A rare encounter with America's chief justice
Washington — It's called the John Marshall Room - named after the famous chief justice of the United States of the early 1800s. It's stately and sedate - graced with 18 th-century antiques and hanging portraits of William Marbury and James Madison. A silver tea service, vases of fresh flowers, and sparkling mirrors provide backdrop for a simple but elegant luncheon table set for two.
The host comes in promptly - a kindly, affable man with a shock of gray hair. He is wearing a navy suit, blue tie with a thin silver clasp, and smart maroon handerchief. He bids the guest to sit and partake of chicken a la king, crisp green salad, and fresh fruit cocktail. And the conversation begins in earnest.
No. This is not a variation on ''My Dinner With Andre.'' It's a luncheon of a reporter with the chief justice of the United States, Warren E. Burger.
Chief Justice Burger, who has completed 15 years as presider over the highest court in the land, has invited me to discuss one of his favorite topics, prison reform.
And that's just what he wanted - a discussion, not an ''interview.'' Chief Justice Burger emphasizes it's improper for him as a sitting jurist to submit to press interviews (although on a handful of occasions he has appeared before selected media people to discuss nonjudicial issues in what many would call an interview.) Discussion with the press by any judge of current cases before his court is a breach of judicial etiquette.
The chief justice, as a rule of thumb, has even shunned spot media questions. However, he did initiate this luncheon for the Monitor with the understanding that he would not be be taped or quoted directly on this occasion.
Warren Earl Burger - who along with his eight associate justices has just finished a term of weighty, often controversial cases - is something of a study in contrasts. An unusually formal man, he is at the same time outgoing and courteous. He talks of old-fashioned values - self-worth, responsibility to society, and efficiency - that intertwine his professional and personal lives. Everything he says indicates he believes that virtue should be amply rewarded and misdeeds swiftly punished, that the safety and well-being of the majority must not be imperiled by the wrongdoing of a few.
The chief justice has often expressed impatience with slothfulness. Yet he would accept the idea that there are times when man must be his brother's keeper. This is particularly apparent in his philosophy about prisons and prisoners.
These things influence his court decisions but also his off-the-bench crusades - the need to develop a work ethic among prisoners, the desirability of revamping the court system to lighten burgeoning caseloads, and the urgency to upgrade legal education.
Currently his first priority is prisons. He indicates he would like to see most of the nation's 400,000 inmates trained for meaningful jobs by being put to work while still behind bars. His rationale is threefold: Prison jobs would give inmates dignity and self-esteem; they would relieve boredom and restlessness that can lead to riots or further lawlessness; they would lay the groundwork for useful, productive citizenship after release.
Several states - among them Minnesota, Arizona, Kansas, Texas, and Michigan - are now involved in intrastate prison industries. For example, more than 100 men in the Minnesota Penitentiary are engaged in assembling Control Data computers. Chief Justice Burger has pointed out that ''those inmates are guaranteed a job when they leave.''
''Is there any doubt this program will reduce recidivism?'' he asked.
The chief justice - who has visited prisons in Europe as well as in the Soviet Union and the People's Republic of China - would like to see US penitentiaries adopt some of the reforms practiced in the Scandinavian countries. He says violent crime in Sweden and Denmark is low compared with the US. And 90 percent of those incarcerated in those nations are natives and literate. American prisoners, on the other hand, are largely ethnic minorities, unschooled, and untrained.
Chief Justice Burger hopes to launch a national crusade to upgrade education and training in US prisons. He has previously called upon the states to repeal legislation that, he says, has erected a ''wall of protectionism'' forbidding the interstate sale of prison-made goods.
Until now, union opposition to broadening the market for prison products has been unbending. But the chief justice predicts this barrier will eventually break down as inmate production comes to be seen as sound economics as well as a humanitarian program.
Chief Justice Burger recently spearheaded a ''factories-with-fences'' conference, sponsored jointly by George Washington University and the Brookings Institution. Here scholars, prison experts, and public officials called for the formation of a public-private national task force to draw up a ''model'' for prison work standards.
Some of the chief justice's critics are skeptical of the idea. They insist his devotion to improving the plight of prisoners through education and work doesn't dovetail with some of his recent judicial decisions that limit prisoners' rights. The Supreme Court's recent rulings on the exclusionary rule - allowing evidence to be admitted into court although it may be tainted by improper police procedures - also may curtail legal options for those accused of serious crimes. Chief Justice Burger, who wrote several of the majority opinions in cases that adjust rules of criminal evidence, sees no inconsistencies. In his opinions, he maintains the rights of those convicted of felonies must sometimes be limited for the protection and safety of others.
For instance, civil libertarians sharply denounced a Burger opinion which held that a prisoner has no reasonable expectation of privacy in his cell against certain types of searches. Such scrutiny is necessary, the chief justice wrote, to uncover drugs, weapons, and other contraband.
Known as a hard-liner on law and order, the chief justice is often scored by liberals for cutting back innovations of the Warren court of the 1950s and '60s, which stressed individual rights, particularly for minorities.
The Burger court, however, has also had a liberal side. It has broken new ground in its findings for the rights of women, reinforced some press freedoms, and struck down some local court decisions where it perceived ethnic or racial prejudice played a role.
On the other hand, the chief justice and his more conservative colleagues on the court have rejected affirmative action as a blanket remedy for past biases.
If the chief justice has marched to different drummers in the area of individual rights, he has followed a single beat outside the courtroom in his quests for reform of the legal system. He has complained about inadequate preparation in the law, sometimes angering fellow barristers. But his nagging has resulted, he insists, in more ''practical'' law school curricula.
Recently, he chaffed American Bar Association members by referring to some lawyers as ''hired guns'' and chiding them for perpetuating unnecessary litigation.
The chief justice has also campaigned for trial alternatives such as mediation, arbitration, and mini-hearings, which he says will shave the high costs of legal counsel.
His proposal to create a temporary intermediate panel of jurists to resolve intercircuit discrepancies and to lighten the high court's workload has gained some congressional notice but so far has failed to become a reality.
However, Chief Justice Burger says he has seen some significant progress as a result of his advocacy for better-trained prison personnel with the formation of the National Academy of Corrections.
The chief justice avoids talk of retirement. However, he does allow he would likely have a freer rein in his crusades for prison industries and court reform if he were not a sitting justice.
But, at the luncheon, he indicated settling down is not in his nature. After an arduous nine months of hearing and deciding cases, he admits that he and his colleagues are overworked. Since he became chief justice 15 years ago, the high court's caseload has increased 50 percent.