WARREN BURGER ON JUDICIAL CAUTION

In the inside rear cover of R.L. Bruckberger's Image of America (1959), Warren Burger writes a note, dated 6/17/60, that expresses in rather poetic form a conservative understanding of judicial restraint. Burger had been a judge on the DC Circuit since 1956. He writes:

"In the development of the law judges, even more than legislators who afford the means and speak directly for the people, must accept progress step by step, less than Utopian. The mystics and romantics dream good dreams but they want to leap over centuries. Man does not leap over centuries, he crawls over days and nights and over painful hours."

Note that in Burger's handwritten note what begins as a description of the judicial role slides into a connection between judging in its cautious aspect and the human condition as such. If the slowness of human development means that political activity should always be cautious, then judicial incrementalism seems to be the most appropriate form of political activity (broadly conceived, of course; I am not saying that Burger argues that judges are self-consciously engaging in political activity).

This is the same book in which Burger noted his objection to Jefferson's call for a spirit of continuous revolution, as I noted here.