Chief Justice Burger and Extra-Case Activism

The term "activism" as used in this paper relates to the chief Justice's myriad activities in judicial administration, and not to his policy decisions in cases coming before the court.2 This activism involves both Chief Justice Burger's pattern of alerting various bar, governmental, and generalaudiences to what he believes to be a crisis in court and penal administration and his commitments of substantial time and energy as chairman of the Judicial Conference and of the newly created Federal Judicial Center. It seems reasonable to view such conduct as "activism" since it involves a vigorous assertion of leadership and an expansive reading of the Chief Justice's constitutional and statutory mandates.To examine the nature and propriety of Chief Justice Burger's activism, the applicable constitutional and statutory provisions are first examined: first; the testimony of the Chief Justice himself is presented; and next; ChiefJustice Burger's extra-case activism is compared and contrasted with that of both his predecessor, Earl Warren, and that of an earlier Chief Justice, William Howard Taft. The author then discusses the ramifications of Chief Justice Burger's activism, considering its potential effect upon public policy, as well as upon the court as an institution.Link to a copy on HeinOnline - Available at your institution or remotely via their proxy server or via password.