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Warren Burger dies at 87 was chief justice 17 years

THE BALTIMORE SUN

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

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

President Clinton praised Chief Justice 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," Mr. Clinton said in a statement from Little Rock, Ark.

Although 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 Chief Justice 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 prevented illegally obtained evidence from being used at a trial.

Despite his persistent efforts, Chief Justice 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 established under his predecessor, Chief Justice Earl Warren.

Faced with colleagues whose views were more liberal than his, Chief Justice 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, Chief Justice Burger voted with the 7-2 majority in 1973 to strike down a Texas law that made abortion a crime and 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 a pregnant woman reached the third trimester.

Judge Burger was a conservative member of the influential U.S. Court of Appeals during the 1960s, the Supreme Court's most liberal period. In several speeches and articles at that time, he decried the liberals' willingness to elevate the rights of criminal defendants. He also fretted about the breakdown of law and order in 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," he said in one speech.

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

Mr. Nixon promised a shake-up of high court and a return to law and order if elected. In one his first moves after he took office, Mr. Nixon selected Judge Burger to fill the vacancy left on Chief Justice Warren's retirement 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 entitled, "The Burger Court: The Counterrevolution That Wasn't."

During his 17 years in the office, Chief Justice Burger served under four presidents and played a key, symbolic role in the Watergate scandal as the drama unfolded in the summer of 1974.

Facing impeachment and criminal investigation, President Nixon appealed to the court, urging it to block a subpoena demanding Oval Office tape recordings.

The embattled chief executive rested his hopes on Chief Justice Burger. But the chief justice spoke for a unanimous court, ruling that Mr. 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, Mr. Nixon finally yielded the tapes that demonstrated his role in leading the cover-up of the Watergate affair. Two weeks later, he resigned.

Chief Justice Burger 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 excelled in sports. He sold life insurance for six years while attending the University of Minnesota and the St. Paul College of Law at night.

He joined a Minneapolis law firm in 1931 and eight years later made his first foray into politics by managing the Minnesota gubernatorial campaign of a young Harold Stassen.

President Eisenhower named him to the U.S. Circuit Court of Appeals for the District of Columbia in 1956.

No one questioned that Chief Justice Burger was well-suited for his ceremonial role. He had flowing white hair, a sharp chin and baritone voice and took great pride in the dignity of his office.

But he had a rocky relationship with several of his independent-minded colleagues, who found him pompous and petty. Justice Potter Stewart once derided him as the "show captain" of the court, and William J. Brennan dismissed him as a "dummy." Even Chief Justice Burger's boyhood friend, Harry A. Blackmun, came to despise him, noting that he 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 Chief Justice Burger's reputation a further blow with countless stories that portrayed him as arrogant and officious.

But many others, including former clerks and court employees, said that these portrayals were unfair.

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