Warren E. Burger

President Richard Nixon introduces Burger as his nominee for the Chief Justice of the Supreme Court

In June 1968, Chief Justice Earl Warren announced his retirement, effective on the confirmation of his successor. President Lyndon Johnson nominated sitting associate justice Abe Fortas to the position, but a Senate filibuster blocked his confirmation, and Johnson withdrew the nomination. Richard Nixon was elected president in November 1968, and Johnson did not make another nomination before his term as president ended on January 20, 1969.[8]

Burger was nominated by President Nixon to succeed Earl Warren on May 23, 1969.[9] The United States Senate Committee on the Judiciary hearing on Burger's nomination took place on June 3, 1969.[10] It was characterized as having been friendly, and saw Burger as the sole individual to deliver testimony.[11] The hearing was reported as having taken only an hour and forty minutes.[12] Afterwards, the committee held a five-minute private session in which they voted unanimously to report favorably on his nomination.[10][11] The Senate confirmed Burger to the court by a 74–3 vote on June 9, 1969,[9][10] and he took the judicial oath of office on June 23, 1969.[13]

Remaking the Supreme Court had been a theme in Nixon's presidential campaign,[8] and he had pledged to appoint a strict constructionist as Chief Justice. Burger had first caught Nixon's eye through a letter of support he sent to Nixon during the 1952 Fund crisis,[14] and then again 15 years later when the magazine U.S. News & World Report reprinted a 1967 speech that Burger had given at Ripon College.[15] In it, Burger compared the United States judicial system to those of Norway, Sweden, and Denmark:

I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity. [Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty. No nation on earth goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.

Through speeches like this, Burger became known as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the U.S. Constitution. Nixon's agreement with these views, being expressed by a readily confirmable, sitting federal appellate judge, led to the nomination.

According to President Nixon's memoirs, he had asked Burger in the spring of 1970 to be prepared to run for president in 1972 if the political repercussions of the Cambodia invasion were too negative for him to endure. A few years later, Burger was on Nixon's short list of vice presidential candidates following the resignation of Spiro Agnew in October 1973, before Gerald Ford was appointed to succeed him.

Official portrait of Warren Burger

The Court issued a unanimous ruling, Swann v. Charlotte-Mecklenburg Board of Education (1971), supporting busing to reduce de facto racial segregation in schools. However, Burger wrote the majority opinion for Milliken v. Bradley (1974), which upheld de facto school segregation across school district lines if segregationist policy was not explicitly stated by all of the districts involved. In United States v. U.S. District Court (1972), the Burger Court issued another unanimous ruling against the Nixon administration's desire to invalidate the need for a search warrant and the requirements of the Fourth Amendment in cases of domestic surveillance. Then, only two weeks later in Furman v. Georgia (1972), the Court, in a 5–4 decision, invalidated all death penalty laws then in force although Burger dissented from that decision. In the most controversial ruling of his term, Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning abortions. However, Burger later abandoned Roe in Thornburgh v. American College of Obstetricians and Gynecologists (1986).

On July 24, 1974, Burger led the Court in a unanimous decision in United States v. Nixon, arising from Nixon's attempt to keep several memos and tapes relating to the Watergate scandal private. As documented in Woodward and Armstrong's The Brethren and elsewhere, Burger's original feelings on the case were that Watergate was merely a political battle, and Burger "didn't see what they did wrong".[16] The actual final opinion was largely Brennan's work, but each justice wrote at least a rough draft of a particular section.[17] Burger was originally to vote in favor of Nixon but tactically changed his vote to assign the opinion to himself and to restrain the opinion's rhetoric.[18] Burger's first draft of the opinion wrote that executive privilege could be invoked when it dealt with a "core function" of the presidency and that in some cases, the executive could be supreme.[19] However, the other justices were able to convince Burger to excise that language from the opinion: the judicial branch alone would have the power to determine whether something can be shielded under an assertion of executive privilege.[20]

Burger joined the majority decision in Board of Education of the Hendrick Hudson Central School District v. Rowley, which was the first special education law case decided by the Supreme Court. The Court upheld the constitutionality of Individual Education Plans, but also held that the school district did not have to provide every service necessary in order to maximize a child's potential.

Burger also emphasized the maintenance of checks and balances among the branches of government. In Immigration and Naturalization Service v. Chadha (1983), he held for the majority that Congress could not reserve a legislative veto over executive branch actions.

On issues involving criminal law and procedure, Burger remained reliably conservative. He dissented in Solem v. Helm, which held that a life sentence for a phony check was unconstitutional. He once stated personal opposition to the death penalty in his Furman v. Georgia dissent,[21] but defended it as constitutional.

With Betty Ford between them, Chief Justice Burger swears in President Gerald Ford following the resignation of Richard Nixon on August 9, 1974

Rather than dominating the Court, Burger sought to improve administration both within the Court and within the nation's legal system. Criticizing some advocates as unprepared, Burger created training venues for state and local government advocates.[22] He also helped found the National Center for State Courts, which is now in Williamsburg, Virginia, as well as the Institute for Court Management, and National Institute of Corrections to provide professional training for judges, clerks, and prison guards.[23] Burger also began a tradition of annually delivering a State of the Judiciary speech to the American Bar Association, many of whose members had been alienated by the Warren Court. However, some detractors thought his emphasis on the mechanics of the judicial system trivialized the office of chief justice. Despite his reputation for being imperious, he was well-liked by the law clerks and judicial fellows who worked with him.[24]

Burger drew internal controversy within the Supreme Court throughout his tenure, as was revealed in Woodward and Armstrong's The Brethren. Although Sen. Everett Dirksen noted Burger "looked, sounded, and acted like a chief justice," the reporters depicted Burger as an ineffective chief justice who was not seriously respected by his colleagues for his alleged pomposity and lack of legal acumen. Woodward and Armstrong's sources indicated that some of the other justices were annoyed by Burger's practice of switching his vote in conference or simply not announcing his vote so that he could control opinion assignments. "Burger repeatedly irked his colleagues by changing his vote to remain in the majority, and by rewarding his friends with choice assignments and punishing his foes with dreary ones."[25] Burger would also try to influence the course of events in a case by circulating a pre-emptive opinion.[26] Clerks mocked him for his perceived egotism and intense homophobia, and Justice Lewis Powell allegedly referred to him as "the great white doughnut", a attack on both his intellect and physical appearance.[27]

Consequently, the Burger Court was described as his "in name only".[28] Time magazine called him "plodding" and "standoffish"[28] as well as "pompous," "aloof," and unpopular.[25] Burger was a constant irritant on the Court's group dynamic, according to The New York Times' Linda Greenhouse.[29] Jeffrey Toobin wrote in his book The Nine that by the time of his departure in 1986, Burger had alienated all of his colleagues to one degree or another.[30] In particular, Associate Justice Potter Stewart, who had been considered a candidate to succeed Warren as chief justice, was so discontented with Burger that he became the primary source for Woodward and Armstrong when they wrote The Brethren.

Greenhouse pointed to INS v. Chadha as evidence of Burger's "foundering leadership". Burger would cause the case to be delayed for over twenty months although there had been five votes to affirm the appeals court's finding of unconstitutionality after the case had been first argued: Brennan, Marshall, Blackmun, Powell, and Stevens. Burger did not allow an opinion to be assigned, first by asking for a special conference on the case and then by delaying the case for reargument when that conference fell through even though he never held a formal vote on holding the case over for reargument.[31]

No women served on the Supreme Court until 1981, and Burger was strongly opposed to giving a seat to a female judge. In 1971, President Nixon considered nominating Mildred Lillie to the Supreme Court. Former White House Counsel John Dean had said that the greatest opposition to Lillie came from Chief Justice Burger.[32] Dean indicated that Burger threatened to resign over the nomination.[33]

Burger was deeply prejudiced against gays to an extent which bordered on hysteria.[34] Burger sent Byron White, who wrote the majority opinion in Bowers v. Hardwick upholding laws banning homosexual relations between consenting adults, a letter telling him to condemn homosexuality in his opinion. White refused.[35] When Lewis Powell voted to strike down the anti-gay laws, Burger aggressively lobbied him to change his mind, and sent him a letter so hostile towards homosexuals that Powell mockingly described it as "nonsense".[36] Burger wrote his own opinion attacking homosexuality, quoting a description of it as "an infamous crime against nature, of deeper malignity than rape, and an act not fit to be named, the very mention of which is an affront to human nature", and noted, with apparent approval, that homosexuals were once executed.[37][38] Burger's language mobilized gay rights advocates to work to overturn sodomy laws, eventually succeeding in the 2003 case Lawrence v. Texas.[39]