Path to the Supreme Court
On the morning of June 23, 1969, in a special sitting of the Court, Earl Warren administered the oath of office to the man a President had chosen to undo his work. Richard Nixon sat in the courtroom watching the transfer; he had campaigned against the Court's direction, and Warren E. Burger, white-haired, deep-voiced, a law-and-order judge out of central casting by the press's telling, was the instrument of the promised correction. Fourteen years in, the scholarly verdict on the correction already fit in a book title, The Counter-Revolution That Wasn't. The revolution Burger actually led was in the machinery: how courts are run, how judges are trained, how the third branch manages itself. And the single opinion history will not let go of is the one in which Nixon's own Chief Justice, for a unanimous Court, ordered Nixon to hand over the tapes.
He was born in St. Paul on September 17, 1907, Constitution Day, the fourth of seven children of a railroad cargo inspector and sometime traveling salesman, and raised partly on the family's small truck farm at the edge of the city. At John A. Johnson High School he ran the student council and the school paper and played on the teams; a teacher arranged a scholarship to Princeton, and by the standard telling he turned it down because it was partial and the family needed him earning. So he sold life insurance for Mutual Life by day, took University of Minnesota extension classes at night, and finished at the St. Paul College of Law, magna cum laude, in 1931. A boy from the same grade school and Sunday school, fourteen months younger, stood as best man when Burger married Elvera Stromberg in 1933: Harry Blackmun (§98), the friend whose story is the other half of this one.
The practice was St. Paul, the politics were Republican, and both prospered. He made partner in a downtown firm, taught contracts at his own law school for years, organized Minnesota's first Young Republicans in 1934, and worked the conventions for Harold Stassen. At the 1952 convention, as Stassen's floor manager, he did the thing old delegates remembered: he 'sent word to the platform that Minnesota was switching its votes to Eisenhower,' and the stampede that followed helped clinch the nomination. Eisenhower's Justice Department collected him in 1953 as Assistant Attorney General for the Civil Division, where he earned a particular kind of fame in Peters v. Hobby (1955): the Solicitor General, as a matter of conscience, declined to sign the government's brief defending the loyalty-board dismissal, so Burger argued the case himself. The caption in the United States Reports still records who argued.
Eisenhower put him on the D.C. Circuit in 1956, and for thirteen years he was that court's loudest counter-voice: a critic of the new criminal-procedure rulings, a skeptic of the insanity-defense liberalization his colleague David Bazelon championed, the two men's disagreement hardening into one of the bench's famous feuds. A 1967 speech comparing American criminal justice unfavorably with Scandinavia's, reprinted in U.S. News & World Report, reached Richard Nixon and, by the standard account, made the shortlist for him. The timing did the rest. Earl Warren had offered his retirement in 1968 'effective at such a time as a successor is qualified'; the nomination of Abe Fortas (§95) to succeed him collapsed, Warren stayed a final term, and the new President inherited the chair to fill. Nixon announced Burger on May 21, 1969, and nineteen days later the Senate confirmed him, 74 to 3.
On the Supreme Court
The counter-revolution misfired almost immediately, and some of the misfires were in his own hand. Swann v. Charlotte-Mecklenburg (1971) upheld busing unanimously, Burger writing that a desegregation remedy 'may be administratively awkward, inconvenient, and even bizarre in some situations,' but that awkwardness 'cannot be avoided in the interim period.' Reed v. Reed (1971), his opinion for a unanimous Court, struck down a law preferring men as estate administrators, the first statute ever voided for sex discrimination under the Equal Protection Clause. Lemon v. Kurtzman (1971) gave the Establishment Clause the three-part test that carried his case's name for half a century, forbidding 'an excessive government entanglement with religion.' He was one of the seven in Roe. Where he did dissent, the Court went on without him: in the Pentagon Papers case (1971) he objected that the cases had 'been conducted in unseemly haste,' and in Furman v. Georgia (1972) he insisted that 'legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'
The case that keeps his name in the constitutional canon arrived in the summer of 1974. United States v. Nixon was argued on July 8 and decided sixteen days later, Burger writing for a Court unanimous at eight, Rehnquist (§100) having recused: 'Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances'; the 'generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.' Nixon resigned sixteen days after that. How the opinion got written is a contested story: The Brethren reported, from inside the building, that his colleagues carved up a weak first draft and rewrote it section by section, while Burger maintained the justices had been 'in accord on every major point' from the start, the differences 'semantics and detail, not substance.' The drafts are argued about; the judgment was joined by every justice who sat, and it held.
The later landmarks ran to structure. Milliken v. Bradley (1974) stopped busing at the city line, Burger writing that the notion that district lines 'may be casually ignored or treated as a mere administrative convenience' runs 'contrary to the history of public education in our country.' INS v. Chadha (1983) struck down the legislative veto in the sentence he is most quoted for: 'the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.' Bowsher v. Synar (1986), among his last opinions, held that 'Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.' A Chief who had disappointed the movement that installed him proved, on the separation of powers, exactly the formalist they had ordered.
But his deepest mark is not in the reports at all. Burger ran the judiciary the way no Chief had: he called the conference at Williamsburg that produced the National Center for State Courts in 1971, pushed the Institute for Court Management into being, built the Federal Judicial Center from an obscure office into the branch's research arm, presided over thirty-four meetings of the Judicial Conference, and founded the Supreme Court Historical Society in 1974. He scolded the bar for its trial work, telling an audience, in TIME's contemporaneous account, that 'perhaps as many as one-half of all lawyers who appear in American courts are incompetent,' and that too many courtrooms had 'Piper Cub' advocates at the controls of 'Boeing 747' litigation. The manner drew mockery, and colleagues sometimes bristled at the pomp, but the machinery he built is still running. The man himself was homelier than the mane: a gardener, a wine fancier, an antiques collector, and a sculptor good enough that his bas-relief of Chief Justice Marshall hangs in the Court's own dining room.
The Supreme Court Database files him with his fellow Nixon appointees, and adds a ninth answer to this program's oldest question. Across 2,692 coded votes his liberal share was 34.2 percent against a docket baseline of 51.1, third most conservative of the modern thirty-three; his dissent rate of 13.7 percent ran well below his colleagues' 19.5 on the same cases, the mark of a Chief who stayed in the majority, where the assignment power lives. His gap narrowed from 20.0 points below baseline early to 15.7 late, and the decomposition repeats the Rehnquist pattern exactly: his own movement, 2.3 points, fails significance, while the bench's 6.7-point shift toward him is real. That makes a pattern across three of Nixon's four appointees: Burger, Powell (§99), and Rehnquist held still, and the Court moved right to meet them. The fourth, Blackmun, moved farther than anyone ever measured, and is the previous chapter. One agreement number is a small poem: his closest colleague in divided cases was not his oldest friend but Sandra Day O'Connor (§102), at 80.9 percent; his furthest, at 20.4, was William O. Douglas (§79).
Reagan had made him chairman of the Commission on the Bicentennial of the Constitution in 1985, and on June 17, 1986, Burger announced his retirement to run it full-time, in the same appearance that sent Rehnquist to the center chair and Antonin Scalia (§103) to the Court. His stated arithmetic was pure Burger: the celebration 'got a late start,' it was 'vastly underfinanced,' and 'I already have two full-time jobs ... it just isn't feasible to have three full-time jobs.' Asked whether health played a part: 'Never felt better in my life.' He retired formally on September 26, 1986, ran the bicentennial through its 1987 celebration and beyond, and kept an office and an opinion on everything until the end.
He died in Washington of congestive heart failure on June 25, 1995, at eighty-seven, a year after Elvera. His body lay in repose in the Great Hall of the Court he had refurbished and celebrated, on the catafalque the Senate voted to send across from the Capitol, and he was buried at Arlington. Sandra Day O'Connor, whom he had befriended on a houseboat trip years before her nomination, gave a eulogy that dwelt on the builder: the Chief Justice, he had believed, 'should make our system work better.' The previous chapter of this program began with the two words his oldest friend wrote in a journal that same day. This one can end with the arithmetic St. Paul gave him: the boy born on the Constitution's 120th birthday grew up to preside over its 200th.
The Voting Record
How Burger voted in the 2,798 cases the Supreme Court Database records from the 1969 term through the 1985 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Burger voted with O'Connor more than with anyone else — the same side of the judgment in 80.9% of their 503 divided cases — and with Douglas least, at 20.4%. See the matrices →Compared against the 10 colleagues Burger shared at least 300 divided cases with.
And Burger ended 4.4 points more liberal relative to those colleagues than at the start — the 20th-largest shift of the 27 justices with a long enough record to measure. See who changed →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
United States v. Nixon
1974 · 8–0Holding · Executive privilege is not absolute and must yield to the need for evidence in a criminal trial; the President must produce the subpoenaed Watergate tapes.
Role · Burger wrote for a unanimous Court (Rehnquist §100 recused).
Reaffirmed that not even the President is above the law's demand for evidence; it forced Nixon's resignation.
Read the opinion →Swann v. Charlotte-Mecklenburg Board of Education
1971 · 9–0Holding · Federal courts may order busing and other broad remedies to dismantle stubbornly segregated school systems.
Role · Burger wrote for a unanimous Court.
Authorized the busing era of school desegregation, among the most consequential and contested remedies in civil-rights law.
Read the opinion →Lemon v. Kurtzman
1971Holding · State aid to religious schools is unconstitutional unless it has a secular purpose, does not principally advance religion, and avoids 'excessive entanglement' with religion.
Role · Burger wrote for the Court, creating the three-part 'Lemon test.'
Governed Establishment Clause law for half a century before the Court abandoned it in 2022.
Read the opinion →Go Deeper
Warren Burger was Chief Justice of the United States for seventeen years — the longest tenure of the twentieth century — yet he remains the modern Court's least-understood leader, in part because no full-scale biography has ever been finished; his papers went to the College of William & Mary under a long restriction, and the definitive life is, as one headline put it, decades in the making and still not done. Appointed by Richard Nixon in 1969 to rein in the Warren Court, Burger instead presided over a Court that entrenched much of it and produced landmarks he did not always control — Roe v. Wade, busing, the death-penalty cases — while writing for a unanimous Court in United States v. Nixon, the decision that forced the president who named him to surrender the tapes and resign. A tireless administrator who modernized court management and judicial education, he was widely seen as a weak intellectual helmsman whose conferences his colleagues maneuvered around. Because no single biography stands as the starting point, begin with Graetz and Greenhouse on the Court he led, then read the Nixon tapes case in his own hand.
The Bookshelf
The best single book for understanding the Burger years, and the natural entry point given the absence of a finished Burger biography. Graetz and Greenhouse argue against the conventional dismissal of the Burger Court as a 'counter-revolution that wasn't': in campaign finance, business regulation, affirmative action, criminal procedure, and access to the courts, they show a tribunal that quietly began the long rightward turn later completed by the Rehnquist and Roberts Courts. Lucid and revisionist, it reframes a Court too often remembered only for Roe. Simon & Schuster.
The influential verdict on the Burger Court — a Yale symposium arguing that the Court expected to undo the Warren revolution mostly consolidated it instead. The framing scholars still use, and the title that named the debate. Yale University Press.
A companion assessment from the other direction — Herman Schwartz's collection weighing the Burger Court's real retreats on rights across seventeen years. Viking.
The famous — and famously controversial — behind-the-scenes account of the early Burger Court, built from clerk interviews and leaked documents. It portrays Burger as vain and maladroit, outmaneuvered by abler colleagues, and it remains the book that shaped the popular image of his chief justiceship. Read it critically: its sourcing is anonymous, its portraits are unflattering, and scholars have long debated its fairness. But as the first great work of Supreme Court reportage, and for its picture of the Court's internal politics, it is indispensable. Simon & Schuster.
Burger's finest hour and one of the great assertions of judicial authority in American history. Writing for a unanimous Court (three Nixon appointees among them), Burger rejected the president's claim of an absolute executive privilege to withhold the Watergate tapes, holding that the need for evidence in a criminal trial outweighed a generalized interest in confidentiality. Sixteen days later Nixon resigned. The opinion is a model of institutional prudence — it acknowledged privilege while denying its absoluteness — and it settled that not even a president is above the law's demand for evidence. Read it as the case that a Chief Justice built his reputation upon.
Burger's most enduring — and most criticized — doctrinal legacy. Striking down state aid to religious schools, he distilled Establishment Clause analysis into the three-part 'Lemon test': a law must have a secular purpose, must not principally advance or inhibit religion, and must avoid 'excessive government entanglement' with religion. For half a century the test governed church-state law even as justices attacked it from every direction; the Court finally abandoned it in Kennedy v. Bremerton School District (2022). Read it as a window into how one opinion can dominate — and then lose — an entire field of constitutional law.
Schwartz's second Burger Court volume — a different set of contributors assessing the era a decade after The Burger Years on this shelf, with the counter-revolution question posed directly in the title. Often confused with the 1987 collection; it's a separate book, and the more considered of the two. Oxford University Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Graetz and Greenhouse, The Burger Court — for the revisionist case that his Court mattered more than remembered
- 2.United States v. Nixon — for his one indisputably great opinion, in his own hand
- 3.Lemon v. Kurtzman — for the test that ruled — and then fell from — church-state law
- 4.Woodward and Armstrong, The Brethren — for the contested inside portrait of how he led (read critically)
Where the Papers Are Kept
Burger left his personal and judicial papers to the College of William & Mary, where he served as chancellor, under one of the longest access restrictions imposed by any justice — a decision that has frustrated biographers and is a large part of why no definitive life yet exists. As the restrictions ease, the collection at the Special Collections Research Center will become the essential archive for reconstructing his chief justiceship and its administrative reforms. Visit →
Ideas for Further Research
- The revisionist Burger Court. For decades the standard verdict was that Nixon's Court failed to undo the Warren revolution — 'the counter-revolution that wasn't.' Graetz and Greenhouse dissent, tracing to the Burger years the beginnings of the modern conservative turn on money in politics, business, and access to the courts. Test the two accounts against the decisions themselves, and ask whether Burger's Court is better read as a continuation of the 1960s or as the quiet start of their reversal.
- The administrator as Chief Justice. Burger poured enormous energy into court management — founding the National Center for State Courts and the Institute for Court Management, championing judicial education, and lobbying Congress on the judiciary's business — while his colleagues judged him a poor leader of the Court's actual work. Weigh the two Burgers against each other, and ask what the job of Chief Justice really requires: doctrinal leadership, institutional stewardship, or both.
- The sealed papers and the missing biography. Almost alone among modern justices, Burger has no finished full-length biography, and his restricted archive is a principal reason. Study how a justice's control over his own papers shapes — and can suppress — historical memory, comparing Burger's long seal with the immediate opening of Thurgood Marshall's and Harry Blackmun's papers and the different histories that resulted. Seat lineage: Earl Warren §88 → Warren Burger → William Rehnquist §100 (as Chief Justice).