In 1969 President Richard M. Nixon appointed Warren Earl Burger (1907–1995) as the 15th chief justice of the United States, a position Burger held for 17 years.
Burger was born in St. Paul, Minnesota, on September 17, 1907, the fourth of seven children of railroad cargo inspector and traveling salesman Charles Burger and his wife Katherine. Suffering from polio at the age of eight, Burger spent a year at home, reading autobiographies of judges and attorneys; he knew at a very young age that he wanted to be a lawyer.
When Burger reached college age, he turned down an insufficient scholarship from Princeton University and instead enrolled in extension classes at the University of Minnesota in 1925. Two years later, he started to attend night classes at the St. Paul College of Law (now the William Mitchell College of Law), from which he graduated magna cum laude in 1931. He was admitted to the Minnesota Bar the same year.
Burger began his legal career in 1931 as an associate at a law firm where he became a partner in 1935. While practicing law, Burger also taught contract law at his alma mater from 1931 to 1953. A lifelong Republican, Burger played an active part in politics. During the 1952 Republican National Convention, he supported the eventual party nominee, Dwight D. Eisenhower, which led to his appointment in 1953 to head what is today the Civil Division of the Justice Department. President Eisenhower later nominated Burger to the District of Columbia Circuit Court of Appeals in 1955.
Burger was a surprise choice for chief justice
Although Burger’s record during his 13 years on the appeals court was largely conservative, especially with respect to criminal cases, he was considered a surprise choice for the Supreme Court when Nixon nominated him to replace retiring Chief Justice Earl Warren.
Burger, who critics said lacked analytical rigor and great eloquence, brought a common sense approach to his decisions, and he was a strong advocate for the Court. He worked to balance liberal and conservative extremes on the Court, to the disappointment of hard-line conservatives who had hoped he would take the Court in a more conservative direction.
Burger Court established the Lemon Test
On religious liberty, for example, the Burger Court kept and extended many of the liberal Warren Court’s precedents outlawing state-sponsored religious exercises in public schools. Writing for the Court in Lemon v. Kurtzman (1971), Burger established a three-prong test for determining whether laws or government actions effectively established religion in violation of the First Amendment. The Lemon test permitted laws supporting religion only if they had a secular purpose, had a primary effect that neither advanced nor harmed religion, and did not create an excessive entanglement between church and state.
In one application of the Lemon test, the Burger Court voted 5 to 4 in Stone v. Graham (1980) to invalidate a Kentucky law that required the posting of the Ten Commandments on classroom walls on the grounds that it violated the first prong of the test and thereby the First Amendment.
The Burger Court, however, sometimes took a more expansive view of the First Amendment religion clauses. For example, in Widmar v. Vincent (1981) the Court concluded that a state university, which had feared violating the establishment clause, could not exclude religious student groups from meeting in facilities available to secular student organizations. Separately in Wisconsin v. Yoder (1972), Burger wrote the majority decision that rejected compulsory high school education for the Amish, deeming it a violation of their freedom of religion.
The Burger Court clarified the Court's position on prior restraint
In First Amendment free expression and association cases, the Burger Court clarified the Court’s position on prior restraints on the press, maintaining that the government must demonstrate a “heavy burden” of justification to impose such restraints. Burger himself was protective of the freedom of the press; for example, he argued in Miami Herald Publishing Co. v. Tornillo (1974) that newspapers should not be required to give space to people who were criticized in their pages and wished to reply. He also struck down a gag order restricting coverage of a criminal case in Nebraska Press Association v. Stuart (1976). However, Burger dissented in New York Times Co. v. United States (1971), when the majority prohibited prior restraint in the publication of the Pentagon Papers.
Burger was willing to regulate certain categories of speech in schools
In addressing other issues that often arose under the First Amendment, Burger showed willingness to regulate pornography, dirty words, and disruptive speech in schools. He wrote the Court’s decision articulating standards under which government could prosecute obscenity in Miller v. California (1973) and its companion case, Paris Adult Theatre I v. Slaton. In Bethel School District No. 403 v. Fraser (1986), his last opinion for the Court, Burger wrote that public school officials could punish students for lewd and vulgar speech.
Burger retired in order to chair the Commission on the Bicentennial of the United States Constitution. He was delighted that the Constitution’s 200th birthday, September 17, 1987, was also his 80th birthday. After his wife, Elvera Stromberg Burger, passed away in 1994, Burger’s health rapidly deteriorated; he died of congestive heart failure on June 25, 1995. He was laid in state in the Great Hall of the Supreme Court and buried next to his wife at Arlington National Cemetery.
Salmon A. Shomade, J.D., Ph.D., is an Associate Professor of Political Science at Oxford College of Emory University and an Adjunct Professor of Law at Emory University Law School. Dr. Shomade is the author of Decision-making and Controversies in State Supreme Courts (2018). This article was published in 2009 when Professor Shomade was at University of New Orleans.
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Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it.
Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions.
Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.
Spearheaded by Chief Justice Earl Warren and Associate Justice William Brennan, the Warren Court radically expanded the reaches of the judicial power and altered constitutional law in a way that reverberates to this day. The changes were legion, including a constitutional right to privacy,[3] the right to remain silent,[4] the elimination of official school prayer in public schools,[5] desegregation,[6] and much more. Warren was the leader of the liberal wing; Brennan would provide its intellectual underpinnings. After he was no longer president, Eisenhower purportedly said, “I have made two mistakes, and they are both sitting on the Supreme Court.” Or that Warren’s nomination was “the biggest damn-fool mistake I ever made,” or that his biggest mistake was “the appointment of that dumb son-of-a-bitch Earl Warren.” Historians argue whether or not Eisenhower ever said any of the above. But the statements reflect how Eisenhower and many others felt. How then, if Eisenhower did not intend a revolution, did he ignite one anyway? The answer lies in two elections: the 1952 and 1956 Presidential elections.
Despite his overwhelming popularity among the American people, Ike was not assured the Republican nomination in 1952. After being convinced by the Draft Eisenhower movement to run, his main opponent was Senator Robert Taft of Ohio, son of President and Chief Justice William Howard Taft. Known as “Mr. Republican” for his stalwart conservatism, he and his supporters believed that after scores of failed dime-store New Deal candidates, only a true conservative nominee could put a Republican in the White House after a generation of failure. Like his father forty years before him, Taft controlled the party machinery, hoping to best a less conservative but more popular opponent. When the convention opened in Chicago–– coincidentally the same city as the Taft-Roosevelt convention years before––neither Taft nor Eisenhower definitively had a majority of the delegates. Enter Warren.
In 1952, Earl Warren was in his third term as Governor of California. A Republican, he started his public career as District Attorney of Alameda County. Appalled by the corruption he saw in state government, he busted bribe-taking politicians and officials, cracked down on crime, and ran his office in a professionalized, non-partisan way.[7] He would keep these attributes as he ran successfully for California Attorney General[8] in 1938, then Governor in ’42, ’46, and ’50. He campaigned and governed as a fiscal conservative but a progressive social reformer, winning acclaim and praise within the state and without as “an able, incorruptible administrator who has built up enormous public faith in his honesty and political integrity.” He was so popular that in his first campaign for reelection, he won both the Democratic and Republican primaries, running virtually unopposed. Such success led him to talk of presidential aspirations. Warren was Thomas Dewey’s ticket mate as vice-president in the 1948 election, best remembered as the erroneous “Dewey Defeats Truman” election.[9] This was the only election Warren would ever lose.
With such success, Warren declared himself a candidate for President in 1952. As California’s “favorite son,” he was assured of its seventy-odd delegates, on the first ballot at least. Warren hoped that if Taft and Eisenhower deadlocked, both would lose momentum and he could be the compromise candidate. Enter Richard Nixon. If you may allow a bit of editorializing, I believe that Nixon is one of the most important figures in Supreme Court history to never have sat on the bench. He will figure prominently in many future articles. Forty years old at the time, Delegate Nixon was California’s junior senator. Despite this, there was little love lost between the two. Both won overwhelming statewide victories in 1950, attracting independents and Democrats, but in very different ways. Warren won through policies appealing to the center; Nixon won by painting his opponents as communist sympathizers and accusing his opponent in the 1950 Senate election as “pink right down to her underwear.”
Nixon, nominally pledged to Warren on the first ballot, let it be known in private that he truly supported Eisenhower. In return, viewing Nixon as a young, energetic candidate who could unite the conservative elements of the party, Eisenhower’s campaign staff offered him the vice president spot if he could get California’s support. Warren’s biographers portray Nixon as a backstabber, looking out for only his own ambition. In fairness, Warren refused to endorse Nixon when he first ran for Congress and only tepidly supported Nixon’s run for Senate. There was little reason for Nixon to be loyal to Warren, and both would detest each other for the rest of their lives. (Stay tuned for future articles on this.)
Senator Nixon played a crucial role in getting California to adopt the “Fair Play Amendment” during the convention. Complicated and arcane, the amendment involved something called “the Texas Steal” and two competing delegations from southern states, one for Taft and one for Eisenhower, trying to get seated at the convention. A vote for “Fair Play” was in essence a vote for Eisenhower and would come close to securing him the nomination, thus ending Warren’s chance for the presidency. In the end, the Fair Play Amendment won, and Eisenhower cinched the nomination on the first ballot.[10] Had Warren become president, vice president, or some other spot, there would be no Warren Court. Ike would easily win the election.
Eisenhower, however, was impressed by Warren. When discussing his ideal justice, he told advisors he wanted on the court “a man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.” In other words, he was looking for a “statesman.” The historical record is mixed, and will perhaps never be known. Some sources report a quid pro quo agreement, such that Warren would vigorously campaign for Eisenhower in exchange for a spot on the Court. I do not find these claims to be overly credible. Warren fit many of the attributes Ike listed and Ike seemed to have a genuine respect for Warren and thought him to have similar “middle of the road” philosophy. Eisenhower called Warren to tell him Ike considered him for Attorney General, but decided to go elsewhere. Warren claimed that afterwards, Ike said, “I want you to know that I intend to offer you the first vacancy on the Supreme Court.” In any event, Warren believed he had been promised a spot on the Court. On September 8, 1953, Chief Justice Fred Vinson suffered a heart attack and passed away at the age of 63.[11] After some hesitation (Eisenhower thought there was some difference between being promised an Associate position versus the Chief Justice; Warren adamantly said there was not), Ike put Warren on the Court through a recess appointment in time for the 1953 October term. Warren was confirmed by the Senate by a voice vote on March 1, 1954. The rest, as they say, is history.
Sources include Stephen E. Ambrose’s “Eisenhower: Soldier and President”, James F. Simon’s “Eisenhower vs. Warren”, and Ed Cray’s “Chief Justice: A biography of Earl Warren.” Next time, Eisenhower’s other “mistake”: Justice Brennan’s path to the high court.