Burger, Warren Earl (1907–1995)

Warren Burger was the second of three St. Paul lawyers to serve on the US Supreme Court, and the only one to serve as chief justice. Appointed by President Richard Nixon in 1969, he presided over controversial decisions involving abortion, the death penalty, school busing, the Pentagon Papers, and executive privilege during the Watergate scandal. He retired from the court in 1986.

Burger grew up in St. Paul’s Dayton’s Bluff neighborhood (where Harry Blackmun was a childhood chum) and attended public schools. He was an athlete and student council president at Johnson High School before graduating in 1925. Although Burger took courses at the University of Minnesota, he never sought a degree there; instead, he got a law degree (1931) from St. Paul College of Law (later Mitchell-Hamline) after reaching the top of his class. He then joined a prominent downtown St. Paul firm and practiced law in the city for the next twenty-two years.

Like many young Republicans, Burger joined the political network created by Minnesota Governor Harold Stassen. He served as Stassen’s floor manager at the 1944 Republican National Convention and his presidential campaign manager in 1948. At the convention of 1952 Burger’s deft management of a credentials dispute helped swing the presidential nomination to Dwight Eisenhower.

After his election Eisenhower appointed Burger chief of the civil division of the Department of Justice and then, in 1955, to the US Court of Appeals for the DC Circuit, generally considered the nation’s second-most important court. 

After Chief Justice Earl Warren announced his retirement in 1968, it fell to President Richard Nixon to choose Warren’s successor. Nixon had run on a tough-on-crime platform, and one of his goals for the Supreme Court was to roll back the Warren Court’s controversial reforms, especially in protections for those accused of crime. Judge Warren Burger also deplored those reforms, and his speeches and writings caught Nixon’s eye; he also had admirable experience and a spotless record. The senate confirmed him as chief justice by a vote of 74-3.

A chief justice has limited powers. He controls just one vote of nine on the Supreme Court; his official functions otherwise are administrative and ceremonial. A chief may lead through gifts of intellect or diplomacy, or both, but Burger was not blessed with either. The Court turned more conservative during his tenure, but mostly through turnover. Presidents Nixon and Ford appointed six Republican justices—Burger, Blackmun, Rehnquist, Powell, Stevens, and O’Connor—between 1969 and 1984.

President Nixon did not realize his hopes that Burger would lead the Supreme Court in a decisively conservative direction, in part because Burger himself professed no systematic ideology. The Burger Court made its decisions on a case-by-case basis, generally trying to balance competing interests. By the standards of the early twenty-first century, it would not be seen as particularly conservative. The same goes for Justice Burger himself. Scholars reviewing his tenure have found the record mixed and disputed, using the terms conservative, activist, pragmatic, and even liberal. Most rate his leadership as undistinguished.

Many of the cases decided on Burger’s watch remain important and controversial. Swann v. Charlotte-Mecklenberg (1971) allowed compulsory school busing to achieve desegregation; Furman v. Georgia (1972) suspended use of the death penalty, later re-allowed with severe limitations; Wisconsin v. Yoder (1972) allowed Amish families to opt out of compulsory schooling; Miller v. California (1973) established a new constitutional definition of obscenity; Buckley v. Valeo (1976) scuttled political campaign spending limits; California v. Bakke (1978) limited affirmative action in higher education. 

Burger voted with the majority in the most consequential decisions of the time: New York Times v. US (1971), allowing publication of the Pentagon Papers; Roe v. Wade (1973), allowing most. abortions; and US v. Nixon (1974), requiring President Nixon to surrender his Watergate-related tape recordings. That unanimous opinion, credited to Burger, led directly to the resignation of the man who had appointed Warren Burger to the Supreme Court.

Warren Burger retired from the Court in 1986 and died in 1995.