The salutary tradition of showing respect for the dead has temporarily overshadowed the less-than-flattering image that Warren Burger had among Washington lawyers and journalists, especially those steeped in the liberal-leaning culture of the law schools and the media during his 17 years as chief justice of the United States.

We were told by our professors and our newspapers that Burger was Richard Nixon’s judicial hatchet man, bent on rolling back the noble works of the Warren Court. We read in The Brethren that his brethren (and their clerks) mocked his pompous self-importance, resented his manipulative assignments of opinions, and disdained his middling intellect and pedestrian craftsmanship.

We groaned at his stuffily self-righteous speeches about the indignities visited on the legal profession by lawyer advertising, by cameras in courts, and by death row defense lawyers-whom he faulted for doing what any good lawyer in their position would do. We made fun of his more awkward judicial opinions. We tittered when he knocked the television camera out of the hand of a newsman who had pursued him into an elevator.

Across the ideological spectrum, conservative true believers came to think of Burger as an undependable compromiser more attuned to conventional wisdom and public opinion than to conservative principle.

There’s much truth in all this, and in the image of Burger as the chief justice from central casting, with a majestic white mane camouflaging a mediocre mind. But there were also some traits to admire in this sturdy, hard-working, fundamentally decent man.

Not only did he prove to be more open-minded and less of a knee-jerk conservative than expected; not only did he administer the necessary coup de grace to the foul Nixon, with his opinion for the Court (largely rewritten by his colleagues, to be sure) in United States v. Nixon (1974); not only did he labor heroically in the dull-but-important cause of judicial administration, reform, and education; and not only did his awkwardly formal public demeanor dissolve in private settings into a warmth and personal kindness that inspired passionate loyalty among his clerks.

Burger also gave voice to a common-sense approach to many great cases that-however lacking in analytical rigor or eloquence-often struck a reasonable balance by reining in liberal excesses without lurching to conservative extremes.

He came to prominence, of course, as a critic of the Warren Court’s solicitude for the rights of criminal defendants. While it is noted often (and with relief) that the Burger Court never overruled a major Warren Court precedent in this area. Burger himself has rarely gotten credit for pushing-with considerable success-to limit the potentially harmful reach of those precedents, and thereby to keep the focus of most criminal trials on the guilt or innocence of defendants rather than on how the evidence was obtained.

Consider Brewer v. Williams (1977), in which a 5-4 majority reversed the murder conviction of a man who had viciously killed a 10-year-old girl. The Court held that police had violated his right to counsel when they cajoled the intensely religious defendant, during a long car ride from which his counsel was absent, to help find the victim’s body so her parents could give her a "Christian burial."

Burger’s dissent began by asserting that such a result-aimed at penalizing police conduct that was far removed from coercive, third-degree interrogation-"ought to be intolerable in any society which purports to call itself an organized society." While unable to articulate a very convincing rationale for how the Court could avoid this jarring result without gutting the expansive holdings of Massiah v. United States (1964) and Miranda v. Arizona (1966), Burger did contribute a needed note of common sense by declaring, in essence, that if the law says this killer goes free. then the law is an ass. And, as it turned out, this killer did not go free, thanks in part to Burger. Seven years later, in Nix v. Williams (1984), he massed a majority to uphold a new conviction of the same defendant for the same murder. The Court held that the girl’s body could be used as evidence on the ground that the police would have found it even without benefit of the defendant’s confession.

Burger also steered a sensible, moderate course on civil rights issues-for example, by upholding measured use of busing when necessary to remedy school desegregation, and upholding congressionally enacted (but not state-enacted) affirmative action preferences-while resisting the liberal push to mandate unrestrained, egalitarian social engineering in the name of anti-discrimination.

And while Burger was no First Amendment absolutist-he was especially hostile to pornography, dirty words, and disruptive speech in schools-he evinced glimmers of libertarianism. especially in cases involving nonconformist religious minorities.

In Wisconsin v. Yoder (1972), ruling that the state could not fine Amish parents for refusing on religious grounds to send their children to formal schools after eighth grade, Burger asserted that "[a] way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different." And in Wooley v. Maynard (1977), he upheld the rights of Jehovah’s Witnesses to refuse to display New Hampshire’s slogan-"Live Free or Die"-on their license plates: "The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea that they find morally objectionable."

For a man whose media relations were at best prickly. Burger was far friendlier to the freedom of the press than he was to that TV cameraman in the elevator His opinions for the Court included Miami Herald v. Tomillo (1974) (holding that newspapers cannot be required to give people they criticize a right to reply); Nebraska Press Association v. Stewart (1976) (barring almost all judicial gag orders on the press in the name of protecting fair-trial rights); Richmond Newspapers v Virginia (1980) (recognizing First Amendment rights of press and public to attend criminal trials); and Chandler v: Florida (1981) (allowing stales to televise trials over defendants’ objections).

This conservative s pronouncements on some important policy issues-like the treatment of convicted prisoners. the education of illegal alien children, and gun control (which Burger long supported)- contrast favorably with the hard-line views that have become a staple of contemporary conservatism.

Burger was a passionate advocate of rehabilitating prison inmates by providing opportunities for them to work and develop marketable skills Today’s conservatives have long since abandoned any pretense of interest in rehabilitation; warehousing (if not killing) prisoners-the longer the better-is their solution to the crane plague.

What would Burger have said about California voters’ decision last November to kick thousands of children of illegal immigrants out of public schools’ Well, while he found nothing in the Constitution to bar a similar Texas law. and thus ; dissented from the 5-4 decision in Plyler v. Doe (1982), his dissenting opinion strongly indicts the stupidity of such laws: It is senseless for an enlightened society to deprive any children- including illegal aliens-of an elementary education…[and] to tolerate creation of a segment of society made up of illiterate persons."

And does anybody remember a doctrine called stare decisi?s The Court’s current conservative bloc barely pays it lip service. Warren Burger seemed to take precedents a bit more seriously, even the ones he didn’t like.

"[H]e proclaimed clearly and repeatedly that be would never vote to overrule Miranda," writes Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, who clerked for Burger in the 1976-1977 term, "because to do so would be an invitation to lawlessness by law enforcement authorities."

In short, Burger was an old-fashioned conservative, the kind who could voice aspirations for our legal system that would smack of giddy liberal utopianism if uttered today. He once wrote:

Within the legal structure of our generation, [are] slowly evolving new functions of the rule of law to give real meaning to the rights of minorities, new legal concepts that will have great impact on our system of justice. We are doing this in terms of rejecting the cynical laissez-faire philosophy, "Let the buyer beware," and substituting the idea that to assure justice, the foolish, the improvident, and the weak must be protected from the ruthless, the greedy, and the strong.

A lot of our new-age conservatives are brainier than Warren Burger. But they could learn some things from him.