Ripple, Kenneth

English

For five years, I had the privilege of working by Warren Burger\u27s side; for a quarter of a century, he was a mentor and a friend. Together, we saw the tragedy of Watergate, the resulting tapes case, and the possible impeachment of a President. Together, we walked Washington, ate together, shopped together, and spoke of every possible subject. This past June, I stood beside him for the last time as he lay in state in the Great Hall of the Supreme Court of the United States

Ripple, Kenneth F.

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Notre Dame Law SchoolNDLScholarshipJournal Articles Publications1995In Memoriam: Warren E. BurgerKenneth RippleNotre Dame Law School, kripple@nd.eduFollow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarshipThis Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles byan authorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationKenneth Ripple, In Memoriam: Warren E. Burger, 109 Harv. L. Rev. 5 (1995-1996).Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/497WARREN E. BURGERone could. We saw the wine connoisseur, the chef (whose bean soupand orange marmalade were nationally known - at least among hislaw clerks), the artist, the sculptor, the naturist (who delighted that thesame birds that nested in his holly tree on Rochester Street found theirway to his new home on Wakefield), the antique buff, the humorist,and the political observer. We saw much more that, because of hisOffice, was regrettably hard for others to see. And as we watched, wecaught his contagious enthusiasm for life.In a word, if only briefly, we who had the privilege of serving theChief Justice were able to see the law - and life - through the eyesof an elegant, graceful patriot. And what an inspirational perspectiveit was! He has now passed this life. But there is no doubt that helives on through the institutions he shaped and so very much cher-ished, and through the countless lives he touched. A richer legacythan his, none of us could hope for. If ever there was a life to becelebrated, then his.Kenneth F. Ripple*It has happened on only fourteen other occasions in the history ofthe Republic. The Country has laid to rest a Chief Justice of theUnited States.The affairs of Washington paused, or at least slowed down, longenough to observe the milestone with respectful but restrained formal-ity. Washington does not expend a great deal of time or energy inreflecting on the contributions of those who once were at the heart ofthe process of governing. With the exception of our presidents, mostpublic figures leave the scene and are soon forgotten as the tide of newissues and new faces erases much of what occurred on their watch. AChief Justice presents, moreover, a particular challenge to the collec-tive memory of the body politic. The legacy left 'by an incumbent ofthat office is a particularly comllex and subtle heritage. During hislife, he occupies an office whose powers and responsibilities, althoughgreat, are also ambiguous.' The title "Chief Justice" appears but oncein our Constitution. Notably, that mention is not in Article HI, the* Judge, United States Court of Appeals for the Seventh Circuit.See Peter G. Fish, The Office of Chief Justice of the United States: Into the Federal Judici-ary's Bicentennial Decade, in THE OFFICE OF CHIEF JUSTICE 1, 7-9 (White Burkett Miller Ctr.of Pub. Affairs 1984); KENNETH F. RIPPLE, CONSTITUTIONAL LITIGATION § ii-5(A), at 440-42(1984); Kenneth F. Ripple, The Role of the Chief Justice, in 1 ENCYCLOPEDIA OF THE AMERICANCONSTITUTION 242, 242-45 (Leonard W. Levy ed., 1986); Kenneth W. Thompson, Comments on1995]HARVARD LAW REVIEWjudicial article, but in the description of the procedures to be followedin a trial of the President of the United States on articles of impeach-ment.2 With little in the way of a specific mandate to fulfill, eachChief Justice has molded somewhat differently the Nation's highest ju-dicial office. Each has left a unique legacy upon his departure.3For Warren Burger, the end came gently as the Nation's capitalbegan to stir on a quiet early summer morning. He had been retiredfor almost a decade and, although in the public spotlight throughouthis tenure as Chairman of the Bicentennial of the Constitution, eventhat project's afterglow had waned. The immediate media commen-tary was swift and predictable. Networks prepare for these eventsand, given the Chief Justice's age, the news of that Sunday morningwas hardly unexpected; obituaries were no doubt already in the file.The "most important cases" of his tenure as Chief Justice, especiallythose that came from his own pen, were analyzed and reanalyzed. Hiscontributions to improvements in the administration of justice wereenumerated. It all seemed predictable, superficial, and incomplete, butalso entirely understandable. This complex, multifaceted man had leftbehind a legacy that even those who knew him well will need time toappreciate fully. Indeed, those of us who were privileged to share, tosome degree, the burden of his work must leave to historians not yetborn a definitive assessment of his contribution to our jurisprudenceand to our judicial system. We can, however, provide a glimpse of theman and his perspective that may aid in that assessment.For five years, I had the privilege of working by Warren Burger'sside; for a quarter of a century, he was a mentor and a friend. To-gether, we saw the tragedy of Watergate, the resulting tapes case,4 andthe possible impeachment of a President. Together, we walked Wash-ington, ate together, shopped together, and spoke of every possiblesubject. This past June, I stood beside him for the last time as he layin state in the Great Hall of the Supreme Court of the United States.As I stood that watch with my fellow clerks, a flood of memoriesrushed over me. I remembered our very first meeting in the confer-ence room of the Court. He had entered the room from his adjoiningthe Death of a ChiefJustice, MILLER CENTER REPORT (Miller Ctr. of Pub. Affairs, Univ. of Va.),Summer i995, at I.2 See U.S. CONST. art. I, § 3, cl. 6.3 See Felix Frankfurter, Chief Justices I Have Known, 39 VA. L. REv. 883 passim (1953);Paul A. Freund, Charles Evans Hughes as Chief Justice, 81 HARV. L. REV. 4 passim (1967);William H. Rehnquist, Chief Justices I Never Knew, 3 HASTINGS CONST. L.Q. 637 passim (1976);see also William F. Swindler, The Chief Justice and Law Reform, 1921-z971, 1971 SUP. CT. REV.241 passim (noting that Chief Justice Burger's judicial reform efforts made state and federalcourts nationwide more modem and efficient). See generally Walter F. Murphy, Marshaling theCourt: Leadership, Bargaining, and the Judicial Process, 29 U. CHI. L. REv. 640 passim (1962)(arguing that the nature of small group decisionmaking gives an astute Chief Justice the opportu-nity to broker coalitions and mold the factions of the Court to achieve his goals).4 United States v. Nixon, 418 U.S. 683 (1974).[Vol. 1o9:1WARREN E. BURGERprivate office, looked at me, appeared somewhat startled, and said,"Oh - I expected a much older man." He then laughed and, walkingtoward me, said, "But I learned a long time ago never to hold age foror against anyone." I also remembered the day he administered thejudicial oath to me, removed his judicial robe, and placed it over myshoulders. On that occasion, he had some blunt advice for the ThirdArticle's newest judge: If you are any good, no one will rememberwho appointed you.As I stood that last watch, however, my most vivid memory was ofJuly 1974, when another Chief Justice of the United States lay on thesame catafalque. Chief Justice Burger was, at that time, writing theopinion in the tapes case. At one point, he left his chambers, walkedto the Great Hall, and stood behind a pillar out of sight of the publicbut within view of the flag-draped casket of his predecessor. I neverdared to ask him to share his thoughts from that occasion. Certainmatters ought to remain between Chief Justices of the United States.As my watch continued and I reflected on all these memories, onepoint assumed prominence among all others: Warren Burger believedthat the United States had a soul; he believed that the values of thatsoul were embodied in the Constitution. Although the words of theConstitution were his usual starting point, there was a distinctive tele-ological quality to his thinking about the values that he believed ani-mate our Constitution. He accepted as a given the inevitable societalchange that comes with time. He viewed the United States as a vi-brant society on a journey. The values originally embodied in theConstitution were not anachronisms to be jettisoned along the way,but ideals to fuel that journey. For him, therefore, the best way to goforward was first to look back. Careful study and contemplation ofthe values embodied in the Constitution were the first steps in inter-preting the Constitution. Identifying and understanding those seminalconstitutional values was not an exercise in abstract political theory.The Constitution, as he viewed it, was rooted in the history of ourpeople. Only when he had an understanding of those roots did he feelcomfortable looking forward. Then, with the discipline of commonlaw methodology to guide him, he would attempt to apply that experi-ence of the past to the present. What earlier judges had said weighedheavily because, for him, the essence of the discipline of the commonlaw was to accept, respectfully but critically, the wisdom of those whohad gone before.The future, however, always remained the primary focus of hiswork and his daily perspective. He approached it with great care andcircumspection; his study and discussion exhibited a tentativenessgrounded in a realistic humility for what he could perceive, and whathe could not perceive, in that future. He was acutely aware that hiscommission as Chief Justice did not provide him with a crystal ball1995]HARVARD LAW REVIEWthat permitted him to see clearly a future that others could perceiveonly in its barest contours. Deeply committed to democratic govern-ance and instinctively suspicious of mortmain control, he believed thatthe future belonged to those who would live in it and that those indi-viduals, not he, ought to resolve the problems of their own time. Histask was to apply the received tradition of our constitutional values tohis day and to leave a judicial system in place that would allow hischildren's and grandchildren's generations to take care of their owntimes. Responsibility for the future, like the "letting go" of one's chil-dren, often involves, primarily, ensuring that the received tradition isunderstood and applied correctly today. With such a firm foundation,the future is able to take care of itself. For Warren Burger, the qualityof our governance today set the stage for our children's tomorrow.This preoccupation with leaving the Constitution and its values in-tact for the next generation was at the root of the great care and at-tention he gave, whether in his judicial writings or in his innovationsin judicial administration,5 to preserving the vitality of the institutionsof government. He was awed by the genius of the Founding Fathers6and convinced that, to preserve the rights of individuals, our institu-tions of government, especially the Article II judiciary, must remainup to the job of responsive governance. This same concern for thefuture was the motivation for his decision to undertake the chairman-ship of the bicentennial celebration of the Constitution.For those of us who worked in his chambers, however, his preoc-cupation with the future was best seen, not in the pages of the UnitedStates Reports, but in his approach to our own children. During myearly days with him, my eldest son became ill and my wife and I, likeany new parents, were very concerned. The week was filled with tripsto the pediatrician. The Chief Justice asked about his progress and, inthanking him for his concern, I added that it was not every one-year-old who had the Chief Justice of the United States inquire as to hishealth. Without a moment for a studied reply, the Chief simply re-marked: "Ken, at this point, his life is a great deal more important tothis Country than yours or mine."As I ended my watch by his side and made way for a colleague tohave some private time with the Chief, I became aware that a signifi-cant number of young people had filed by. Some were secondaryschool and college students engaged in government internships for thesummer who, in all probability, had benefitted from the educationalmaterials developed by the bicentennial celebration of the Constitu-s See WARREN E. BURGER, DELIVERY OF JUSTICE (iggo); see also Russell Wheeler, WarrenBurger: A Man of "Common Sense and Practical Ideas," JUDICATURE, July-Aug. iggs, at 8, 8(attributing the Chief Justice's interest in judicial administrative reform to his roots in "the moreconservative wing of the Progressive movement").6 See Warren E. Burger, Foreword to JEFFREY ST. JOHN, CONSTITUTIONAL JOURNAL (1987).[Vol. IO9:I1995] WARREN E. BURGER 9tion. Others were young parents who wanted their children to have amemory of the Chief Justice. The Chief would have appreciated theircoming - although he no doubt also would have advised that thechildren see the museum on the floor below before leaving the build-ing. Taking care of the Constitution was now their job. For WarrenBurger, the best way to take care of the future was to ensure thatthose who were to inhabit that future had the personal and institu-tional capacity to govern themselves.

In Memoriam: Warren E. Burger

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In Memoriam: Warren E. Burger

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