The late Chief Justice Warren Burger was committed to the rule of law and the moral authority of the Supreme Court, and he would have led the charge against contemporary attacks on the law and the judiciary, one of his former law clerks said Monday in a lecture before the Supreme Court Historical Society.
“It is beyond dispute that he would have rushed to the ramparts had he lived to see the concomitant attack on the rule of law and the courts that is now occurring,” John Sexton, the president emeritus of New York University and former dean of its law school, said in the courtroom where Burger presided from 1969 until 1986.
Sexton, who served Burger during the court’s October 1980 term, provided some inside stories of his work with the chief justice, as one might expect in such a lecture. But he wasn’t hesitant to suggest that Burger would be dismayed by the coarsening of the American political landscape, as well as by attacks on lawyers and the judiciary that include those from the current occupant of the White House.
Sexton, speaking as part of the historical society’s annual meeting, noted that some 20 years ago a Republican pollster advised candidates that it would be “impossible to go too far in demonizing lawyers.”
“Twenty years later, even the president attacks ‘so-called judges’ and calls our courts ‘political,’” Sexton said in reference to statements made by President Donald Trump.
“At his core, Chief Justice Burger believed in the institutions targeted by these attacks,” Sexton said. “He believed in an America based on law and forged by lawyers. For him, law was the principal means by which we’ve been able to knit one nation out of a people whose dominant characteristics have always been diversity.”
Sexton said there is a consensus among scholars that although Burger cared more than his predecessor, Chief Justice Earl Warren, about the state of the legal profession and the judiciary, he had numerous faults.
“When it comes to his oeuvre as a justice, [Burger] is criticized for lacking a judicial philosophy [and] he is lambasted for ambiguity in discussing cases at conference after argument,” Sexton said. “Indeed some commentators go so far as to say he miscounted his own votes so he could control the assignment of opinions. And finally, he is indicted personally as aloof, pompous and self-important.”
Sexton said he and other Burger clerks know of a “powerful counter-narrative.”
He recalled being hired despite having gone to work as a clerk for Burger’s longtime adversary — Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit — during Burger’s clerk selection process. (Sexton had started out working for Judge Harold Leventhal of the D.C. Circuit, who died during Sexton’s clerkship.)
Sexton was 40 when he became a Burger clerk, well above the typical age for the job. Burger always expressed concerns for his clerks’ health and family lives, and he once volunteered to make sure Sexton’s wife could get an appointment at the Mayo Clinic for a medical issue she faced.
Burger would dictate his “Thoughts While Shaving” to his secretary, offering the beginnings of a draft merits opinion. Clerks soon experienced the chief justice’s felt pen as he took it to their drafts with questions, comments and deletions.
Sexton recalled that he once drafted a 20-page proposed contribution to a Burger opinion in a case on the free exercise clause of the First Amendment. Sexton offered his “magnum opus” as a way to reconcile that clause once and for all with the amendment’s establishment clause.
Burger returned the submission with a felt-pen slash mark on every page, meaning it was not going into the opinion, Sexton said.
Sexton said he had plenty of disagreements with Burger that continued beyond his clerkship, including taking issue with the chief justice’s idea of creating a national court of appeals just below the Supreme Court to reduce the Supreme Court’s workload.
“I will not try to defend particular aspects of the chief justice’s work,” Sexton said, though he did point to Burger’s “signature moment” — the court’s unanimous 1974 decision, with an opinion written by Burger, in United States v. Nixon, requiring the president to turn over the Watergate tapes.
Burger “would be alarmed” by a society today that has “developed an allergy to the hard work of dealing with nuance and complexity” and become a “colosseum culture that reduces discourse to combat,” Sexton said.
Against that backdrop, Burger “would argue that the court—especially the court—must stand even stronger as a testament to the power of thought and reason,” the former clerk said.
“It will not be easy to find an antidote to the powerful forces at work,” Sexton said. “We all must go to the ramparts for this cause. It would surprise many that Chief Justice Burger would have led us there. It does not surprise me or the others who worked by his side.”