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 semiretired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].

Of the 17 chief justices in Supreme Court history, all but one of them have been the subjects of biographies. That lonely one is Warren Burger, the chief justice who served from 1969 to 1986 and died in 1995.

That anomaly might end in the coming years, thanks to a long-hoped-for development that was made public for the first time for The National Law Journal’s Marble Palace Blog this week.

Tim Flanigan, a former law clerk to Burger who was authorized to be his biographer soon after Burger died, has joined Todd Peppers, a prolific Supreme Court scholar, to undertake the project, with a goal of finishing the biography in five years or so.

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

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

OK, but why, you might ask, has it taken so long for the biography to reach fruition? And also, why does it matter?

The first question goes back to the days after Burger died, when Flanigan and fellow former law clerks Kenneth Starr and J. Michael Luttig sat down to decide who might want to write a Burger biography. At the time Starr was independent counsel for the Clinton Whitewater controversy, and Luttig was a judge on the U.S. Court of Appeals for the Fourth Circuit. They turned to Flanigan, and he acquiesced in spite of his own growing government and private practice. He is currently chief legal officer for Cancer Treatment Centers of America.

Wade Burger, the chief justice’s son, was relaxed about having a biographer and gave Flanigan whatever timeline he chose. Flanigan took it to heart. He interviewed several justices about Burger, except for Byron White, and did other research on Burger’s early life. But then Flanigan set aside the project for a number of years. Wade Burger died in 2002.

“I do know that people from time to time have gotten upset that there was no biography of the chief justice at this point,” Flanigan said this week. “It was always my intent to do this, to finish it in retirement. That was clear between me and Wade. And as far as Wade and, I believe, the chief was concerned, there was no hurry to do this. But I get that people are interested.” He said he might end his in-house practice by next year.

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

The Burger family specified that his papers “are to remain closed to researchers until 10 years after the last Justice who served with Warren E. Burger on the Supreme Court has passed away, or 2026, whichever comes later.”

Since retired Justice Sandra Day O’Connor, who served with Burger, is still alive, that agreement means that scholars cannot view 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 had probably not visited the library for 10 years. Peppers will join Flanigan in having access to the papers.

As for why the delay of the project matters, there’s one answer that is blunt: People who might be valuable resources for the book are dying. Kenneth Starr died on Sept. 15, for example, though Flanigan says he interviewed Starr earlier. And Mark Cannon, Burger’s powerful, longtime administrative assistant, died in 2020.

Among Burger’s friends and admirers, the forthcoming book matters because Burger’s profile and achievements are often forgotten. The book “The Brethren” in 1979 depicted Burger as pompous and unpopular with his colleagues. Others think he was boring, and as such his biography is not likely to be a page-turner, when in fact he had a significant role in growing the judicial branch and was instrumental in key Supreme Court cases. A deep-dive book about Burger might 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 made many significant and enduring contributions to the administration of the Judiciary and it is fitting to see this biography emerge during this 100th anniversary year of the Judicial Conference of the United States.”

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