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Scholars Assess Tenure of Retiring Chief Justice

June 18, 1986

Undated (AP) _ The Supreme Court under Chief Justice Warren Burger raised expectations of a judicial upheaval that never happened, several legal scholars said, and some rated Burger as only a mediocre jurist. But others praised Burger’s attention to the administration of the court and his efforts to ease its workload.

The 78-year-old Burger, appointed to the court by President Richard Nixon in 1969, submitted his resignation on Tuesday.

″I think many people expected the court to turn considerably to the right when Burger succeeded Warren (Chief Justice Earl Warren). It hasn’t, in my judgment,″ said Ralph Beaird, dean of the University of Georgia School of Law in Athens. ″In fact, in many ways it was still as much an activist a court as it was during the Warren years.″

Beaird cited the 1973 decision in Roe v. Wade, which legalized abortion, as an example of the court’s activism.

″He’s not going to go down in history as a distinguished craftsman,″ said John Hart Ely, dean of the Stanford University Law School. ″On the other hand, I think he sometimes did show a good instinct for compromise and accommodation, which I think is entirely appropriate of a chief justice.″

However, Ely said, the court lately appeared more divided.

″To my mind the most important thing about the Burger Court was the expected upheaval never materialized,″ said Vincent Blasi, professor at Columbia University law school and currently visiting professor at University of Michigan in Ann Arbor.

That view is reflected in a book to which Blasi contributed a chapter, ″The Burger Court: The Counter Revolution That Wasn’t,″ published in 1983.

″It’s not one of the great courts in history, but it’s been a good court mainly because of the strength of the moderates on the bench,″ Blasi said.

Burger’s tenure lacked a strong unifying theme, said Cass Sunstein, a University of Chicago law school professor who was a clerk for Justice Thurgood Marshall in 1979-80.

″The chief justice did not exercise strong, ideological leadership,″ Sunstein said. ″It may seem in retrospect, if Reagan gets several appointments, to have been a moderate court, where now it looks like a conservative court.″

Roe v. Wade stands as a notable exception to the court’s resistance to making substantial social changes, Sunstein said.

″It was certainly an exciting period. It was controversial,″ said Dean Jesse Choper of University of California at Berkeley’s Boalt Hall law school.

Choper noted that Burger wrote the unanimous opinion in 1974 that required Nixon to surrender the Watergate tapes to investigators.

Robert Kamenshine, professor of law at Vanderbilt University in Nashville, Tenn., said presidents have often expressed surprise, and sometimes regret, at the decisions of their appointees to the court, but not in Burger’s case.

″The Nixon appointees, of which Burger was one, came through on the issue that really was the one that concerned the president at that time, which was the criminal justice system,″ Kamenshine said. ″The Nixon nominees did deliver on that by taking a restrictive view on the rights of the criminal defendant.″

″There was more continuation between the Warren court and the Burger court than people expected,″ said Mark G. Yudof, dean of the University of Texas Law School in Austin. ″While Burger was more conservative, most of the Warren decisions are still in place.

″A second thing is that I do not think that the chief justice had the same coalition-building ability as Warren. ... With Burger, the splits were greater - he didn’t seem to be as adept at building those majorities.″

Yudof give Berger high marks for his administrative abilities.

″He focused attention on many important issues, some of which related directly to the work of the court - was it overburdened, and what steps should be taken to alleviate the work load.

″He also had a very great concern for the quality of the practicing bar. His suggestion that many trial lawyers were not adequately prepared by their education to represent clients in court was well taken,″ Yudof said.

″It’s rather surprising that the Burger court never emerged from the shadow of the Warren court,″ said Steven Shiffrin, professor of law at UCLA. ″It has been, overall, a solidly conservative court that hasn’t utterly abandoned everything that has been done or neglected any progressive change.″ ″Probably the most important thing they did was to set up barriers to campaign finance reform. Congress was concerned about wealth in the political process and passed a bill to try and limit the impact of that and the Burger court struck it down.″

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