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Former Chief Justice Warren Burger Dies at 87 : Judiciary: Conservative Nixon appointee's court was surprisingly liberal. Clinton hails jurist's 'tireless service.'

June 26, 1995|DAVID G. SAVAGE | TIMES STAFF WRITER

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 Sunday. He was 87.

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

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

Though 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 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 required that illegally obtained evidence be excluded from a trial.

But despite his persistent efforts, 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 of the Earl Warren court.

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

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

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

Nixon promised a shake-up of the high court and a return to law and order if elected. In one of his first moves after he took office, Nixon selected Burger to fill the vacancy left by retiring Chief Justice Earl Warren 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 titled "The Burger Court: The Counter-Revolution That Wasn't."

During his 17 years as chief justice, Burger served under four presidents and he twice played a key role in the Watergate scandal as the drama unfolded in the summer of 1974.

Facing impeachment and criminal investigation, President Nixon appealed to the high court to block a subpoena demanding that he turn over disputed Oval Office tape recordings. The embattled chief executive rested his hopes on Burger, his first court nominee.

But the chief justice spoke for a unanimous court, ruling that 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, Nixon finally yielded the tapes that demonstrated his role in leading the cover-up of the Watergate affair. Two weeks later, he resigned.

Burger was attending a conference in the Netherlands when word came that Nixon would leave office the next day. Shortly afterward, Vice President Gerald R. Ford reached him on the phone.

"Mr. Chief Justice, I hate to interrupt your trip, but I would like it very much if you could be here for the swearing-in," Ford said.

Burger said he would gladly preside at the ceremony, even though he faced an all-night flight to Washington. "I've got to be there. And I want to be there," he told Ford.

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