Bollinger reflects on passing of former Chief Justice Burger

by Rebecca Siegel | 6/27/95 5:00am

In 1972, Provost Lee Bollinger worked as one of four law clerks for former Supreme Court Chief Justice Warren Burger, who died Sunday of congestive heart failure at the age of 87.

"I think it is the passing of a particular moment of history as well as an individual," Bollinger said.

While Bollinger said Burger was well-intentioned, he also noted the paradoxical facets of some of Burger's actions.

Bollinger described Burger as "generous and kind" to law clerks but also as "a man who was filled with contradictions."

"[Burger] could be quite insensitive to interests of other justices or people -- but not intentionally so," he said.

Bollinger described a time when the Chief Justice moved his desk into the Supreme Court conference room. This act was seen as an intrusion, Bollinger said, given that Burger turned what was considered neutral space into something that was his.

"He took neutral territory and appropriated it to himself as Chief Justice," Bollinger said. "The Chief Justice is not supposed to run the institution, he is simply one of the nine justices."

Burger served 17 years as the 15th Chief Justice of the Supreme Court, the longest tenure this century. He was President Richard Nixon's first Supreme Court appointee.

After retiring in 1986, he worked as chairman of the Commission on the Bicentennial of the United States Constitution, an unpaid position.

"His expansive view of the Constitution and his tireless service will leave a lasting imprint on our court and our nation," Pres-ident Clinton said in a statement issued in Little Rock, Ark.

Following graduation from Columbia Law School, Boll-inger served as a law clerk for Burger for one year.

During that time, Bollinger was responsible for reading petitions of people seeking review, helping prepare the Justice for his oral arguments and helping to write opinions on decisions made.

"Being a Supreme Court law clerk is one of the best things that could happen to a recent law graduate so it was a tremendous experience for me," Bollinger said. "You are very closely involved with a judge or justice."

Following the legacy of Chief Justice Earl Warren, whom many viewed as a liberal, the public expected Burger's Court to differ greatly from his predecessor's.

"He was brought in and people thought he would mark a major reversal in constitutional law," Bollinger added.

Burger was thought of as conservative on the bench because he had little sympathy for criminal defendants or their asserted rights.

But Bollinger noted that, contrary to what people expected at the time, Burger often joined the liberal majority in Supreme Court decisions, as he did in Roe v. Wade.

The Supreme Court case Roe v. Wade, which reversed the illegality of abortion, was tried during Bollinger's clerkship for Burger.

"The Court under Burger made some of the most radical changes," Boll-inger said.

Some of Burger's other opinions also received liberal praise. He supported changes in busing to increase integration in public schools, expanded public access to the nation's courts and enhanced women's protections against sex discrimination.

In 1971, Burger also wrote for the court as it established a landmark in the area of religious freedom. The decision said a law or government practice is invalid if it has a religious purpose, if its primary effect advances or promotes religion or if it fosters excessive governmental entanglement with religion.

But later, Burger voiced his dissatisfaction with that three-part test.

"Many major first amendment cases which established protection of free speech and press were tried during this time," Bollinger said.

About his projects for improving the administration of justice, Burger once said, "I didn't initiate them because I loved them; it wasn't that kind of work. I initiated them because they were 30 or 40 years overdue."

Burger wrote the opinion that in 1974 forced Nixon to surrender White House tape recordings and papers for use as evidence in the trial of presidential aides accused of covering up the Watergate scandal.

This ruling was a major factor in Nixon's resignation, the man who had nominated him to the court.

Since 1986, Burger had performed no judicial duties. In recent years he suffered from recurring pulmonary problems. He was hospitalized several times with pneumonia.

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