Former Chief Justice Warren Burger Dies Nominated By Nixon, He Played A Role In President’s Downfall

Warren Earl Burger, whose chiseled features and formidable mane of white hair made him the very model of an idealized chief justice, may be best remembered for leading the counterrevolution that wasn’t.

Burger, a conservative jurist who died Sunday at the age of 87 from congestive heart failure, and his colleagues on the Burger Court were widely expected to roll back the liberal doctrines of the Warren Court that preceded them.

Instead, during Burger’s 17-year tenure as chief justice, from 1969 to 1986, the Warren Court legacy survived. In fact, it thrived.

“It’s always been somewhat comforting to know,” Burger said shortly after his retirement, “that I have been castigated by so-called liberals for being too conservative and castigated by so-called conservatives for being too liberal. Pretty safe position to be in.”

Critics in the media frequently referred to the Burger Court as rootless, leaderless, rudderless, fragmented, unpredictable, an enigma and nine justices in search of a theme.

“That’s what freedom of the press is for - the freedom to make damn fool statements,” he replied in a post-retirement interview.

Nominated to the court by President Nixon, Burger himself was described by many who knew him as pompous, insecure, somewhat paranoid, overbearing, manipulative, distrusted by his colleagues and lacking in intellect.

The late Potter Stewart, a member of the Burger Court until he retired in 1981, likened Burger to a ship’s “show captain” - good at taking women to dinner but unable to steer.

Indeed, Gerald Gunther, a respected professor of constitutional law at Stanford University, once predicted that Burger would be seen by historians as “a well-meaning, genial-seeming fellow” who was more interested in the administrative and ceremonial side of the court than in its decision-making functions.

While Burger occupied the court’s center seat, the towering landmarks of the Warren Court - school desegregation, the one-person, onevote principle in elections, and Miranda warnings and other fair play requirements imposed on the police - remained intact.

In fact, the Burger Court expanded most of those principles.

It approved busing as a remedy for racial segregation in the public schools and applied principles of desegregation to cities in the North.

It permitted job and school preferences for racial minorities as a cure for past discrimination.

It expanded the right to privacy, gave women the unfettered right to choose abortion during the early stages of pregnancy, and gave women some constitutional protection against gender discrimination.

It insisted that the press could not be forced to publish replies to its articles and had a constitutional right to attend court proceedings in criminal cases.

It established the concept that advertising and other forms of “commercial speech” are entitled to some First Amendment protection.

And it helped define the bounds of presidential power, forcing President Nixon to turn over the crucial Watergate tapes to prosecutors and, in the Pentagon Papers case, denying him the authority to prevent the publication of classified information.