Warren Burger is not the only Supreme Court justice to face allegations that he acted as a confidant to a sitting president. But John D. Ehrlichman asserts that Burger received advice rather than gave it.
In modern times, several justices have admitted to, even boasted of, their relationships with presidents. Abe Fortas was close to Lyndon B. Johnson; Felix Frankfurter had a celebrated friendship with Franklin D. Roosevelt; William O. Douglas is known to have advised Roosevelt and John F. Kennedy.
While those justices saw no impropriety in maintaining their ties to the White House, each said they steadfastly drew the line at talking about cases pending before the court.
When Fortas appeared in the Senate in 1968 as Johnson's nominee to be chief justice, he told the Judiciary Committee he was "proud" to acknowledge that while sitting on the court he helped the president make "fantastically difficult" decisions about urban riots and the Vietnam War.
Fortas, whose nomination as chief justice was eventually withdrawn, told the senators he saw no conflict or appearance of impropriety in serving as an informal policy adviser.
"The president has done me the honor on some occasions to ask my help on a few critical matters having nothing whatever to do with a legal situation," Fortas testified. "Since I have been justice the president has never, directly or indirectly, proximately or remotely, talked to me about a matter before the court or that might come before the court."
The memoirs of other modern justices are replete with similar references to White House strategy sessions. Frankfurter's diaries describe at length his participation in White House foreign policy meetings, and in his autobiography he talks of his "love" for Roosevelt.
Douglas' autobiography also details, without apology, his extensive efforts outside the court in lobbying presidents and others on conservation of natural resources and on the war in Vietnam.
Despite those examples of intimacy, however, court historian Arthur S. Miller, a retired George Washington University law professor, said yesterday he could not recall "a single instance in which a president was accused of talking to a justice and trying to influence his decision on a pending case."
However, he said speculation and rumors that presidents have sought to influence court decisions "inevitably arise."
The closest any modern justice has come to conceding that he was the target of some presidential persuasion is found in former chief justice Earl Warren's autobiography, published posthumously in 1977.
Warren wrote that, a few months before the court rendered its landmark Brown v. Board of Education school desegregation decision in 1954, he was somewhat surprised to be invited by President Dwight D. Eisenhower to an intimate White House dinner. One of the other guests was John W. Davis, counsel for the states seeking to preserve school segregation. Warren gave the following account:
"During the dinner, the president went to considerable lengths to tell me what a great man Mr. Davis was. At the conclusion of the meal...we filed out of the dining room to another room where coffee and an after-dinner drink were served.
"The president...took me by the arm and, as we walked along, speaking of the southern states and the segregation cases, he said, 'These are not bad people...'
"Fortunately, by that time others had filed into the room, so I was not obliged to reply. Shortly thereafter, the Brown case was decided, and with it went our cordial relations."