Burger, Warren E. (1907–1995)

To many observers, the appointment of Warren E. Burger to chief justice of the U.S. Supreme Court by President Richard Nixon signified a conservative counterresponse to the oft-characterized liberal judicial activism of the Court when it was led by Chief Justice Earl Warren. In light of the Warren court's record of supporting individual rights in criminal cases, school prayer, and desegregation, Nixon was committed to appointing a chief justice who supported judicial restraint, the belief that the [Page 135]Supreme Court should not leverage its power to influence economic and social policy development and that state legislatures and local governments were best suited to deal with such matters. To Nixon, Warren Burger, a former circuit court justice for the United States Court of Appeals for the District of Columbia, epitomized the prudent conservatism and conscientious judicial leadership style the Court lacked. Yet, as some observers suggest, Burger as chief justice will likely never be characterized as a figurehead in a new age of post-Warren legal reasoning.

Even as he sought administrative reform and office improvements for the Court, Burger believed he carried an obligation to represent or speak on behalf of the entire legal community. Modernizing the décor of the Supreme Court facilities, issuing calls for lawyer preparation reform, and advocating for greater professional benefits for federal judges were a few of his notable contributions in this regard. As to his legal impact, Burger faced the formidable task of uniting and introducing change to a court composed of competing judicial philosophies and political backgrounds. In fact, several justices during Burger's first term had served under Earl Warren and were well accustomed to socially progressive agendas. Although Burger preached restraint, the actual degree to which this attitude permeated the Court's position on education issues seems moderate when one accounts for the Burger court's rulings in school desegregation, the place and role of religion in schools, and rights of the disadvantaged.

Unscrupulous acts of evasion and avoidance of desegregation mandates extended many years beyond the Supreme Court's monumental decision in Brown v. Board of Education of Topeka (1954) and beyond the Warren era as well. Alexander v. Holmes County Board of Education in 1969 signified one of the first real opportunities for Burger to display his resolve and leadership. With the Fifth Circuit willing to oblige schools' further delay in the implementation of desegregation plans, the Court was forced to decide whether such postponement was allowable.

The Nixon administration firmly supported additional time for schools in the South to comply with the practical elements of the desegregation mandates. For Burger, the practicalities in creating a unitary system were daunting and complex, but not all his fellow justices echoed the same sentiment. Justice Hugo Black for one was willing to file a separate dissent unless the court sent a stern ultimatum that all schools be desegregated at once without delay. While it had become routine for desegregation cases to be ruled upon unanimously so it would not appear that the Court was divided, Justice Burger was faced with the real possibility of a split desegregation opinion.

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