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The Marble Palace Blog: Stalled for years, Warren Burger’s biography is back on track

Thank you for reading The Marble Palace blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semi-retired in 2019, but I’m still fascinated by the high court. I will be happy to receive advice or suggestions for topics to write. You can reach me at [email protected]

Of the 17 Chief Justices in the history of the Supreme Court, all but one have been the subject of biographies. That alone is Warren Burger, the chief justice who served from 1969 to 1986 and died in 1995.

This anomaly could come to an end in the coming years, thanks to a long-awaited development that was first made public on the National Law Journal’s Marble Palace blog this week.

Tim Flanigan, a former Burger jurist who was cleared to be his biographer shortly after Burger’s death, joined Todd Peppers, a prolific Supreme Court scholar, in undertaking the project, with the goal of completing the biography in five years approximately.

“This guy is awesome, and together we can accomplish something really worthwhile,” Flanigan said in an interview this week. “It’s a great professional marriage of talents and interests.”

“We will be equal partners in everything,” said Peppers, a Roanoke College public affairs professor who has written extensively about Supreme Court clerks. “And that makes this project less daunting for me. Tim is truly steeped in the Warren Burger tradition. I can just sit with him and listen to stories for two hours.

OK, but why, you might ask, did it take so long for the biography to come to fruition? And also, why is it important?

The first question goes back to the days after Burger’s death, when Flanigan and fellow former lawyers Kenneth Starr and J. Michael Luttig sat down to decide who might want to write a biography of Burger. At the time, Starr was an independent attorney for the Clinton Whitewater controversy and Luttig was a judge on the United States Court of Appeals for the Fourth Circuit. They turned to Flanigan, and he acquiesced despite the growth of his own government and private practice. He is currently the legal director of the Cancer Treatment Centers of America.

Wade Burger, the Chief Justice’s son, was relaxed about having a biographer and gave Flanigan the calendar of his choice. Flanigan took it to heart. He interviewed several judges about Burger, except Byron White, and did other research on Burger’s early life. But then Flanigan shelved the project for several years. Wade Burger died in 2002.

“I know people have gotten upset at times that there’s no chief justice biography at this point,” Flanigan said this week. “I always intended to do it, to finish it in retirement. It was clear between me and Wade. And as far as Wade and, I believe, the leader, there was no rush. to do it. But I understand that people are interested. He said he could end his in-house practice by next year.

Another factor that stalled the project was Burger’s papers, which his family donated to the College of William & Mary in Virginia. The William & Mary Library collection includes over 1,200 cubic feet of papers and thousands of photographs and artifacts.

The Burger family clarified that its papers “must remain closed to researchers until 10 years after the death of the last justice who served with Warren E. Burger on the Supreme Court, or 2026, whichever is later.”

Since retired judge Sandra Day O’Connor, who served with Burger, is still alive, this deal means researchers can’t see any of the documents until 2032 at the earliest. Flanigan was the only person allowed to view the documents, and last year he said he probably hadn’t visited the library in 10 years. Peppers will join Flanigan in gaining access to the papers.

As to why the project’s delay matters, there’s one answer that’s straightforward: people who could be valuable resources for the book are dying. Kenneth Starr died on September 15, for example, although Flanigan claims to have interviewed Starr earlier. And Mark Cannon, Burger’s longtime powerful administrative assistant, died in 2020.

Among Burger’s friends and admirers, the forthcoming book is significant because Burger’s profile and accomplishments are often overlooked. The 1979 book “The Brethren” portrays Burger as pompous and unpopular with his colleagues. Others think he was boring and as such his biography is unlikely to be a page turner, when in fact he was instrumental in the growth of the judiciary and played a role decisive in major Supreme Court cases. An in-depth book on Burger could alter his legacy.

“I am delighted that Tim and Todd are collaborating on this important work,” said James Duff, executive director of the Supreme Court Historical Society, who previously worked with Burger. “Chief Justice Burger has made many significant and lasting contributions to the administration of the judiciary and it is fitting to see this biography emerge in this 100th anniversary year of the United States Judicial Conference.”

Burger’s family said in a statement, “We are thrilled to have Tim Flanigan and Todd Peppers co-author a biography, and we look forward to its publication.”