Burger, Warren E.

Warren E. Burger (1907–1995) was the fifteenth chief justice of the U.S. Supreme Court. Appointed by President Richard Nixon, he served in that capacity from 1969 until his retirement in 1986. He attended the University of Minnesota and received a degree from Saint Paul College of Law (now William Mitchell College of Law). He practiced law for nearly a quarter of a century before ascending the bench of the U.S. Court of Appeals for the District of Columbia in 1956.

According to many commentators, such as Stuart Taylor (1986), the decisions by the conservative majority in the Burger Court are often contrasted, “almost reflexively,” with the Warren Court's liberal activism and expansion of the rights of criminal defendants' rights. According to one commentator, the Burger Court was “far slower to vindicate and expand civil liberties under the Fourth and Fifth Amendments than the Warren Court” (in Taylor, p. A20). In fact, Chief Justice Burger led a Court that constantly chipped away at Fourth Amendment protections as defined by earlier Court rulings.

A principal thrust of the Burger Court can be seen in its attitude toward the exclusionary rule, which required the exclusion of evidence obtained in a manner that violated the substantive provision of the Fourth Amendment. Early in his tenure as Chief Justice, Burger made his position [Page 139]regarding the exclusionary rule crystal clear. In Bivens v. Six Unknown Fed. Narcotics Agents (1971), he declared in dissent that

By the mid-1970s, the Burger Court had moved away from the interpretation of the exclusionary rule as a part of the substantive rights implied by the Fourth Amendment and instead defined its rationale in terms of deterrence. In an opinion in Stone v. Powell, written by Justice Lewis Powell, the Court held that “the policies behind the exclusionary rule are not absolute. Rather, they must be evaluated in light of competing policies.” Burger, in a concurring opinion, stated that

In his opinion, the Chief Justice placed the focus on the reliability of the evidence rather than the method by which it was obtained. Contrasting evidence excluded under the Fourth Amendment with a confession obtained in violation of the Fifth Amendment's prohibition of coerced confessions, he stated that