"However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises"
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Burger is doing something judges often do when they want to narrow a sweeping argument without sounding hostile to it: he grants the premise of confidentiality, then quietly drains it of absolutist force. The line turns on “solely” and “broad, undifferentiated.” Those are not neutral adjectives; they’re scalpels. He’s warning that when a privilege (typically evidentiary privilege in court: attorney-client, journalist-source, executive communications, marital, psychotherapist) is justified only by an airy appeal to “the public interest,” it becomes less a principled rule than a rhetorical shield.
The specific intent is constraint. Burger is signaling that privileges are exceptions to the legal system’s default preference for full disclosure and truth-seeking. If you can’t articulate a tailored, concrete rationale for secrecy, you don’t get to win by invoking “confidentiality” as a civic virtue. Courts, in his view, shouldn’t validate vagueness with deference.
The subtext is a clash of institutional priorities. “A confrontation with other values” is understated judicial code for the hard stuff: a defendant’s right to a fair trial, the public’s interest in transparent government, the press’s role in scrutiny, the judiciary’s need for reliable evidence. Burger’s phrasing frames confidentiality not as a moral good but as one value among several, and not automatically the most important.
Contextually, this fits Burger’s era: post-Watergate skepticism about executive secrecy, expanding claims of privilege in government and media, and a Court wary of creating new, open-ended protections that could obstruct accountability. He’s staking out a conservative jurisprudential posture: recognize confidentiality where it’s specific and socially necessary; distrust it when it’s just a vibe.
The specific intent is constraint. Burger is signaling that privileges are exceptions to the legal system’s default preference for full disclosure and truth-seeking. If you can’t articulate a tailored, concrete rationale for secrecy, you don’t get to win by invoking “confidentiality” as a civic virtue. Courts, in his view, shouldn’t validate vagueness with deference.
The subtext is a clash of institutional priorities. “A confrontation with other values” is understated judicial code for the hard stuff: a defendant’s right to a fair trial, the public’s interest in transparent government, the press’s role in scrutiny, the judiciary’s need for reliable evidence. Burger’s phrasing frames confidentiality not as a moral good but as one value among several, and not automatically the most important.
Contextually, this fits Burger’s era: post-Watergate skepticism about executive secrecy, expanding claims of privilege in government and media, and a Court wary of creating new, open-ended protections that could obstruct accountability. He’s staking out a conservative jurisprudential posture: recognize confidentiality where it’s specific and socially necessary; distrust it when it’s just a vibe.
Quote Details
| Topic | Justice |
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