Warren Burger's 17 years as chief justice of the United States may be best remembered for the counterrevolution that many expected but that never came.
As successor to Earl Warren, whose judicial activism had restructured major areas of constitutional law and left the Supreme Court mired in controversy, Burger, 78, sought to apply conservative doctrines and remove the high court from some of the political debate. But when he announced his retirement yesterday, the court was still the center of partisan and ideological storms, in part because it remains something of a moderate fixture in this age of political conservatism.
But that is just one of the paradoxes of the tenure of the dignified, white-haired jurist who once injured himself at age 67 by falling off his bike.
Burger was appointed chief justice by Richard M. Nixon in 1969 because he was a "strict constructionist" of the Constitution. Five years later, Burger led a unanimous court in ruling that Nixon had no right to withhold the White House tapes whose disclosure forced Nixon to resign from the presidency.
Internal court documents and sources indicate there was heated debate about the language of that 1974 decision, but never a hint that Burger would seek to exempt the president from bearing the brunt of a hard-line interpretation of the requirement that every citizen must turn over evidence in a criminal investigation.
If this action disappointed his principal political patron, the overall record of the Burger court also fell far short of the hopes of conservatives when he was appointed. A book published on the 10th anniversary of his elevation was titled, "The Burger Court: The Counter-Revolution That Wasn't." And in the years during which Ronald Reagan has dominated the political landscape, the president's followers have been almost as frustrated by the Burger court as they have by Speaker Thomas P. (Tip) O'Neill's (D-Mass.) House.
Yesterday, Patrick McGuigan, the judiciary specialist at the conservative Free Congress Foundation, said, "He was a respectable and respected chief justice, but not at the top of my list. . . . I see him really as a transition figure from the activism of the Warren era to what I hope will be a more restrained and principled jurisprudence in the William Rehnquist years."
One of the most controversial and legally tenuous decisions of the Burger era was the 1973 abortion ruling that established a woman's right to terminate pregnancy and struck down restrictive state laws. Although Burger joined in the 7-to-2 majority, his three-paragraph concurrence indicated he did not think it would have the sweeping consequences predicted by the two dissenters. Just last week, he was in the four-justice minority on another abortion case reaffirming that 1973 decision, suggesting in his dissent that it was time to reexamine the logic of the original decision.
Burger achieved his greatest impact on Warren court doctrine in the area of criminal law -- a special interest of his ever since he was named to the U.S. Court of Appeals for the District of Columbia by Dwight D. Eisenhower. When Nixon elevated him, the White House took special note of a speech in which Burger had warned that if the government fails in its "basic duty" to protect lives, homes and property, "it is not redeemed by providing even the most perfect system for the protection of the rights of defendants in the criminal courts."
He has led a consistent effort to narrow the application of the Miranda rule, which holds that an arrested suspect has a right to have an attorney present during questioning by police. His purpose was to preserve the admissibility of evidence police obtained in ways the Warren court held infringed on defendants' rights. Still, Miranda was not overruled during the Burger years.
In other areas of law -- including civil rights, First Amendment press cases and church-state issues -- the Burger court (and, not infrequently, Burger himself) have reinforced Warren court doctrines instead of reversing them.
Ricki Seidman, an official of People for the American Way, a liberal group that has opposed many of Reagan's judicial appointees, said yesterday, "The Burger court plainly hasn't fulfilled the expectations the right wing had for it. . . . On many controversial areas, Burger has been a tempering force."
Some of Burger's defenders have argued that the chief justice's conservatism was never the sort suggested by Nixon's 1968 "law-and-order" campaign rhetoric. Because of Burger's adherence to the doctrine of stare decisis, the principle that the court is bound by its own previous decisions, the fundamental principles of many earlier Warren court decisions remained intact.
Part of the frustration that Burger experienced in trying to reshape the court stemmed from the continuing opposition of justices such as William J. Brennan Jr. and Thurgood Marshall, who were part of the activist majority under Warren. With them on the left, a group of centrist justices, notably Lewis Powell and the late Potter Stewart, often led and controlled the court.
But part of the problem also stemmed from the way Burger's own proud, sometimes vain, personality fed a pattern of personal feuding that has abated only in the last few years. Brennan privately called Burger "dummy" and Stewart complained once to his law clerks that the court had only "a show captain," not "a real captain."
Students of the judicial system pointed to two other landmarks of Burger's tenure that have drawn far less public attention and engendered far less political pressure. One was the 1983 decision striking down Congress' legislative veto authority -- a classic demonstration of the Supreme Court's power to settle disputes between the other two branches of government and thereby influence the basic political balance in the nation. This decision eliminated a wide variety of devices Congress had given itself to countermand presidential decisions, and it reaffirmed the original Constitution's insistence on separation of powers.
The other area was the almost-forgotten role of the chief justice as head of the Judicial Conference, the board of directors of the federal judiciary. Burger worked tirelessly to improve the organization and efficiency of the federal courts, and lobbied aggressively with Congress and the public for increases in personnel and budgets for all aspects of the judicial system -- including prison reform.
In the last few years, Burger has looked beyond these administrative issues and spoken in philosophical tones about the role -- and the limits -- of law.
"For some disputes," he said in a 1984 speech, "trials will be the only means, but for many claims, trials by the adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people."
Speaking of lawyers and judges, he said, "We tend to forget that we ought to be healers of conflicts."
Burger sought to be a healer, but the court he led is still the scene of conflicts that remain the focus of political passions and philosophical debates.