The Law: Chief Justice in Mufti

The Chief Justice of the U.S. seemed to be breaking with some established judicial customs last week. In response to reporters’ questions in St. Paul, Warren Burger said he currently saw “no change” in search-and-seizure regulations or the so-called Miranda confession protections for those arrested; such observations were unusual because decisions in both areas are now pending before the Supreme Court. Responding to complaints that the court has been cutting down on the kinds of suits that can be filed, the Chief Justice cited recently expanded prisoners’ rights and the general increase in cases reaching the court, a statement that was something of a departure from the normal judicial stance of avoiding public debate with critics. Indeed the whole press conference was a departure—the first on-the-record session with the national press that the interview-shy Burger has held since he became Chief in 1969.

Shameless Taft. Burger had only agreed to the question-and-answer gathering to help publicize last week’s monumentally titled National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice—a meeting of 275 legal leaders to explore deficiencies in the system of justice. The irony in the decision to give his first press conference is that Burger, on the one hand, tends to carry his sense of dignity almost to the point of mediaphobia, while on the other hand he has energetically lectured and lobbied for legal reforms that he believes are needed. In the process, Burger has become the most active Chief Justice off the bench since William Howard Taft shamelessly hustled the White House and Congress in the 1920s for everything from judicial innovations to court nominees.

The St. Paul conference, for example, was largely a Burger project. The Chief Justice tirelessly appears in mufti at an array of events, from judicial conferences to American Bar Association meetings. He travels extensively (a nonsmoker, he once started a losing firefight by asking Amtrak to ban cigars on the Metroliner), sometimes going abroad, most recently as the guest of the Japanese government. “I’ve made the discovery that ours is not the only workable system,” he has observed wryly. He has covered most of Europe, though he found that in Spain and Portugal “they don’t like strangers poking around in their courts.” In England he even sat on cases—without rendering decisions.

Rhetorical Jog. The example of the British barrister system, which allows only a qualified group of lawyers to appear in court, underlies Burger’s campaign to require special training and certification of trial lawyers in the U.S. The Chief Justice has also been fighting for prison reform and to increase salaries of federal judges. (Critics claim he has even urged a resigning jurist or two to exaggerate his financial plight.) He has also done his rhetorical best to jog congressional creation of additional federal judgeships.

To help current overworked judges, Burger has mounted his most successful leadership effort. Four different organizations inspired or revivified by the Chief Justice* have helped bring such reforms as the installation of professional administrators in the larger federal courts and the practice of having each judge take a case from start to finish instead of having one judge handle, say, all arraignments or all pretrial hearings. Burger also lets it be known that he personally looks at each judge’s newly-required monthly report on the number of cases disposed of. Partly as a result of such changes, there has been a 34% increase since 1968 in the number of dispositions per judge.

The child of sturdy Minnesotans who both lived into their nineties, Burger, 68, is remarkably healthy despite his pace. His secretary reports that he averages 77 hours a week on the job, nearly a fourth of that in nonjudicial duties. He oversees the minutest details of high bench housekeeping, right down to final approval of every flower planted on court grounds. Academic observers continue to fault the quality of Burger’s opinions, and though he carries his share of the writing, he once admitted to a Court aide, “I have to take some of the easier ones because I’m so busy.”

Edward Devitt, chief judge of the Minnesota federal district court, points out that Burger’s activity “provides enormous support to us on the bench. He’s constantly working to get us the tools we need to get the job done.” Burger explains that he has thrown himself into his wide range of projects because “if I don’t do them, they won’t get done. It’s not that I have special qualifications or skills, but that I’m in a position to do something. For 15 years the activism around here was judicial. Now it’s time for activism in looking over the entire system, for thinking through the whole administration of justice.”

* The Federal Judicial Center, the National Center for State Courts, the Administrative Office of the U.S. Courts, the Institute for Court Management.