Will Chief Justice Burger’s Official Biography Ever Arrive?
Chief Justice Burger may be the least influential member of the Burger Court. In modern-day discussions about constitutional law, he barely registers. Justice Blackmun wrote Roe. Justice Powell wrote the Bakke concurrence. Justice Rehnquist led the federalism revolution. Justice Stevens led the Court’s liberal wing for decades. Justice O’Connor was the first female Justice. Indeed, the members of the Burger Court that preceded Burger–Black, Douglas, Harlan, Brennan, Stewart, White, and Marshall–still feature prominently in any study of constitutional law. The most significant Burger decision in our casebook was INS v. Chadha, and we have since removed it. Perhaps Burger has a bigger influence in Criminal Procedure. But for Constitutional Law, I spend very little time talking about Chief Justice Burger. Maybe Burger’s only modern-day relevance is his short essay about the Second Amendment in Parade Magazine.
For these reasons, I was unaware that Chief Justice Burger did not have an official biography. Tony Mauro explains why.
Shortly after Burger died in 1995, three of his law clerks met to discuss an official biography: Ken Starr, Mike Luttig, and Tim Flanigan. According to Flanigan, “no one was really interested in doing a biography of the chief justice, at least that we could find, and it came, ‘Well, should one of us do it?'” At the time, Starr was busy with the Clinton investigation, and Luttig was a busy federal judge. According to Flanigan, “They both kind of looked at me and said, ‘Well, you’re just practicing law, Tim. Why don’t you do the biography?'”
According to the New York Times, the Federalist Society “administered the financing for the project.” The benefactor was Dwight Opperman. By 2001, the Federalist Society paid more than $600,000 “for researchers, expenses and a salary for Mr. Flanigan.” That amount was equivalent to Flanigan’s salary from
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