Warren Burger's Pudding Years


Warren Burger, who died Sunday at 87, will probably be treated more respectfully in judicial history as the chief justice of the United States, his official title, than as "chief justice of the Supreme Court," as he was colloquially known. That is because the court under him during his 17-year tenure achieved only a few of the conservative victories expected of it; meanwhile, Mr. Burger was able to bring about a revolution in judicial management and professionalism, with new training and support institutions for judges and other personnel, that greatly benefited all courts.

Mr. Burger was named chief justice by Richard Nixon, less than a year after he was elected president in part because of his campaign promise to change the Supreme Court from liberal activism to conservative restraint. Later, the president named three more conservative justices, which seemed to set the stage for a dramatic turning away from the activist era of the "[Earl] Warren Court."

But it didn't happen. The court's philosophy was different, and it did whittle away some of the Warren court's liberalization of individual rights in criminal cases and business-related cases, among others. But it also was the court that produced constitutional and/or statutory interpretations that enhanced the rights of women, including the right to have an abortion, and of blacks, including the right to be bused to integrated schools and to "affirmative action" in certain hiring situations.

Why couldn't Mr. Burger undo more of what went before? For one thing, new issues not dealt with by his predecessor came along. Also, as law professor Herman Schwartz once put it in assessing the court under Chief Justice Burger, "with rare exceptions major changes on the Court are never made on a clean slate, but almost invariably against a background of precedent, tradition, and institutional constraints that limit or channel the changes." Most of Mr. Burger's critics were men and women of the left. But conservatives, as Mr. Burger often remarked, were also displeased by some of his court's decisions, Roe vs. Wade in particular. The most conservative critics of the court wanted more justices like William Rehnquist, who succeeded Mr. Burger as chief, and Justices Antonin Scalia and Clarence Thomas.

Professor Schwartz, invoking Churchill's phrase, thought the Burger Court was "a pudding without a theme." He also said that wasn't so bad. He added that if the Rehnquist-Scalia jurisprudence ever came to dominate the court (as it might after the next presidential election), liberals will become "very nostalgic for those pudding years."

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