Burger also passed on word that he had spoken to the FBI and that its officials were concerned that the justices could be kidnaped by foreign agents and held for ransom.

“Tell the FBI that the kidnapers should pick out a judge that Nixon wants back,” replied Douglas, a strident liberal who had clashed with Nixon.

Off the bench, Burger kept up a busy schedule. He headed the Judicial Conference of the United States, the policy-making body for the federal courts; chaired the board of the Federal Judicial Center, the research and training arm of the judicial system, and helped supervise the Administrative Office of the U.S. Courts, which oversees the administration of the courts.

He constantly lobbied Congress for more funding for the courts, and even the critics of his legal rulings praised him for helping to bring the federal courts into the modern era with computers and better case management.

But Burger firmly resisted other modernisms such as television and advertising. In 1981, he pushed and punched at a television cameraman who had followed him toward an elevator. During his time as head of the judiciary, he adamantly refused to allow cameras in the federal courts.

Almost without fail, an American Bar Assn. convention was not complete without a speech from Burger denouncing lawyers who advertised their services. This and other developments cheapened an honorable profession, Burger complained.

Burger is survived by a son, Wade, and a daughter, Margaret, and two grandchildren. His wife of 61 years, Elvera, died last year. Funeral arrangements are pending.

Times staff writer Glenn F. Bunting contributed to this story.


Former Chief Justice Burger Dead at 87

Born: Sept. 17, 1907, in St. Paul, Minn.

Educated: University of Minnesota, undergraduate, St. Paul College of Law

1931: Joined Minneapolis law firm

1939: Managed the gubernatorial campaign of a young Harold Stassen

1956: Named by President Eisenhower to the U.S. Circuit Court of Appeals for the District of Columbia

1969 to 1986: Served as chief justice of the United States

* Legally defined obscenity

* Established busing as a tool to end segregation

* Forced President Nixon to release Watergate tapes

* Led the national celebrations of the Constitution’s 200th anniversary in 1987 and the Bill of Rights’ 200th anniversary in 1989

* Upheld affirmative action

* Established right to abortion

Excerpts of Major Opinions

From Miller vs. California in 1973:

State statutes designed to regulate obscene materials must be carefully limited.

The basic guidelines for the trier of fact must be (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

From Lemon vs. Kurtzman in 1971:

The language of the religion clauses of the First Amendment is at best opaque, particularly when compared with other portions of the amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers.

The Constitution decrees that religion must be a private matter for the individual, the family and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.

From Richmond Newspapers vs. Virginia in 1980:

We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.