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. It is worth a moment. President sexton earned his ba his ma 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 then clerked for judge basil on and judge leventhal on the d. C. Circuit court before he clerked for chief Justice Burger. After his clerkship, 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 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 enrollment and went enrollment went from 11 to 19 . And throughout all of this he continued to teach about the Supreme Court. Jennifer, we are going to have this get ready for our lecturer. He set up a variety of other important positions including 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. Viewed thank you. It was 43 years ago that chief Justice Burger founded the society. To talk about Warren Burger, the man in the court and society, president john sexton of nyu. Thank you. [applause] thank you very much. 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 the chief justice had created on four great John Marshall cases. More on that later. Let me begin. Leventhal, babylon, Warren Burger, very different judges. Three different, but three special man. 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, alan dershowitz, arthur miller, alan morrison. Ordinarily the chief did not interview his clerks before they came to him. He had a Selection Committee chaired by the legendary charlie hobbs, and the chief then chose his clerks from the paper record. The day that i met with the committee, i was a leventhal clerk. To my delight, i was told my name would be forwarded. Then on november 20, George Leventhal died suddenly. By the following week, i was a basilon clerk. Lon animosity between basi and the chief was widely known. So 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] and perhaps a proxy for the selection for the three judges for whom i had clerked, we spent a good bit of time talking about the insanity defense. Finally he closed by saying, what would 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, so i wanted to tell u. S. Soon as i made up my mind that i have chosen you. I never asked how he knew that 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. 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. Is credited with very few doctrinal breakthroughs, though most could see it could make progress in the important area of the rights of women. The core doctrines of the warren court were not reversed as nixon promised they would be. Indeed, the burger court, in many areas, undertook the difficult work of giving life to these broad principles in the more difficult context of second and Third Generation cases. In some areas, there surely was retrenchment, but not reversal. Generally chief Justice Burger himself is given high marks for caring far more about the state of the judiciary and the Legal Profession beyond 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 center for state courts was unprecedented. His annual reports were further testament to his work in this area. For all this, the chief is generally applauded. They are in the consensus view, the credit ends. When it comes to his oevre as a justice, he is lambasted for ambiguity and discussing cases that conferenced after argument, and indeed some commentators go so far as to say that he miss miscounted his own vote so that he could control the assignment of the opinion, and finally he is indicted personally as aloof, pompous, and selfimportant. 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 who, though not unbiased, or 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 viewhronicled the clerks of the chief justice and the societys journal. Reports from the chiefs law clerks, including many distinguished judges and professors, abound. I, of course, speak from that space as well. I can report authoritatively only on my own experience, but i have not heard of anyone who clerked 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, 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 and i argued against the chiefs proposal for an Immediate Court intermediate court of appeals low only theit Supreme Court. He thought this 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 [laughter] and an accompanying book, we argued that the chief had misdiagnosed the problem as a problem of capacity in what was really a problem of selectivity. So the general point is, i am no shill for the chief justice. Nonetheless, i am here today to say that the consensus view, the very least misses elements of the chief justices record and record that carry important lessons and his 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 only to males. Two years before, the chief justice had publicly dissented from the denial in a similar case indicating that he would have granted and summarily reversed. In the first paragraph of my memo, i noted his prior position, but went on to argue using much the logic of the court he would have summarily reversed. Reversed that he should change his mind. I remember his invitation to discuss the memo. Why dont we talk about that case you say i got wrong . As he drew my memo from the top drawer of his desk. On the front page, he had inscribed with a felt tip pen what seems to be a huge zero covering nearly the entire page. [laughter] you see that, he asked. As i read these memos, i put a question mark near points where i disagree. He flipped through the pages and revealed dozens of question marks. He concluded, the more i disagree, the bigger the question mark. [laughter] he pointed back to the zero and said with a big smile, that is the period at the bottom of the question mark. [laughter] 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 where i started, but now i am ready for my debate with Justice Brennan at conference. [laughter] in the end, his view prevailed. The equal protection case was argued the next monday. The next day, its about the case on which i had written my second bench memo. Cameras in the courtroom. Florida had begun to allow such coverage in criminal trials. The defendants had contested their conviction on the grounds of coverage have deprived them of a fair trial. This time we spent less than half an hour discussing my memo. I had argued that no prejudice had occurred. He thought florida had instituted a very bad program. The whole thing was a bad idea, found ultimately by the ability to undermine the dignity of the courts. Still, he listened to all my arguments, probing, not rejecting them. In the end, he said he would think about it. After conference on wednesday, he summoned me to the office. 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 saw it the way i did, to which he quickly responded, what makes you think it was unanimous your way . [laughter] 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. One other example before i move on. The chief knew, for reasons obvious from my introduction, that i was interested in religion clauses, so i wasnt surprised when he told me 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 religion forbid him to do so. The outcome really did seem to be squarely controlled by a nearly 20yearold precedent that had often been cited by the court of embodying the test. The only twist was that a igioniston a corel of the claimant accepted the assignment, asserting the religion did not permit doing so. The court settled that issue with one sentence, courts are not arbiters of scriptural interpretation. But there were Something Else notable about the case that could not be known even to the most careful external observers of the court. In the 1970s, as the court gave increasing attention to the religion clause cases, it became apparent to us that we were watching carefully that developing was 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 there was an opportunity to propose a grand theory reconciling the two clauses in the doctrine under them. Indeed, in one draft i turned into him, i offered a 20 page section four that, in my view, did just that. It was the magnum opus of a novice. [laughter] when the draft came back to me, each of those 20 pages have 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. We are bound in this court to our precedents, even those with which we strongly disagree. We do section four with a simple quote from the prior case, and thats how the opinion went to the court. This was not a headline move or a bold statement of the importance, like the wonderful opinion of Justice Oconnor and kennedy in kc versus planned versusood, casey planned parenthood, but it told me how the chief believed in the court, and it was connected to the channel of thought 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. We then would do triple spaced drafts with wide margins that would allow him ample space for writing comments with the ever present felt tip pen. Every draft of every opinion was analyzed, chief justice and clerks sidebyside. What became clear to me in these sessions, and i believe to those of us who have clerked for the chief, was that the chief was quite adept at engaging in legal analysis of the sort favored by law professors and immortalized in the legendary materials of legal process. He believed that text and history offer discernible indicators that, if not mathematically precise, serve to channel reasoning in cases, and judgesecedents provide guide on cases, and there are boundaries that can find the exercise of judicial power and deprived judges of a policymakers discretion, even as they issued 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 and more vernacular style, though one grounded in his view of the precedents, and characterized by reasoning in general rather than a close exegesis. This, no doubt, did not elevate his stature with academic critics. My assessment of his capacities withis regard are at odds the conventional wisdom about craft,tery of a judges is one widely shared among his law clerks. Alex kaczynski has written an article in which he says what he found most surprising as he joined the chief justices staff was the vigor 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 at odds with the received view of him as aloof, pompous, and selfimportant. I remember how he volunteered to call the mayo clinic when he found out my wife suffered from daily migraine headaches. I remember how, on a day 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 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. At just about the ninth justice, he started going like this. [laughter] but the chief plowed on and jed learned more about the Supreme Court. [laughter] i remember how he helped me through a diet that took off 30 pounds, though i think he fibbed a bit about the pounds 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 checked on our spirits when we seemed down. And he always worried that we were always taking too much time from our families for the work of the court. Looking back, i recall what the great d. C. Judge carl mcgowan said to me when he heard i was going to clerk for the chief. You will like him. I was always a little bit jealous about the warm, close relationship he had with his clerks while he was here. And carl 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 justices judicial work. In some areas, i can do so easily. In sum, my critique might be less favorable, sometimes even harsh. In all, however, i think that Justice John Paul stevens got it good in some form when he wrote contributionsers to the law in the years since i joined the court have not been fully appreciated. 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 role in our society and the fragile nature of the courts ability to perform its role, dependent as it is on the institutions hardwon moral authority. It is 30 years since the chief stepped aside to oversee the celebration of the constitutions s 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 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 hershwin warned that he saw a time coming when americans would experience what he called 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 ones contemporaries. He predicted a systematic lack of communication between groups of citizens who would become walled off from each other. , 25 years he said later, each group will at some point wonder about the other in puzzlement and mutual revulsion, how do they ever get to be that way . 25 years later, we are 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 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 Spans 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. Argument untested in the public square. Many of us inhabit islands of ux 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 a map. The median person was off by nearly 2000 miles, some placing it in south america. Most polls, however, were willing to express a view on whether United States intervention in the dispute was a good idea, and support for intervention rose directly as ones ignorance of the location of crimea rose. [laughter] today, marshaling a case to persuade 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 doesnt already believe. We essentially live in a coliseum culture that reduces discourse to combat, pitting simplistic and bipolar viewpoints against each other in a battle of slogans. Nearly 50 years ago, chief Justice Burger warned when men shout and shriek or call names, we witness the end of rational thought, if not the beginning of blows and combat. 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 conspiracy theories and alternative facts, eviscerating the fabric of our society. From the denial of Scientific Consensus to the propagation of fiction about immigrants, a corrosive rhetoric has entered our national discourse. Some might argue that the chief justice would not be in high dudgeon over these issues. In my view, they would be wrong, but a reasonable person could make that assessment of him. That said, it is beyond dispute that he would have rushed to the ramparts had he lived to see the 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 is when i first noticed it, when i received the writings of a political commentator at the time who was advising clients that in the coming battle, it would be almost impossible to go too far in demonizing lawyers and judges. His polling had suggested that attacking lawyers and judges is a chief applause line. He urged his clients to resort to such ridicule when making your points. 20 years later, even the president attacks socalled judges. And calls our courts political. At his core, chief Justice Burger believed in the institutions targeted by these attacks. He believed in an american based in america based on law and forged by lawyers. For him, law was the principal means by which we have been able to knit one nation out of a people whose dominant characteristics have always been diversity. He believed 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 of 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 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 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, burgers opinion for the court in United States v. Nixon may have done more to inspire confidence in the work of judges, the confidence that is the backbone of the rule of law, any other decision in the history of this Supreme Court. Some would say that the chief justices belief in institution, and even his 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 3 5 compromise. Quiet but verye Effective Work in improving the status of blacks right here in was inn, itself this building, itself was understoodlast year, this argument, but felt nonetheless that the high principles contained in our constitution and in our laws deserve celebration. More than that, they required it. The chief knew that moral power was fragile and must be nurtured. You 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 v. Gore indicated 62 of our people thought the court was doing a good job. Today the number is 45 . Some suggest the 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 i have noted. But one thing i am sure, chief Justice Burger would be alarmed. And here is how, in my view, what i have said so far 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 dialogic process seen in its published work. Sometimes we forget the remarkable nature of the courts institutional commitment to thought. Ofm hard pressed to think any other 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 copublishes differing viewpoints, including the dissent. 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. [laughter] i take it as a given that 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 urge that it take care to exemplify the best of the courts traditional commitment to intellectual rigor and fidelity to principal rather than to ideology. And i think he would argue that if it did so, the court thereby would light a pathway for our nation not just in its formal role as trusted arbiter of law, but also as a model for our leaders and people of the embrace of thought. In this context, the chief justice surely would be wary of signs of ideological capture or an unwillingness to work collegially in the application in the pursuit of the application of the constitutions great principles. At a recent judicial conference, one justice of the court was heard 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 different viewpoints, and a willingness to find areas of consensus in developing decisions. The chief justice, who often exemplified such behavior, would wish that the court would model ninthehavior even as a justice is added. Academic studies have shown a meaningful correlation between the party of the president to appoint a justice or judge and the way the justice or judge appointed votes in certain sorts of cases. Listing names like warren, brendan, blackmun, stevens does not gainsay 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 dent is pushedrece to a certain result. 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 had upheld the requirement, with the majority opinion written by the chiefs longstanding bitter adversary. At conference, after oral argument, the vote was 54 to reverse. The chief justice was in the majority, and delighted he assigned the opinion to himself. [laughter] the next day, his thoughts while shaving arrived, and the drafting process began. My colleague 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, it is just not writing. It is just not writing. Every scholar knows this battle. A thought initially experienced as brilliant often doesnt stand doesnt satisfy the rigorous demands of being written as text, where every logical step must be clear and the argument must lead forward with each passing sentence. Those of us who sing well in the shower know this experience, as well. [laughter] 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 54, but now to affirm, and that he would continue to assign the majority opinion to himself in the opposite result. [laughter] 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 was 63, a testament to the deliberative process. The chief justices insistence that the arguments leading to an exercise of power by the court write well 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 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 nuance and addressing and complexity our universities, where i have 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 i spoken mostly about the court will be challenged to avoid the general devaluation of thought and collapse of real dialogue that is pervading society. It will not be easy to find an antidote to the powerful forces at work, yet we all must go to the ramparts 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] from all of us, thank you for that in lightning, educational, and entertaining lecture. We are looking forward to publishing a version of that in the journal of Supreme Court history. Those of us i have heard it will enjoy it all the more for the presentation we heard today. Thank you very much for today
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