by Kenneth W Starr

Frequent tributes to Chief Justice Burger for his administrative leadership were capped by the unanimous resolution in August 1986 of the Conferences of Chief Justices of the several States declaring that he had done more to improve the administration of justice than all of his predecessors combined. This record, which included vital roles in the establishment of the National Center for State Courts, the Institute for Court Management, the State-Federal Councils and other institutions and projects, such as prison reform, was appropriately heralded by Congressman Robert Kastenmeier of Wisconsin and Senator Howell Heflin of Alabama in statements to the House of Representatives and the Senate.

The plaudits are especially pleasing to those of us who were first-hand witnesses to the energetic and innovative capacities of our Nation's thirteenth Chief Justice, who wrote as many signed opinions as any of his colleagues while carrying on an extraordinary range of programs and activities to improve the work of the courts. His distinguished record in the administration of justice, so befitting the concept of the title of the office described in the Judiciary Act of 1789, "Chief Justice of the United States," should not, however deflect us from a focus on the significant number of major opinions authored by Chief Justice Burger during his seventeen-year term.

The writing of opinions by any single Justice, including the Chief Justice, occurs against the backdrop of the entire Court's work. An examination of that workload is revealing, for in contrast to the first century and a half of the Supreme Court's history, the present-day docket consists overwhelmingly of the interpretation of statutes passed by Congress and the construction of the Constitution and its various amendments.

It is the latter task that constitutes the glamorous and most challenging work of the Court. It is the task that most directly affects the lives of the American people. It is also the task for which we largely remember our Chief Justices, perhaps best exemplified by John Marshall's Marbury v. Madison and Earl Warren's Brown v. Board of Education. After Chief Justice Marshall, however, no Chief Justice has been called upon to wrestle with so many nettlesome constitutional issues as the Nation's fifteenth Chief Justice.

John Marshall's landmark constitutional opinions laid the legal foundation for our government, particularly in establishing the primacy of judicial review and the powers of the central government over the several States. Chief Justice Burger followed in this tradition, fashioning opinions that confirmed the integrity of the basic pillar of our constitutional system: the principle of separation of powers. That doctrine, drawn by the Framers from Montesquieu, was, of course, at the heart of the debates in Philadelphia in 1787 Separation of powers emerged from those deliberations as the primary structural mechanism for preserving liberty. Thus, it is hardly surprising that the separation of powers principle under-girds many of Chief Justice Burger's greatest opinions.

Separation of powers concerns lay at the heart of Chief Justice Burger's most renowned dissent, penned in the landmark case of Bivens v. Six Unknown Federal Narcotics Agents, 402 U.S. 388, 411 (1971). Not only did the Chief Justice espouse there his classic critique of the Fourth Amendment exclusionary rule, he also set forth a principle basic to our system of government:

[Id. at 411-12.]

These same concerns are also evident in the Chief Justice's landmark opinion in United States v. Nixon. The Nixon case not only changed the course of contemporary history but, more pertinently for our purposes, recognized the core value of co-equality among the coordinate branches. Recalling John Marshall's opinion in United States v. Bur, the Chief Justice, speaking for a unanimous Court, applied the venerable principle that no one, no matter how high his station, is above the law The Chiefs opinion recognized, however, that the legitimate interests of both the Executive, protected by the Court's recognition of the bedrock principle of executive privilege, and the criminal justice system had to be weighed carefully.

The rigor of the Chief Justice's fidelity to separation-of-powers principles was displayed in his seminal opinion for the Court four years ago invalidating the legislative veto. Never before have so many statutes fallen in the wake of a single constitutional decision. INS v. Chadha, 461 U.S. 574 (1983), presumptively invalidated over 200 measures enacted by Congress over 50 years. The Chief Justice's opinion for the Court vindicated a principle both simple and fundamental to our constitutional system: For measures to be enacted into law, they must pass through two branches of the National Government, not remain within the exclusive province of the Article I branch. The practicalities and exigencies of government, particularly pressing in the modern administrative state, could not justify a departure from the framework ordained by the Framers, which included as an integral part of lawmaking the presentation of measures passed by a bicameral Congress to the President for his consideration and action.

Fittingly, the Chief Justice illustrated his assiduous concern for, to borrow T S. Elite's phrase, the "permanent things" of our constitutional structure–among them the separation of powers principle–on the final day of his final term. In the decision invalidating a critical provision of the Gramm-Rudman-Hollings Deficit Reduction Act, Bowsher v. Synar 106 5. Ct. 3181 (1986), the Court, speaking through the Chief Justice, determined that Congress had run afoul of a fundamental command in our system of separated powers: The Article I branch may play no direct role in the execution of the laws. Once again, the exigencies of the moment, no matter how insistent and urgent, could not justify compromising the structure of government crafted by the 55 delegates in Philadelphia.

In the great decisions vindicating our separation-of-powers system, we see an enduring characteristic of the Chief Justice as the principal custodian of our Constitution over the past seventeen years, one that has surfaced in his opinions in other areas. Specifically, Chief Justice Burger was faithfully wedded to the structure and text of the great document that had served the Nation so well since the Founding. He was a principled and fervent believer in the wisdom and truth contained in the document itself. He adhered closely to the teachings to be drawn from the Constitution's text, and rejected the view that it was properly the province of the Article III branch to propagate its own views under the guise of constitutional interpretation.

The Chief Justice displayed this fidelity to basic, textual principles early on in his tenure, particularly in First Amendment cases. For example, the guarantee of personal and family liberty embodied in the First Amendment was the focus of his opinion in Wisconsin v. Yoder 405 U.S. 205 (1972), upholding the liberty of a small religious minority to carry on their traditions free from state compulsion. The same principle, which circumscribes the power of government to intrude on protected freedoms, was furthered in his seemingly minor cases, such as the New Hampshire "Live Free or Die" decision, as well as in his better known opinions vindicating First Amendment freedoms.

In continually returning for guidance to the enduring text of the Constitution, the Chief Justice often had to grapple with clearly stated constitutional rights that conflicted. Reconciling the First Amendment grant of freedom of the press with the Fifth and Sixth Amendment rights to a fair trial before an impartial jury, for example, is one of the most vexing tasks that a conscientious judge must face. In such instances, the Chief Justice inevitably resorted to first principles. His opinions reflect an abhorrence of prior restraints, see, e.g., Organization for a Better Austin v. Keefe, 402 US. 417 (1971), even when they are employed to protect competing constitutional claims, see, e.g., Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). Indeed, Nebraska Press began a line of decisions authored by Chief Justice Burger, in which the Supreme Court protected press freedoms against weighty, competing claims of individuals accused of crime. The openness of criminal trials to the public, including the press, was sustained by the Chief Justice's opinion for the Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The powers of the States to punish the publication of information deemed to be highly sensitive or confidential were likewise circumscribed sharply by the Chief Justice's opinions for the Court in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), and Smith v. Daily Mail Publishing Co., 443 U.S. 97(1979). And a pivotal issue, the state-imposed right of access to the print media, was resolved unanimously in favor of the press in the Chief Justice's landmark opinion in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). There, the Chief Justice took careful note of the emergence of newspaper monopolies and other factors animating the Florida legislature to enact a mandatory access statute, but concluded by returning to basic principles of the Constitution:

This belief in first principles surfaced in other areas. The Chief was a vigorous defender of religious liberty, as reflected in his opinions upholding legislative chaplaincies, Marsh v. Chambers, 463 U.S. 783 (1983), and erection by a municipality of a crèche in a park owned by a nonprofit organization, Lynch v. Donnelly, 465 U.S. 668 (1984), and in his opinion striking down a state provision barring clergymen from serving as delegates to a state constitutional convention, McDaniel v. Paty, 435 U.S. 618 (1978). But at the same time he was sensitive to the strictures of the Establishment Clause and, indeed, was the principal architect of modern Establishment Clause jurisprudence with his seminal opinions in Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), and Lemon v. Kurtzman, 403 U.S. 602 (1971).

Consistent with his reverence for the text of the Constitution and his dependence on it to discern first principles, the Chief Justice refused to cheapen the basic liberties enshrined in that document and its amendments by reflexively bestowing constitutional protections in profligate fashion. To Chief Justice Burger, the Constitution was not value-free. On the contrary, basic human decency inhered in liberty. The Chief Justice stated as much in his leading opinion on obscenity, in which he spoke eloquently of "the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself" Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58 (1971). And in another leading obscenity decision, he invoked Chief Justice Warren's memorable observation that there is a right of the Nation and of the States to maintain a decent society. Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (dissenting opinion). These opinions reveal the Chief Justice's keen sense that ours is a system of ordered liberty, not libertinism.

Although solicitous of basic freedoms and aware of the importance of Article III courts in protecting basic freedoms, the Chief Justice declined to exalt the third Branch above the two coordinate Branches by virtue of a profound respect for the judgment of the politically accountable branches. Throughout his lengthy career as an Article III judge, he remained mindful of the constitutional and prudential limitations on judicial power that derive from a government of separated powers. He profoundly understood the inherent limitations of the unelected judiciary, intended by the Framers to be the "least dangerous" branch. Judges were not to run the country. A free people must be able to govern themselves, consistent with the constraints of law.

This principled humility, grounded in his comprehensive grasp of the judiciary's role in the National Government, can be seen in Chief Justice Burger's opinion in Fullilove v. Klutznick, 448 U.S. 448 (1980), upholding a Congressionally mandated minority set-aside program. Sensitive to the use of race as a permissible criterion for governmental line-drawing, evidenced by his positions in Bakke and Weber, the Chief Justice nonetheless concluded that the Court should permit this presumptively suspect activity because it represented the considered action of the political branches:

[Id. at 473.]

Consistent with his respect for Congress' approach to troublesome racial issues, Title VII of the landmark 1964 Civil Rights Act received a hospitable reception from the Court under Chief Justice Burger's leadership. His opinion for a unanimous Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), is a seminal case in the law of employment discrimination. There, the Court held that artificial and arbitrary barriers to employment cannot withstand Title VII scrutiny if such non-job-related devices discriminate against protected minorities. Thirteen years later, the Court spoke again, unanimously through the Chief Justice, in holding that Title VII reaches into the inner councils of law firms and applies to the selection of partners by a partnership. Hishon v. King & Spalding, 467 U.S. 69 (1984).

Chief Justice Burger's judicial stance on capital punishment most poignantly illustrates his belief in self-imposed cabining of judicial power. He refused to vote his sympathies, consistent with what Justice Jackson called "the counsels of self-restraint." (R. Jackson, The Struggle for Judicial Supremacy 321 (1941)). As an individual, he was openly skeptical of the deterrent effects of the death penalty, but, as the Nation's Chief Justice, he was convinced by the confluence of the text of the Constitution itself and the considered actions of numerous state legislatures and the Congress that courts could not legitimately tear asunder what the people through their elected representatives had seen fit to enact.

His stance by no means reduced to a posture of judicial enervation or mere rubber-stamping of the expressed will of the political branches. Chief Justice Burger expressed the point well in his opinion holding that broadcasters are not required to accept editorial advertisements:

Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103 (1973).

In the arena of race relations, Chief Justice Burger was called upon to address the issue of the permissible ambit of judicial authority in the context of vexing questions of statutory interpretation. The Chief Justice was at the center of that body of law. His opinion for the Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), sustained the broad equitable powers of federal judges to fashion efficacious tools to remedy unconstitutional discrimination. It also fell to the Chief Justice to remind the lower courts of their obligation, articulated firmly in Swann itself, to tailor the remedy narrowly to fit the specific violation, as the Court, speaking through the Chief Justice, did in overturning a sweeping, metropolitan-wide busing order in Milliken v. Bradley, 418 U.S. 717 (1974).

More broadly, concern for equal protection for all citizens was evidenced early on in Chief Justice Burger's tenure when he wrote, once again for a unanimous Court, the opinion invalidating a state statute that gave preference to men over women in the appointment of administrators of decedents' estates. Likewise, the Chief Justice's opinion for the Court in Bob Jones University v. United States, 461 U.S. 574 (1983), spoke eloquently of the law's commitment to equal justice:

The Chief Justice's willingness to confront the task of balancing the will of the people as expressed through elected representatives against the individual guarantees of the Constitution surface in his opinions on criminal procedure. These opinions also provide fitting reminders that as the Nation's highest judicial officer, the Chief Justice admirably protected the integrity of the criminal justice system. These opinions, however, do not form the most prominent feature of his jurisprudence, contradicting the wide perception held at the time of his nomination that the Chief Justice was a harbinger of sweeping change in the Court's criminal procedure jurisprudence. They are, nevertheless, memorable for the care with which they cabin the reach of the watershed decisions of the Warren Court. Illustrative of this development is Chief Justice Burger's opinion in Harris v. New York, 401 U.S. 222 (1971), where the Court circumscribed Miranda's reach and permitted the use of Miranda-barred statements for impeachment purposes. The Chief Justice's overarching concern for integrity in the justice system was aptly encapsulated by his closing observation in Harris:

[Id. at 226.] A Miranda violation would not excuse perjury, but neither would Miranda itself be overruled. Chief Justice Burger accepted, in the venerable tradition of Anglo-American law, and as successor to the stewardship of the Court, the legitimacy of decisions that had become part of the fabric of the law. Thus, while his disaffection for the exclusionary rule was well known, as reflected by his eloquent dissent in Bivens, the Chief Justice faithfully followed the demands of Fourth Amendment jurisprudence, as illustrated by his opinion for the Court in United States v. Chadwick, 433 U.S. 1(1977). Stability in the law obviously ranked high among his jurisprudential values, indicated by the Court's reaffirmation of Massiah v. United States, 377 U.S. 201 (1964), through the Chief Justice's opinion in United States v. Henry, 447 U.S. 264 (1980).

The Chief Justice's contribution to our law is thus not that he led a "revolution" or spearheaded a "counterrevolution." He presided with great dignity, wisdom, and grace for almost two decades of our Nation's life, and through the many thousands of cases that came before him, the fifteenth Chief Justice was unremittingly faithful to the basic principles embodied in the Constitution itself He was mindful throughout of the vital importance of the structure of government, which was itself the principal assurance given at the Founding that we would live as a free people. The legacy of Chief Justice Burger is one of fidelity to freedom under the Constitution, a system of ordered liberty, with careful preservation of the integrity and strength of representative institutions against the danger of excess and hubris of the branch least accountable to the people.