Historical society this is almost an hour. Good afternoon ladies and gentlemen, on behalf of the trustees of the historical society, welcome to our 42nd annual lecture. Before we do anything else, i will 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 am greg joseph, president of the society. Welcome. We are delighted to have you here today. We are honored to have resident emeritus of nyu john sexton, whose topic tonight is Warren Burger, the founder of our society and of immense importance to us. There is no one more qualified than president sexton to deliver this lecture. He was a Warren Burger clerk, but he had a long history before that. President sexton earned his ba in history and in a and phd and religion, and taught religion in brooklyn before he went to harvard law school. He went to harvard law school, graduating 1979 magna cum laude, and was the Supreme Court editor of the harvard law review. He clerked on the d. C. Circuit court before he clerked for chief Justice Burger. He went to nyu in 1981, and by 1988 he was dean of his tenure there was extremely successful. The law school is firmly ensconced in the rankings as one of the top five in the country. By 2002, he had been elevated to president of nyu. He served there until the end of 2015. During that tenure, freshman applications doubled. The endowment grew by over 200 . Minority in rome and went from 11 to 19 . And throughout all of this he continued to teach. We are going to have to get ready for our lecturer he set up a variety of other important positions including president of the Federal Reserve bank of new york, president of the American Association of law schools, president of the new york academy of science thank you it was 43 years ago that chief Justice Burger founded this society. To talk about Warren Burger, president john sexton of nyu. Thank you very much. It is a great honor for me to be here today my first introduction to Warren Burger and the society came at the same time when i went just outside of the courtroom just downstairs to watch four films that the chief justice to watch the films that the chief justice have created. More on that later. Very different judges. Three different, but three special men. Nearly 40 years ago, i was privileged to serve each as a law clerk. Nobody, including me, would have predicted chief Justice Burger would have selected me. My references were an allstar list of his critics. [laughter] derek bell, arthur miller, alan morrison. Larry tribe. Ordinarily the chief did not interview his clerks before they came to him. He basilon clerk. I called charlie and suggested that he withdraw my name and add a candidate who might have a reasonable chance. He replied, dont ever stereotype the chief justice. That warning proved to be an important lesson. So it was that on new years day, 1980, chief Justice John Berger 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 11. He also wanted to know what i thought about a recently published book called, the brethren. [laughter] we spent a good bit of time talking about the insanity defense. Finally he closed by saying, what were those professors who recommended you think if you clerked for me . Three days later he called, saying, i know you are going through some tough times, i wanted to tell as soon as i made up my mind that i chose you. I never asked how he knew that my mother was in the last weeks of her battle with cancer. I came to understand that that thoughtfulness was a characteristic of Warren Burger. 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 is 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 are not the same. The former is a label of a dozen justices and commendations. The latter is a single actor in the larger picture who exercised certain influence, but had no capacity to insist his views would be accepted by the other justices. In this talk, i wont 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 rereading virtually the entire corpus. The burger court is seen in most areas as a doctrinal bridge from the warren court to the rehnquist court. It is credited with very few top trying to breakthrough, still most could see that it made progress and the important area of the rights of women. The core doctrines were not reversed as nixon had promised that they would be. Indeed, the burger courts and in many areas undertook the difficult work of giving life to these broad principles in the boards difficult context of second and third generation. Cases in some areas, there surely was to retrenchment but not reversal. Generally, the chief Justice Burger himself is given higher marks for caring far more about the state of the judiciary and the legal profession. Beyond voting his own time and energy to this, he created the institute of court management, the institute of Traditional Administration and of course, the society. His involvement with the state courts was unprecedented his annual reports on the state of the judiciary referred to the testament to his work in this area. For all of this, the chief is generally applauded. They, are in the consensus view, the credit ends. When it comes to his oeuvre as a justice, he is lambasted for ambiguity and discussing cases that conference after argument, indeed some commentators go so far as the say that he missed counted his own vote so that he could control the assignment of the opinion, and finally he is indicted personally as aloof, pompous and self important. That having been said, as the consensus view of Warren Burger, it is notable that there is a powerful, in my view, counter narrative that arises as far as i can tell, from sources i who, though not on biased, were privileged to have the most intimate view of the chief both as a judge and a person. His law clerks. A Senior Member of the legion, robert, has chronicled a clerks view of the chief justice in the societies journal. Reports from the chiefs law clerks, including many distinguished judges and professors are bound. I of course speak from that space as well. I can report authoritatively only on my own experience, but ive not heard of anyone who clerk for the chief justice who would offer serious disagreement with the view i will offer here. Such a dissenter may exist, but i do not know of him or her. Indeed, given my pedigree, we might well have expected me to be that center the dissenter. Before going on, i should add that as a scholar have not been reluctant to disagreeing with the chief justice, even when he was alive. For example, my colleague samuel and i argued against the chiefs proportional for an Immediate Court of appeals which would sit only below the Supreme Court. He thought this new court could alleviate what he saw as the excess workload of the 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 had misdiagnosed the problem as a problem of capacity. What was really a problem of selectivity. So the general point is i am no shill for the chief justice. Nonetheless, im here today to say that the consensus view at the very least, mrs. Elements of the chief justice records 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 of statutory rape law that applied only two males. Two years before, the chief justice had publicly dissented from the denial in a similar case indicating in that case, that he would have granted and summarily reversed. In the first paragraph of my memo i noted his prior position, but i went on to argue using much the logic of the court he would have summarily reversed. That he should changed his mind. I remember his invitation to discuss the memo. What why dont we talk about the case who said i got wrong, he asked . As he drew my memo from the top drawer of his desk. On the front page, he had inscribed with a felt tip pen, which seemed to be a huge zero covering nearly the entire page. You see that, he asked . As i read these memos, i put a question mark next two points with which i disagree. He flipped through the page revealing dozens of question marks. He concluded, the more i disagree, the bigger the question mark. He pointed back to the zero with a big smile. That is 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, anymore to say . When i said no, he announced, well, i am wary started, but now i am ready for my debate with Justice Brennan at conference. In the end, his view prevailed. The equal protection case was argued on first monday. The next day the court took up the case on which i had written my second bench memo. A case involving what was for the chief justice, a fourth issue. Cameras in the courtroom. Florida had begun to allow such coverage in criminal trials. The defendants had contested that conviction on the ground that the coverage had the pride them of a free and fair trial. This time, we spent less than half and i were discussing my mom. I had argued that no prejudice had occurred. He thought florida had instituted a very very that program. The whole thing was a bad idea. It found ultimately his view to undermine the dignity of the courts. 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, when the monday and tuesday cases were voted, he walked in the office and he 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, im glad you thought the way i. Did he quickly responded by saying, what do 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. One other example before move on. The chief new, for reasons obviously for my introduction. That i was interested in religion causes. I was not 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 claimant who had refused to accept an assignment because his views of his religion prohibit prohibited him to do so. The outcome really did seem to be squarely controlled by a nearly 20 year old president that had been often cited by the court as embodying the basic test for the free exercise court. The only twist was that a religion of the claimant accepted the assignment, asserting that the religion did not for bid doing so. The court settled that issue with one sentence. Quote, courts are not arbiters of scriptural interpretation. Closed quote. But there was Something Else notable about the case. Something that could not be known even to the most careful external observers of the court. In the 19 seventies, as the court gave increasing attention to the religious cause cases, it became apparent to us that we 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, and one draft i turned into him. I offered a 20 page section four, that in my view digits. 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. 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 are 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 is how the opinion went to the court. This was not a headline move or able statement of the importance of decisive is, like the wonderful opinion of Justice Oconnor and kennedy in casey versus planned parenthood. But it taught me how deeply khoury 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 and 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 and early answering machine for his secretary that would be tight and distributed to us. They gave us a sense of his approach to the first draft, including his analysis of the various arguments and relative cases. We then would do triple spaced drafts with white 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 clerks, side by side. What became clear in the sessions to me, and i believe to those of us who have clicked for the chief, was that the chief was quite adept at engaging in legal analysis of the sort painted by law professors and immortalized in the legendary materials on legal process. He believed that text and history offer discernible indicators that if not mathematically precise, served a channel reasoning in cases. That precedence provide guidance to judges as they decide cases. And that there are boundaries that can find the exercise of judicial power and deprive judges of policymaking discretion. Even as the issue decisions that have policy implications. Though he possess the ability to engage in what he called writing opinions that read like articles, he made a firm deliberate choice not to do so. He preferred in most circumstances, a more vernacular the one grounded in his view of the precedents, and characterized by reasoning in general rather than a close exit g6 of the case. This no doubt did not elevated stature with academic critics. My assessment of his capacity in this regard, utterly as odd as it is santa is one widely shared among his law clerks. Alex kaczynski has written an article in which he says what he found most i see joined the judges of staff, was the figure that he brought to the analysis and debate of the issues involved. I would be remiss if i closed 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 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 on a day that the court was closed to the public, he took the time to take my then 11yearold son on a personal tour of the court. When we got to the great hall just outside here where the bus of the former justices are kept, he told jared stories about each one in turn. I will confess for jet. He was 11. We were scheduled to play basketball upstairs. And just about the ninth justice, he started going like this. But the chief plowed on and she had learned a lot more about the Supreme Court. I remember how he helped me through a diet that took off 30 pounds, the i think he fibbed a bit about the pounds that he 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. He always worried that we were taking too much time from our families for the work of the court. Looking back, i recall with the great bc judge carl mcgowan said to me when he heard i was going to clerk for the chief. Quote, you will like him. I was always a little bit jealous about the long, close relationship he had with his clerks while he was here. Close quote. And Carla 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 things. I will not try in this top to defend particular aspects of the chief justice is judicial work. In some areas, i can do so easily, and in others my critique would be less favorable or sometimes even harsh. In all, however, i think that Justice John Paul stevens got it good in some reform when he wrote and i quote, lauren burgers contribution to the law in years after i joined the court have not been fully appreciated. Closed 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. The importance today of the courts rule in our society and the fragile nature of the courts ability to perform its role, dependent as it is on the institutions hard worn moral authority. It is 30 years since the chief stepped aside to oversee the celebration of the constitutions 200th birthday and over 20 years since his death. I often wonder how he would assess the state of our union. The fear, uncertainty, distrust, anger. These are four words he would not have used to describe america or its people, if 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 full hershwin warned that he saw a law time coming when americans all would see the stubborn and exasperating otherness of others, the unsettling experience of being shut off not just from the opinions, top but from the entire Life Experience of large numbers of ones contemporaries. Close quote. He predicted a systematic lack of communication between groups of citizens who would become walled off from each other. Closed quote. In the end he said, quote, 25 years ago, quote caused each group will at some point ask about the other and puzzlement and offer with mutual revolt repulsion. Revulsion. How did they ever get to be that way . And quote. 25 years later we are here. More over, even as this process has unfolded, there are ominous signs today, but that has been around for a while, that knowledge and series thought are being devalued. Political views have become like religious creeds. At best, and testable in civil discourse, and sometimes even at odds with an observable 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. As our Attention Span shrinks and we faced a barrage of an differentiated 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 relative hissed well, we are all entitled to our opinion. But at the very least, argument by assertion untested by argument in the public square. Many of us inhabit islands of fact and political creates. Consider this is an example. A poll taken shortly after the russian invasion of crimea. With less than 20 of those poles could identify crimea on the map. The median person was off by nearly 2000 miles. Someplace in south america. Most polls, however were willing to express a view on whether United States intervention in the disputes was a good idea, and support for intervention rose directly as ones ignorance of the location of crimea rose. Today, persuading those who start from a different position is a lost art. Honoring what is right in the other sides argument is considered foolish. It is hard to convince anyone of anything that he or she does not already believe. We essentially live in a coliseum culture that reduces discord to combat, pitting simplistic and bipolar viewpoints against each other in a battle of slogans. Nearly 50 years ago, chief Justice Burger warned, quote, when men shout and shriek work on these, we witness the end of rational thought, if not the beginning of blows and combat. Closed quote. We have gone beyond his worst nightmare. Not surprisingly, these developments have brought us to the point where large numbers of our fellow citizens simply do not trust our leaders or institutions. This culture of distrust of course amplifies the ability of demagogues to propagate can spirited, conspiracy theories and alternative facts, eviscerating the fabric of our society. From the denial of Scientific Consensus to the propagation of fiction about immigrants. It corrosive rhetoric has entered our national discourse. Some might argue that the chief justice would not be in hydrogen over these developments. In my view, they would be wrong, but a reasonable person could make that assessment. That said, it is beyond dispute that he would have rushed to the ramparts had he lived to see the concomitant fertile attacked on the rule of law and the courts that is now occurring. It started a generation ago. Just two years after his death. That is 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, closed quote, it would be, quote, 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 recalls line, closed quote. He urged his clients to quote, resort to such ridicule, 20 years later, even the president attacks, quote, socalled judges. Close to quote. And calls our courts, quote, political, closed quote. At his core, chief Justice Burger believed in the institutions targeted by these attacks. He believed in an america based on law and forged by lawyers. For him, law was the principal means by which we were able to nip one nation out of eight people whose dominic count characteristics have always been adversity. He believes that lawyers and judges are charged with the special role of interpreting our laws and 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 the Supreme Court. Because he held this view, the chief justice devoted much of his life to building the moral authority of the court. In a book he wrote for laypeople about it he highlighted how the Supreme Court has given the constitution life. He carefully nurtured the film project to which i referred earlier, to tell the story of 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. When 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 interests. In the words of justice stevens, quote, burgers opinion for the court and United States versus nixon may well have done 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 justices belief in institutions and even his deep devotion to the constitution were naive. Indeed, even as the chief began his work on the bicentennial, the great Justice 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 effective in improving the states of black right here in this building. Itself was documented last year by my fellow clerk. He understood this 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 has been an erosion of the vital capital he worked to build, and that the publics faith in the judiciary and even in this court itself has declined. A gallup poll taken a few months before bush versus gore indicated 62 of our people believed the court was doing a very good job. Today, the numbers 45 . Some suggest with plausibility, that this decreased public admiration for the court is attributable at least in part to the much lower views the public now has of government as a whole. If they are right, and the court is primarily a victim of the greater dysfunction in and contempt for government in general, it only connects more intimately the trends ive noted. One thing im sure of, chief Justice Burger wed be alarmed. Here is how in my view, what ive that sulfur comes together. And would come together for the chief justice. Against the backdrop of a growing allergy to nuance and 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, he would emphasize that the court derives enormous moral power from the honesty and transparency of the dialog process seen in its published work. Sometimes, we forget the remarkable nature of the courts institutional commitment to thought. I am hardpressed to think that any institution other than the court and to courts like it, that exercises real power day in and day out, but which imposes on itself voluntarily, and 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 cole publishes the differing viewpoints, including the dissent. There may be well other institutions that both exercise power and commit to such a rigorous process, but if they exist, they had escaped my tension. I take it as a given that were we interpreter were he alive today in the position to do so, 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 courts example in facing the great issues of the day. I think were he still able to address the court, he would take care to exemplify the courts judicial commitment to intellectual rigor and fidelity to principle rather than to ideology. I think he would argue that if it did so, the court thereby it would light a pathway for our nation, not just in its formal rule as trusted arbiter 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 the ideological khoshal inyy unwilling to work legally in the application of the constitutions great principles. One justice of the court was her to say, anyway, spending a year with eight justices on the Court Created the positive outcome of greater conversation among the justices, more openness to understanding different viewpoints, and a willingness to find areas of consensus and developing decisions. The chief justice, who have an example of such behavior, would wish that the court would model its behavior even has a nice justice is added. Academic studies have shown a meaningful correlation between the party of the president to appointed a justice or judge and the way the justice or judge appointed votes in certain sorts of cases. Listing names like warren, blackmon, brendan, stevens 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 dispositive. Indeed, there is ample evidence in the same literature that there is often agreement in cases notwithstanding different political background where the precedents pushed to a certain results. My early story about the chief justices decision in free exercise case shows that the chief was among those who understood that. And followed precedents 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 provided time to candidates for federal office. A divided panel of the court of appeals had upheld the requirement with the majority opinion written by the chiefs long standing bitter adversary. David basil on. At conference, after oral argument, the vote was five to four to reverse david. The chief justice was in the majority, and delighted he is signed the opinion to himself. The next day his thoughts, while shaving arrive. The drafting process began. Mike low kirk who is here today was the clerk on this day. 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 is just not writing. It is just not writing. Every scholar knows this battle. A thought initially experienced as brilliant often does not satisfy the rigorous demands of being written as text, where every logical step must be clear and where the argument must lead forward with each passing sentence. Those of us who sing well in the shower notice experience as well. It is just not writing. After several weeks of debate in chambers, the chief sent the memo to the eight other justices, informing them that he had changed his view, informing them that the vote was still five to four, but now to affirm, and informing him that he would continue to assign the majority opinion to himself, now with the opposite result. 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, six to three, was a testament to the deliberative process. The chief justices insistence that the arguments leading to an exercise of power by the court, quote, right well, closed quote. It is his celebration of thought for which if you 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. 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 spent most of my professional life. Like the court, they deal at their essence with the nuances and complexities of the difficult 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 have spoken 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, yet we almost go to the ramparts for this cause. It would surprise many that chief Justice Burger would have let us there it is not surprise me or the others who worked by his side. Thank you very much. applause from all of us, thank you for that enlightening, educational and