WARREN BURGER'S finest moment as chief justice probably came in 1983, when he wrote an opinion striking down the legislative veto. The opinion was a monument to the constitutional doctrine of separation of powers. It was well-reasoned, well-researched, carefully written and will stand as a major statement about the way our government was designed to function.
Burger was most comfortable in this role. He relished old-fashioned constitutional law, when the Supreme Court resolved disputes between the other branches of government over what the Constitution means. That was the unquestioned province of the court, the one John Marshall spoke of in his 1803 decision, Marbury v. Madison.
But in another, more modern role, Burger appeared less comfortable. He seemed ill at ease when the court was in the trenches of public policy, acting as overseer of the police or state legislatures or individual citizens.
He went along with this role (siding with the majority, for example, in the 1973 decision legalizing abortion) but he chafed at it and ultimately began to fight it. He would lash out angrily at his colleagues for getting in the way of legislatures, of the Congress, of the judges in the lower courts. That was not what the Supreme Court was originally supposed to do. Marshall would have had a fit.
The problem for Warren Burger was that this latter role, the messy one, has pre-occupied the court for the past 30 years -- and certainly for the 17 years of his tenure.
As a result, he never seemed quite at home. He seemed, indeed, uncomfortable with his times.
The symptoms of Burger's anti-modernism showed even more graphically outside the court. Consider his attitude toward one of the facts of life of modern law: lawyer advertising. The court, including Burger, accepted lawyer advertising, and ruled that the bar must allow it because it is a form of speech that is protected by the First Amendment. But from the moment advertising began, Burger railed against it. It was undignified, he said over and over, for lawyers to be selling themselves like commodities, like cosmetics. It lacked decorum.
The legal profession too, it seemed, had gotten messy.
Consider also Burger's endless battles with news media. He would leave an elevator and inexplicably engage a camera crew in a near-wrestling match. He refused to allow tape machines to record oral arguments at the court.
As a result, an amusing exercise for court-watchers was to compare "verbatim" quotations from oral arguments as reported in various newspapers: They were never precisely the same.
Cameras in the court were totally out of the question. They would show only parts of the arguments, Burger said once. He meant that they wouldn't show the court the way he wanted it shown.
At the same time, in an effort to look good on television, Burger ordered his eyeglasses sent to New York to be treated for glare by the same man who treated Walter Cronkite's glasses.
Most of Washington came to terms with the media long ago, including some of his fellow justices. Burger never did.
It isn't easy for reporters to write totally objectively about Warren Burger. He fostered an atmosphere of secrecy around the court that left some employes terrified of being caught chatting with us. He barred reporters from the clerks' office and made sure that when reporters visited someone in the court building they were watched, escorted from place to place, and handed off from one receptionist or guard to another.
He talked to reporters, but only on his terms and only on a subject of his choosing, which was usually a long anecdote about the Founding Fathers or a story about a recent trip of his to England or Sweden. Often, when he had something to say, he called publishers instead of reporters.
He would nevertheless complain to others that reporters didn't understand him, and didn't understand what he was trying to do. Reporters would pick up the complaints through the court grapevine -- never from Burger himself.
It is difficult to write in an unkindly way about a man who has spent almost all his adult life in public service, a man who any time in the last 30 years could have left the bench and made a fortune, but who instead worked as hard as he knew how for the betterment of the judicial system.
It is especially difficult to write about Burger because he is in so many ways a contradiction -- at once gracious and petty, unselfish and self-serving, arrogant and insecure, politically shrewd yet very stupid and heavy-handed at dealing with people.
In person, he could be warm and charming, or awkward and difficult. On one occasion when an important senator paid a call on the chief, the senator called ahead to say he would be accompanied by his chief counsel. When the senator arrived, he was accompanied by his 5 foot 2, eight-month-pregnant aide. "My, my," blurted the chief justice, "I was expecting someone, well, uh, bigger."
On the other hand, most of Burger's law clerks adored him and spoke of him with genuine warmth. One clerk recalls how one day Burger decided to eat in the cafeteria, and after a few moments found himself posing for pictures with tourists and their children.
"He seemed entirely comfortable," reported the clerk, "just like a politician, even though he never got his lunch."
Cathy Douglas, the widow of Justice William O. Douglas, also reports Burger's unfailing kindness to her husband during his long illness. The chief justice would show up at the Douglas' house "with a bottle of wine to keep Bill company or just to visit," she said, adding: "He couldn't have been more thoughtful."
And yet there was something about Burger that made his fellow justices want to prick his balloon. Even the vastly dignified Justice John Harlan used a four-letter expletive in announcing a decision in a free-speech case, and the reason he did it was that Burger had told him not to.
Other justices took their disenchantment with Burger much further. Some of the late Justice Potter Stewart's friends believe one of the reasons he decided to retire was that as one friend put it, "he just couldn't stand Burger anymore."
Burger drove his colleagues bonkers with tardy responses to their opinions. At one point Justice Byron White, on learning at conference that one of his opinions was still "being processed," returned to his chambers and railed: "You know what that means; it means he hasn't read it yet."
Fellow justices also were amazed at what they called Burger's "convenient memory." They claimed that Burger recalled events in a way he wished they had happened, but a way that bore no relation to reality.
When Judge Griffin Bell decided to step down from the federal bench, Burger told all who would listen that Bell was leaving because of the low salary.
"Nonsense," said Bell. "I don't know why the chief keeps saying that. I told him it wasn't true. I'm bored."
In a more public arena, the chief justice told a television interviewer in the early 1970s that the Pentagon Papers case had been decided by a substantially unanimous court. No matter that he had been one of three dissenters.
But nothing so annoyed the other justices as the way Burger handled the chief's traditional function of assigning opinions. Normally, the chief decides which justice will write what opinion, but only if he is in the majority. Other justices say that on many occasions Burger voted with the majority, assigned the opinion to the person he thought would write the narrowest decision, and then switched to the dissenting side at the end. Some justices called it the "Burger bait-and-switch."
Then too, some justices charge that Burger often "passed" instead of voting, in order to hold onto the assignment function.
It is hard to understand how a person of his political acumen could so consistently alienate colleagues on the bench. His old friend Harry Blackmun should have been a great personal ally on the court. But, according to friends of both men, Burger expected too much. He expected total fealty and failed to understand that Blackmun, a man who takes enormous pride in his personal independence, would be greatly offended by being treated like some kind of second banana.
The image ingrained in one law clerk's mind is of the chief and Blackmun sitting side-by-side in a steam box, with Burger haranguing Blackmun about some vote Blackmun had cast. In the end, it was Burger who turned Blackmun inexorably away, it was Burger who insured that Blackmun would go back to his moderate judicial roots, and it was Burger who not only lost a friend, but gained his enmity.
Indeed, there is hardly a justice on the court who has not felt the sting of Burger's wrath. And remember, these are judges who are supposed to be equals and don't like being pushed around.
To hear the justices and their law clerks tell it, Burger sometimes used his assignment power as a way to punish those who voted against him. They portray Burger as a man who would grab the sexy, near-unanimous opinions for himself, leave the dinky ones to justices in disfavor. Justice Lewis Powell at one time cast a critical fifth vote in an emotional criminal case. Burger leaned hard to swing Powell, but failed. After enduring weeks of pressure, Powell told another justice: "I'm resigned to writing nothing but Indian affairs cases for the rest of my life."
This punitive assignment style contrasted with the reputed style of Chief Justice Earl Warren, who undertook many of the less glorious cases himself, and was careful to pass around the glory to others.
Some justices also say that Burger was never willing to write the closely divided, unpopular decisions -- the ones where the political heat would be inevitable.
Chief justices are not created equal, nor do they do their jobs in the same way. Chief Justice Warren Burger broke the mold in the way he headed the Third Branch. Until the Burger era, chief justices focused most of their attention on the judging part of their jobs; they either delegated or shirked their huge administrative duties. But Burger instead became perhaps a great administrator, and a not-so-great judge.
When he took over as chief justice 17 years ago, the Supreme Court had difficulty getting a copying machine in the clerk's office. Over the years, Burger campaigned tirelessly to raise the public conciousness about the federal courts, as well as of the state courts.
He made great strides in bringing the courts up to date, in getting decent pay for judges, getting hundreds of judicial slots added, providing education programs for judges, promoting alternative dispute resolution programs, and streamlining many federal court procedures.
So total was Burger's absorption with his administrative duties that he even undertook the redecoration of the Supreme Court cafeteria and personally helped choose the glassware and china.
Sometimes, in his tireless efforts on behalf of the judiciary, he walked with heavy feet, at one point attempting to persuade a senator so ferociously that the senator went public, and Burger ended up looking like he was engaging in improper lobbying.
Burger's former law clerks defend him as a man who just tried to do what was right.
"He just tried to decide each case, and keep five votes for a majority," said one clerk. "And on the rare occasion when he did manipulate the process, he did it for the best of reasons, because he was trying to come out with the best opinion in the public interest."
"When you look at the 17 years he served as chief justice," the clerk added, "he kept most of society's problems truly in balance. The nation is not at each others' throats."
Another clerk, to a more liberal justice, also took a benign view.
"The best you can say about Burger," said this clerk, "is that he remained loyal to himself, to his own ideals about the law, and yet he didn't take the court on any sharp turns. He was able to modify the Warren Court's decisions in a way that the country accepted, and he wanted, and that did not tear at the fabric of the court as an institution."
It was nevertheless an awkward 17 years for Warren Earl Burger, and often for those around him.
And perhaps it is not so hard to understand why this 19th-century man, out of synch with his time and many of his colleagues, would leave one of the most prestigious jobs in the world to run a worthy -- but, compared to the court itself -- small-potatoes enterprise: the Commission on the Bicentennial of the Constitution.
The chief justice now seems to want, more than anything else, to be identified with this celebration of the founding of our legal system. For some months Burger has devoted himself to the celebration of the event, almost hurling himself at it. He has traveled the country pleading for attention for the bicentennial, for money to finance it, for someone to notice, for someone to remember the way it was.
Nina Totenberg covers the Supreme Court for National Public Radio. Fred Barbash, an editor of The Washington Post, covered the court for The Post from 1979 to 1985.