Warren E. Burger and the American Bar Association

by Justin A. Stanley

Definitive articles and books about Warren E. Burger and his role as Chief Justice will come at a later date when, with the passage of time, a better appraisal can be made of him and his place in history. Even so, it is appropriate at this time for his contemporaries to make some comments as he retires after seventeen years of service on the Court.

Those of us who have been privileged to work closely with him over the years in matters not involving the running of the Court or its opinions, have invariably been impressed with the extent of his interest in and his support of efforts to improve the administration of justice in both the state and federal courts. In many of these efforts he has been the leader or at least a prime catalyst.

In retrospect, what he has done should not seem surprising. At his confirmation in 1969 he said that the Chief Justice "has a very large responsibility to try to see that the judicial system functions more efficiently.... He cannot do it alone, of course... I would think it was the duty of the Chief Justice to use every one of . . . [the] tools [available] to make our system work better. And I would expect to devote every energy and every moment of the rest of my life to that end should I be confirmed."[1]

He has kept his word. In the process he has demonstrated his ability to get groups to act and change to be effected.

Warren E. Burger is a prodigious worker and a very practical man. When he became Chief Justice there was no Institute for Court Management,[2] there was no National Center for State Courts, there were no State-Federal Judicial Councils. These, and others, have come into being and prospered with his support and direction. He has supported and strengthened the Conference of Chief Justices, the Judicial Conference of the United States and the Federal Judicial Center, and he was a moving force in the creation of the State Justice Institute.

Faced with an unprecedented expansion of litigation, the Chief Justice has pressed for needed additional federal judges, he has supported attempts to increase judicial salaries and he has administered the expanded federal judicial system which has grown from approximately 340 district judgeships in 1969 to 575 in 1986 and from 97 circuit judges in 1969 to 168 in 1986.

It is probably fair to say that the relationship between state and federal judges was strained in 1969. Primarily as a result of efforts of the Chief Justice, working with the Conference of Chief Justices, the State-Federal Judicial Councils and the National Center for State Courts, among others, that relationship is much improved.

Illustrative of this are the remarks made by Vincent L. McKusick, Chief Justice of the Supreme Judicial Court of Maine on September 15, 1983 when Burger was presented with the Freedom Foundation's George Washington Award. Speaking for those who had recommended the Chief Justice for that honor, Chief Justice McKusick said:

Burger has sought to lighten the loads of the Supreme Court and the lower federal courts by making all reviews by the Supreme Court discretionary, by providing for a second level of circuit courts to handle certain appeals and by eliminating diversity jurisdiction. He has also asked Congress to require judicial impact statements to accompany legislation which creates additional burdens on the federal courts. Unfortunately, none of these has been adopted by Congress.

He realized, as he said at his confirmation hearing, that he could not do the job alone. Accordingly, in addition to seeking support from Congress and from certain interested federal and state entities, he turned for help to the American Bar Association. That Association was then, as it is now, the largest voluntary bar association in the United States and undoubtedly the one which possesses the most national influence. One of its stated purposes is "to promote . . . the administration of justice."[3] It has the same broad goals as the Chief Justice in improving the administration of justice, but it had not had a good working relationship with his predecessor, who had resigned from the Association. The fit, both for the new Chief Justice and for the Association, was good.

Establishing friendly communications at the highest level of the Association, the Chief Justice made it plain that he was always available to the President of the Association. The first with whom he worked was Bernard Segal, of Philadelphia, who was as anxious for reform as the Chief Justice and who turned out, over the years, to be a good friend. In some cases, incoming Presidents of the Association would meet with Burger and review their programs with him. Those sessions were intended to give information rather than to seek the blessing of the Chief Justice.

Both the Association and Burger recognized that there would be differences between them, and there were. For example, the Association opposed both the elimination of diversity jurisdiction and the creation of a National Court of Appeals. On the other hand, it supported the request for judicial impact statements.

To more than one ABA President, the Chief Justice gave assurance that, although he expected criticism with respect to some of the things he said and did, he would never take offense. There, too, he has kept his word. At one point, following Burger's suggestion that up to fifty percent of the lawyers appearing before the federal courts were incompetent and required special training, the Illinois State Bar Association introduced a motion in the House of Delegates of the ABA requesting the Chief Justice to "publicly repudiate" his statements. The motion failed on a voice vote,[4] and Burger, who had witnessed the debate, then sat down with the Illinois delegation in an attempt to restore understanding between them.

In May of 1977, the ABA held, at Columbia Law School in New York, the first national conference on alternative dispute resolution processes. It obviously came at one of the busiest times of the Court year. Nevertheless, because of his deep interest in the subject and his desire to support the Association in its efforts, Burger came to New York from Washington, sat through a morning session and addressed the conference at lunch. By doing so, he added substantially to the momentum of the movement.

In August 1969, Chief Justice Burger first addressed an annual meeting of the ABA. It was held in Dallas and the Chief Justice had a lot to say.

He urged improvement in the administration of the courts. He pointed out that two reasons for the delays in litigation were "the lack of up-to-date effective procedures and standards for administration or management, and the lack of trained managers."[5] At the time, the Senate was considering legislation to provide for administrators for the federal courts. Burger pointed out that "If the legislation were passed at once we could not begin to fill the positions."[6] Accordingly, he urged the ABA to take a leadership role in training administrators.

The Association responded affirmatively and in December, 1969 its board approved the creation of The Institute for Court Management.[7] The partnership had begun to function.

In August of 1970 at the annual meeting of the Association in St. Louis, the Chief Justice delivered his first State of the Judiciary Message to the Association. Although these messages may have seemed misnamed and were later given other titles, such as the 'Annual Report" in 1981 and the 'Annual Message on The Administration of Justice" in 1985, they were faithfully given each year. Often they were supplemented by other visits and other talks.

Invariably his messages brought suggestions, they gave recognition to the Bar for its good work and sometimes they contained sharp criticisms directed at the legal community. In all cases, however, the spirit was friendly and the tone was that of one partner engaged in a major and continuing joint undertaking speaking to the other partner.

At one ABA meeting a group of protesters was outside the building where the meeting was to be held. The protesters were urging that a case then pending before the Supreme Court be decided in the way they wanted it to be decided.

The Chief Justice was not disturbed. He talked to some of the protesters and asked them whether or not if a case involving their lives were before the Court they would like to have it decided on the basis of the size of and noise made by a protest group outside the Supreme Court building. They indicated a preference for the deliberative process.

One of the Chief Justice's favorite projects, and one which is certainly related to improvements in the administration of justice, is The Supreme Court Historical Society. It was founded in 1974 at the suggestion of the Chief Justice and it received much early support from its first President, Elizabeth Hughes Gossett, and her husband, William T Gossett. Mrs. Gossett was the daughter of Charles Evans Hughes and Mr. Gossett was the ninety-second President of the American Bar Association.

Having observed that there was a great need to preserve the history of the Court and that public funds for that purpose had not been forthcoming, the Chief Justice directed that the Society be established as a not-for-profit corporation with authority to solicit funds for its support, publish books and a significant Yearbook, acquire artifacts, hold meetings and otherwise encourage interest in the history of the Court.

The Society is doing increasingly important work and is flourishing. It has had the warm and ongoing support of leaders of the American Bar Association. It will undoubtedly serve as a monument to the Chief Justice and to Elizabeth Hughes Gossett.

On appropriate occasions the Chief Justice is offered honoraria for speaking engagements. Invariably he sees to it that those honoraria go either directly or indirectly to the Society, thus providing important support for its work.

One of the outstanding undertakings shared by the Chief Justice and the American Bar Association, along with the Conference of Chief Justices, was the Pound Revisited Conference held in St. Paul seventy years after the delivery there of Roscoe Pound's famous lecture: The Causes of Popular Dissatisfaction With the Administration of Justice.[8]

The idea was the Chief Justice's, but it was enthusiastically supported by ABA President Lawrence F. Walsh. The implementation was provided largely by the Association with the support of the Conference of Chief Justices. However, Burger had a part in every important decision from beginning to end, and he gave the opening lecture.

Academics, practicing lawyers, judges, sociologists and others gathered in St. Paul to consider broadly the system of justice, its strengths and its weaknesses. Their thoughtful seminal papers have been published by West Publishing Company in the Federal Rules Decision[9] and are thus preserved.

Burger's final appearance before the ABA as Chief Justice came this year in New York. He reiterated his opposition to advertising by lawyers, even to advertising that satisfied the constitutional requirements specified by the Court. He praised ABA efforts to address the problems of professionalism facing the Bar and he noted that its Commission on Professionalism had provided a good diagnosis. He urged the Bar to act on that diagnosis.

Thus, the Chief Justice ended as he began: intensely interested in improving the system of justice, looking to the future, and urging his partner of seventeen years, the American Bar Association, to take action.

His kind does not come along often. Interests of Chief Justices differ, their emphases differ. Perhaps that is as it should be. But he will be missed, and the task of the ABA will be more difficult without Warren E. Burger there to lend leadership, encouragement, and support.

Endnotes

1. Nomination Hearing Before The Senate Committee on The Judiciary, 91^st Congress, 1^st Sess., (1969).
2. Now merged into the National Center for State Courts.
3. ABA Constitution, Article 1, Sec. 12.
4. 102 Reports of the American Bar Association, 205-6, (1978).
5. Lincoln Law Review, 1, 2 (1969).
6. Id. at 4.
7. Proceedings of the ABA Board of Governors, February 19-20 (1970).
8. 40 American Law Review 729 (1906), 35 FRD, 273.
9. 70 Federal Rules Decisions, 70 et seq., (1976).