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tv   Life and Legacy of Chief Justice Warren Burger  CSPAN  August 2, 2017 5:58am-6:55am EDT

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so people, excited about it, there is a certain musical kind of gracefulness about a bridge like this. so people, i guess, just wanted to think it wasn't anything wrong. >> watch these programs and more as c-span's cities tour brings you to tacoma washington, saturday at noon eastern on c-span's book tv and on american history tv on c-span 3. the c-span cities tour working with our affiliates and cities across the country. warren burger was u.s. supreme court chief justice from 1969 to 1986. next, new york university law school professor, john sexton talks about chief justice burger's life and legacy. mr. sexton was a law clerk to the chief justice and later served as nyu's president and law school dean.
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this is a 50-minute event in the supreme court chamber. good afternoon, ladies and gentlemen, on behalf of the trustees of the supreme court historical society, welcome to our 42nd annual lecture. before we do anything else, i'll ask everyone to take out their phones and turn them off, even on silent mode, they will interfere with the sound system here in the court. i'm greg joseph. i'm president of the society. welcome. we're delighted to have you here today. we're honored to have as our lecturer, john sexton of nyu, whose topic tonight is warren burger, and warren burger, of course, is the founder of our society and is of immense importance to us. there's no one more qualified than president sexton to deliver this lecture.
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he's, was a warren burger clerk, but he a long history before that. president sexton earned his ba in history and ma in ph.d. in religion from fordham. he went to harvard law school, graduating in 1979, magna cou e magna cumlaude. he went to nyu in 1981. and by 1988, he was dean of the law school. his tenure there was extremely successful, the law school is firmly ensconced no the rankings as one of the top five law schools in the country, and by 2002, he's elevated to president of nyu and served thereby unt u
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the end of 2015. and by that tenure, freshman application doubled, the endo youment grew. and through out all of this, he continued to teach and write about the supreme court. and, in addition to all of this, he's had a variety. oh, jennifer, we're going to have to get this ready for our lecturer. he's had a variety of other important positions, including chair of the american council on education, president of the federal reserve bank of new york. be my guest. president of the american association of law schools. president of the new york academy of science. thank you. now it was 43 years ago that chief justice burger founded this society. and talk about warren burger, the man in the court and the
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society president, john sexton of nyu. thank you. [ applause ] >> thank you. thank you. thank you very much. it's a great honor for me to be here today. my first introduction to warren burger and to the society came at the same time. when i went just outside of this courtroom just downstairs to watch four films that the chief justice had created on four great john marshall cases. more on that later. let me begin. harold levinthal, david basilon. warren burger, three nobody including me would have
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predicted chief justice burger would have selected me. my references were an all-star list of his critics. derek bell, allen dirshowitz, arthur miller, larry tribe. ordinarily the chief did not interview his clerks before they came to him. he had a selection committee chaired by the legendary charlie hobbs that culled the field to eight and then the chief chose his four clerks from the paper record. the day that i met with the committee, i was a leaventhal clerk. to my delight, i was told my name would be forwarded. then on november 20th, judge leaventhal died suddenly. by the following week, i was a bezalon clerk.
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the animosity between judge bezalon and the chief were widely known. then i asked to withdraw my name and add a candidate who might have a reasonable chance. he replied, don't ever stereotype the chief justice. that warning proved to be an important lesson. and so it was that on new year's day, 1980, chief justice burger interviewed me for well over an hour. i was an older candidate, nearly 40 at the time. i had a family. he wanted to know about lisa, who was working at the carter white house. he wanted to know about jed who is here today but who then was
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11. he also wanted to know what i thought about a recently publicized book called "the brethren." and perhaps a proxy for a selection among the three judges of whom i had clerked. we spent a good bit of time talking about the insanity defense. and finally he closed by saying, what would those professors who recommended you think of you if you clerked for me? he called me i know you are going through tough times. as soon as i made up my mind, i had chosen you. i never brought up how my mother was in the last weeks of her battle with cancer, but i came to understand that that thoughtfulness was a characteristic of warren burger.
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literally dozens of books and hundreds of law review articles have been written about the burger court, the chief justice himself and various decisions made during that time. it's fair to say that taken as a whole, consensus view emerges about the burger court and warren burger himself. the two, of course, are related but they're not the same. the former is a label for the collective work over a generation of a dozen justices and various combinations. the latter is a single actor in the larger picture who exercised certain influence but had no capacity to insist that his views would be accepted by the other justices. in this talk, i want to attempt to add something new to this considerable literature. however, i do want to begin by offering a brief summary of what i take from reading and
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re-reading virtually the entire corpus. the burger court is seen in most areas as a bridge from the warren court to the rehnquist court. it is credited with very doctrinal breakthroughs, but it worked on the importance of the role of women. the burger court in many areas undertook the difficulties for giving life to the broad principles in the more difficult context of second generation and third generation cases. in some areas, there was truly retrenchment but not reversible. but generally, chief justice burger himself was given high marks for caring far more than
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earl warren about the state of the judiciary and the legal profession. devoting his own time and energy he created the institute of court management, the institute for judicial administration and of course, this society. his involvement with the state courts was unprecedented. his annual reports were further testament to his work in this area. for all this, the chief is generally applauded. there in the consensus view, the credit ends. when it comes to his work as a justice, he's criticized for lacking a judicial philosophy, he is lam baste -- lambasted for discussing cases. and some commentate to go as far to say he miscounted his own vote to control the assignment of the opinion.
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and finally, he's indicted personally as aloof, pompous and self-important. that having been said as the consensus view of warren burger. it's notable that there is a powerful in my view counter narrative that arises as far as i can tell unaboche from sources who, though not unbiassed, were privileged to have the most intimate view of the chief, both as a judge and as a person, his law clerks. a senior member of the legion, robert fabricant, has chronicled a clerk's view of the chief justice in the society's journal. and reports from the chief's law clerks, including many distinguished judges and professors, abound.
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i, of course, speak from that space as well. i can report authortively only on my own experience. but i've not heard of anyone who clerked for the chief justice who would offer a serious disagreement with the view i'll offer here. such a dissenter may exist, but i do not know him or her. indeed, given my pedigree, you might well have expected me to be that dissenter. i should add before going on that as a scholar, i have not been reluctant to disagree with the chief justice, even when he was alive. for example, my colleague, samuel ostriker and i argued that he thought the new court could alleviate what he saw as the excess workload of the
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supreme court by allowing justices to refer cases to it. in a 1200-page law review article, and an accompanying book, we argued that the chief misdiagnosed a problem of capacity. what was really a problem of selectivity. so the general point is, i'm no hill is for the chief justice. nonetheless i'm here to say that the consensus view at the very least misses elements of the chief justice record that carry important lessons on the court and its role in society. the very first bench memo i produced for chief justice burger dealt with a california decision striking down as an equal protection violation, a statutory rape law that applied
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only to males. two years before the chief justice had publicly dissented from the denial of this in a similar case indicating in that case that he would have granted and summarily reversed. in the first photograph of my memo, i noted his prior position. i went on to arguing much of the logic of the court he would have summarily reversed that he should have changed his mind. i remember his invitation to discuss the memo. why don't we talk about that case you saw i got wrong, he asked? as he drew my memo from the top drawer of his desk. on top front page, he had inscribed with a felt tip pen what seemed to be a huge zero
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covering nearly the entire page. you see that, he asked, pointing at the zero? as i read these memos, i put a question mark next to points with which i disagree. and he revealed dozens of question marks and concluded, the more i disagree, the bigger the question mark. he pointed back to the score he said with a big smile and said, that's the period at the bottom of the question mark. but he continued. he said, let me hear you make the case. three hours and many arguments later, he asked, any more to say? when i said no, he announced,
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well, i'm where i started but now i'm ready for my debate with justice brennan at conference. in the end, his view prevailed. the equal protection case was argued on the first monday, the next day the court took up the case in which i had written my second bench memo. a case involving what was for the chief justice a fraught issue. cameras in the courtroom. florida had begun to allow such coverage in criminal trials. the defendants had contested their conviction that the coverage had not allowed them a fair trial. this time we spent less than a half hour discussing my memo. i argued that no prejudice had occurred. he thought florida had instituted a very, very bad program. the whole thing was a bad idea, bound ultimately in his view to undermine the dignity of the courts.
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still, he listened with care to all my arguments. probing each one, not rejecting them. in the end, he said he would think about it. after conference on wednesday where the monday and tuesday cases were voted, he summoned me to the office and said, the vote in the tv case was unanimous. i replied with relief, not least because i knew he had rejected my view on the case the day before. thank you, sir, i'm glad you saw it the way i did. to which he quickly responded, what makes you think it was unanimous your way? then flashing that smile again, he said, i thought it might be enjoyable for us to work together on that opinion. we did and it was. he cared about making us feel comfortable with him.
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one other example before i move on. the chief knew for reasons obvious from my introduction that i was interested in the religious causes. so i wasn't surprised when he told me that he wanted us to work together on a religious liberty case. the case was familiar. looked like other cases. the denial of unemployment benefits to a claim man who refused to accept an assignment because the views of his religion permitted him to do so. and the outcome really did seem to be squarely controlled by a 20-year-old precedent that had been often cited by the court as embodying the basic test for the free exercise clause. the only twist was that a co-religionist of the claimant accepted the assignment asserting that the religion did not forbid doing so. but the court settled that issue with one sentence.
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quote, courts are not arbitors of scriptural. unquote. but something could not be known to the most careful external observers of the court. in the '70s, as the court gave increasing attention to the religion clause cases, it became apparent to us that were watching carefully that there was developing a serious tension between the doctrine under the establishment clause and the doctrine under the free exercise clause. as the chief justice and i worked on this case, i suggested that there was an opportunity to propose a grand theory reconciling the two clauses and the doctrine under them. indeed, in one draft i turned into him, i offered a 20-page
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section four, that in my view did just that. it was the magnum opus of a novice. when the draft came back to me, each of those 20 pages had a slash through it. with that darn felt-tip pen of his. and he said to me, all of this must go. were it not for the earlier case and the many cases following it, i would deny the claim here. but we're bound in this court to our precedence, even those with which we strongly disagree. we do section four with a simple quote from the prior case. and that's how the opinion went to the court. this was not a headline move or a bold statement of the
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importance of stare decisus. like the wonderful opinion of justice carter, sutter and kennedy in cases versus planned parenthood, but it taught me how deeply the chief believed in the moral authority of the court. and how he thought it was connected to the channel of thought, sometimes quite broad, sometimes narrow, created by prior decisions of the court. when it came to drafting an opinion, the chief always initiated the process with what he called thoughts while shaving. messages he would dictate. these were the days of dictating machines overnight into an early answering machine for his secretary that would be typed and distributed to us. they gave us a sense of his approach to the first draft, including his analysis of the various arguments and relevant cases.
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we then would do triple-spaced drafts with wide margins that would allow him ample space for writing comments with that ever-present felt-tip pen. every draft of every opinion was analyzed chief justice and clerk side by side. what became clear in these sessions to me, and i believe to those of us who have clerked for the chief, was that the chief was quite adept in engaging in legal analysis of those sought out by law professors and memorialized on legal process. he believed that text in history offer discernible indicators that if not mathematically precise serve to channel reasoning in cases. that precedence provides guidance to judges as they decide cases. and that there are boundaries
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that combine the exercise of judicial power and deprive judges of a policymaker's discretion. even as they issue decisions that have policy implications. though he possessed the ability to engage in what he called writing opinions that read like law review articles, he made a firm deliberate choice not to do so. he preferred in most circumstances a more vernacular style, though one grounded in his crew view of the precedence characterized in reasoning in general rather than a close look at the cases. that did not elevate his stature with academic critics. my assessment of his capacities
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in this regard, utterly at odds as it is with the conventional wisdom of the mastery of his craft is one widely shared among his law clerks. alex kosinski, for example, has written an article in which he says what he found, quote, most surprising as he joined the chief justice's staff was the vigor that he brought to the analysis and debate of the issues involved. i would be remiss if i close this section of my remarks without highlighting the close relationship that could develop between the chief justice and his law clerks. i offer this material, not only because it might explain why we are so biased in his favor, but also because it is utterly at odds with the received view of
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him as aloof, pompous and self-important. i remember how he volunteered to call the mayo clinic when he found out that lisa, my wife, suffered from daily migraine headaches. i remember how that on a day that the court was closed to the public, he took the time to take my then 11-year-old son on a personal tour of the court. when we got to the great hall just outside here where the busts of the former justices are kept, he told jed stories about each one in turn. i will confess for jed, he was 11. we were scheduled to play basketball upstairs. and just about the ninth justice he started going like this.
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but the chief plowed on and jed learned a lot more about the supreme court. i remember how he helped me through a diet that took off 30 pounds, though i think he fibbed a bit about the pounds that he as my pacer, was losing. no matter how busy he was, the chief invariably was sensitive to what was going on in our lives. he always asked after our health when we seemed tired. he always checked on our spirits when we seemed down. and he always worried that we were taking too much time from our families for the work of the court. looking back, i recall what the great d.c. judge cole mcgowan said to me when he heard i was going to clerk for the chief. quote, you'll like him. i was always a little bit
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jealous about the warm, close relationship he had with his clerks while he was here, closed quote. and cole mcgowan had a close relationship with his clerks. and he was right about the chief justice. we now come to the point where i want to connect these tales to some possible themes. i will not try in this talk to defend particular aspects of the chief justice's work. in some areas i could do easily, in others my critique would be less favorable, even harsh. in all, however, i think that justice john paul stevens got it good in some reform when he wrote, and i quote, warren burger's contributions to the
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law in the years after i joined the court have not been fully appreciated, close quote. but rather than playing law professor, i want to highlight what i think the chief justice would highlight himself if he were here talking to us today. a vital lesson for our time to which the importance today of the court's role in our society and the fragile nature of the court's ability to perform its role, dependent as it is on the institution's hard won moral authority. it is 30 years since the chief stepped aside to oversee the celebration of the constitution's 200th birthday. and over 20 years since his death. i often wonder how he would assess the state of our union. fear, uncertainty, distrust,
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anger, these are four words he would not have used to describe america or its people. yet they are often used to describe america these days. i think he would be disappointed and worried. 25 years ago the brilliant social commentator albert hershman warned that he saw coming a time when he saw most americans would experience what he called, quote, the massive stubborn and exasperating otherness of others. the unsettling experience of being shut off, not just from the opinions, but from the entire life experience of large numbers of one's contemporary, closed quote. hershman predicted a systematic lack of communication between groups of citizens who would
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become walled off from each other, closed quote. and in the end, he said, quote, 25 years ago, quote, each group will at some point ask about the other in utter puzzlement and often with mutual revulsion, how did they ever get to be that way? end quote. 25 years later, we're here. moreover, even as this process has unfolded, there are ominous signs today, but that have been around for a while, that knowledge and serious thought are being devalued. political views have become like religious creeds. at best, untestable in civil discourse. and sometimes even at odds with
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observable reality. we have as a society developed an allergy to the hard work of dealing with nuance and complexity. we yearn for simple answers. and as our attention span shrink and we face a barrage of undifferentiated information, many of us retreat, perhaps most of us retreat into feedback loops in which the information provided simply confirms the views already held. this leads to an equation of fact and opinion and the reduction of argument to assertion, sometimes accompanied with the relativist, well, we are all entitled to our opinion. but at the very least, argument by assertion untested by argument in the public square.
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many of us inhabit islands of fact, full fact, and political creeds. consider as an example a poll taken shortly after the russian invasion of crimea. less than 20% of those polled could identify crimea on the map. the median person was off by nearly 2,000 miles, some placing it in south america. most polled, however, were willing to express a view on whether the united states' intervention in the dispute was a good idea. and support for intervention rose directly as one's ignorance of the location of crimea. rose.
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today marbling -- martialing a case to those who start in a different position is a lost art. honoring what's right and the other side's argument is considered foolish. it's hard to give into anyone of anything, he or she, doesn't already believe. we essentially live in a coliseum culture that reduces discord to combat, pinning viewpoints against each other in a battle of slogans. nearly 50 years ago chief justice burger wrote, when men shout, shriek or call names, we end the irrational thought, if not the beginning of blows in combat, closed quote. we've gone beyond his worst nightmare. not surprisingly, these developments have brought us to the point where large numbers of our fellow citizens simply do
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not trust our leaders or our institutions. this culture of distrust, of course amplifies the abilities of demagogues to propagate conspiracy theories and alternative facts, eviscerating the fabric of our society, from the denial of scientific consensus to the propagation of fictions about immigrants a corrosive rhetoric has entered our national discourse. somebody argued that the justices would not be in high dungeon over these. in my view they would be wrong, but a reasonable person can make that assessment of him. that said, it's beyond dispute that he would have rushed to the ramparts had he lived to see the
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frontal attack on the rule of law and the courts that is now occurring. it started a generation ago, just two years after his death. that's when i first noticed it. when i received the writings of a political commentator at the time who was advising clients that, quote, in the coming battle, close quote, it would be almost impossible to go too far in demonizing lawyers and judges, closed quote. his polling had suggested that, quote, attacking lawyers and judges is a cheap applause line, closed quote. so he urged his clients to, quote, resort to such ridicule when making your points, closed quote. 20 years later, even the
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president attacks, quote, so-called judges, closed quote. and calls our courts, quote political, closed quote. justice burger believed in a -- he believed that lawyers and judges are charged with the special role of interpreting our laws and our constitution and enforcing the values they embrace. he understood, however, that the capacity of lawyers and judges to fulfill this duty depends upon the moral authority of our courts and especially of the supreme court. because he held this view, the chief justice devoted much of
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his life to building the moral authority of the court. in a book he wrote for lay people about it he wrote about how they have given the court life. and he nurtured the film project to tell the supreme court through the four cases that he chose from the term of john marshall. in the end, he did advance the moral authority of the court, the judiciary, the law and lawyers. one signature moment, of course, came when he and his colleagues, four of whom, including him, had been appointed by richard nixon, issued a ruling unanimously against the president's interest. in the words of justice stevens, quote, burger's opinion for the court in the united states versus nixon may well have done
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more to inspire confidence in the work of judges, the confidence that is the backbone of the rule of law, than any other decision in the history of the supreme court, closed quote. some would say that the chief justice's belief in institutions and his deep devotion to the constitution were naive. as the chief began his work on the bi-centennial, thurgood marshall warned against euphoria noting the sins of the framers as they were enshrined in the three-fifths compromise. the chief who was quiet but very impressive work right here in this building, understood this
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argument. but he felt, nonetheless that the high principles contained in our constitution and in our laws deserved celebration. more than that, they required it. the chief knew that moral power is fragile and must be nurtured. he would be alarmed to know that there's been an erosion of the vital capital he worked to build and that the public's faith in the judiciary and even in this court itself has declined. a gallup poll taken a few months before bush versus gore included 62% of our people believed the court was doing a very good job. today the number is 45%. some suggest with plausibility that this decreased public admiration for the court is a
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attributable at least in part to the much lower views the public now has of government as a whole. if they're right and the court is primarily a victim of the greater disfunction in and contempt for government in general it only connects more intimately the trends i've noted. but one thing i'm sure, chief justice burger would be alarmed. and here is how in my view what i've said so far comes together. and would come together for the chief justice. against the backdrop of a growing nuance in complexity and the emergence of a coliseum society, he would argue that the court, especially the court, must stand even stronger as a testament to the power of thought and reason. and make no mistake about it.
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he would emphasize that the court derives enormous moral power from the honesty and transparency of the process seen in its published work. sometimes we forget the remarkable nature of the court's institutional commitment to thought. i'm hard pressed to think of any institution other than the court and courts like it, that exercises real power day in and day out, but which imposes on itself voluntarily an obligation to explain fully in writing the reasoning behind the exercise of power. indeed at the time of the issuance of the decision, the court simultaneously
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co-publishes the differing viewpoints, including the dissents. there may well be other institutions that both exercise power and commit to such a rigorous process. but if they exist, they have escaped my attention. i take it as a given that were he alive today and given permission to do so, that the chief justice would be arguing that the court remains a paradigm of the power of thought. and that he would be urging his fellow citizens to follow the court's example in facing the great issues of the day. i think were he still able to address the court, he would urge that it take care to exemplify the best of the court's traditional commitment to intellectual rigger and fidelity to principle rather than to ideology. and i think he would argue if it
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did so, the court thereby would light a pathway for our nation, not just in its formal role as trusted arbitor of law but also as a model for our leaders and our people of the embrace of thought. in this context, the chief justice surely would be wary of signs of it logical capture, or the unwillingness to work collegiately in pursuit of a application of the constitution's great principles. at a recent judicial conference, one justice of the court was hurt to say that, in a way, spending a year with eight justices on the court created the positive outcome of greater conversation among the justices. more openness to understanding differing viewpoints, and a willingness to find areas of consensus in developing decisions. the chief justice who
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often exemplified such behavior would wish that the court would model this behavior even as a ninth justice is added. academic studies have shown a meaningful correlation between the party of the president who appointed the justice or a judge and the way the justice or judge appointed votes in certain sorts of cases. listing names like warren, brennan, blackman, stevens and and suitor does not gain, say, the general point. of course, it is true, that elections matter in this regard. that said, however, the data does not show that the political background of a justice is despositive.
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there is often agreement in cases notwithstanding different political background where the precedents push to a different result. my early story about the chief justice's decision and the free exercise case shows that the chief was among those who understood that. and who followed precedence, even where he disagreed. a specific instance where i saw him engage in magnificent thought and treatment of nuance and complexity involved a first amendment challenge to a federal requirement that tv networks provide time to candidates for federal office. a divided panel of the court of appeals held the requirement with the majority opinion written by the chief's long-standing bitter adversary david basslon.
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at conference, after oral argument, the vote was 5-4 to reverse basslon. the chief justice was in the majority. and delighted he assigned the opinion to himself. the next day his thoughts while shaving arrived and the drafting process began. my cloak clerk jim, who is here today, was the clerk on this case. as the days went by, jim would report after working with him on the opinion that the chief was struggling with it. he kept saying, jim, it's just not writing, it's just not writing.
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every scholar knows this battle, a thought initially experienced as brilliant, often doesn't satisfy the rigorous demands of being written as text. where every logical step must be cleared and where the argument must lead forward with each passing sentence. those of us who sing well in the shower know this experience as well. it's just not writing. after several weeks of debate in chambers, the chief sent a memo to the eight other justices informing them that he had changed his view. informing them that vote was still 5-4 but now to affirm and informing them he would continue to assign the majority opinion to himself now for the opposite result.
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after he circulated his first draft to the court and the dissent was considered, one other justice switched from reverse to affirm. so the published count 6-3 was a testament to the deliberative process. the chief justice's insistence that the arguments leading to an exercise of power by the court, quote, write well, closed quote, is his celebration of thought for which few would give him credit. moreover, it highlights his commitment to the court as a sanctuary of thought and as a model for other elements of society. today, more than ever, adherence to this view of the court is pivotal to its role as champion in our society.
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of course the court should not be asked to take on this burden alone. i fully understand that there is another great institution in our society, equally dedicated at its best to the celebration of thought and addressing nuance and complexity. our universities. where i've spent most of my professional life. like the court, they deal at their essence with the nuances and complexities of the difficulty issues of the day, and like the court, we must protect them against capture by those who would reduce them to dogmatism by demagoguery. that talk is for another day. but today, i will close by saying, that our sacred institutions today i've spoken
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mostly about the court, will be challenged to avoid the general devaluation of thought and collapse of real dialog that is pervading society. it will not be easy to find an antidote to the powerful forces at work, but we must all go for this cause. it would surprise many that chief justice burger would have led us there. it does not surprise me or the others who worked by his side. thank you all very much. [ applause ] [ applause ]
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from all of us, president sexton, thank you for that enlightening, educational and entertaining lecture. we are looking forward to publishing a version of that in the "journal of supreme court history" but those of us who have heard it will enjoy it all the more for the presentation we heard today. thank you very much for that.
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