Nixon's Court

His Challenge to Judicial Liberalism and Its Political Consequences

Kevin J. McMahon

• Publisher: University of Chicago Press
• Year: 2011
• ISBN:
  9780226561219
• Topic: Política y relaciones internacionales
• Subtopic: Política

Most analysts have deemed Richard Nixon's challenge to the judicial liberalism of the Warren Supreme Court a failure—"a counterrevolution that wasn't." Nixon's Court offers an alternative assessment. Kevin J. McMahon reveals a Nixon whose public rhetoric was more conservative than his administration's actions and whose policy towards the Court was more subtle than previously recognized. Viewing Nixon's judicial strategy as part political and part legal, McMahon argues that Nixon succeeded substantially on both counts.

Many of the issues dear to social conservatives, such as abortion and school prayer, were not nearly as important to Nixon. Consequently, his nominations for the Supreme Court were chosen primarily to advance his "law and order" and school desegregation agendas—agendas the Court eventually endorsed. But there were also political motivations to Nixon's approach: he wanted his judicial policy to be conservative enough to attract white southerners and northern white ethnics disgruntled with the Democratic party but not so conservative as to drive away moderates in his own party. In essence, then, he used his criticisms of the Court to speak to members of his "Silent Majority" in hopes of disrupting the long-dominant New Deal Democratic coalition.

For McMahon, Nixon's judicial strategy succeeded not only in shaping the course of constitutional law in the areas he most desired but also in laying the foundation of an electoral alliance that would dominate presidential politics for a generation.

CHAPTER ONE

Nixon’s Victory

Oppositional Presidents and the Cycles of Supreme Court Politics

On the first July night in the summer of 1967, as the asphalt simmered in the heat, tensions began to cool. Inside his corner tavern, Eddie Wenzek felt relieved. Two nights earlier, as riots raged around him, he had kept guard. With rifle in hand, Eddie had stood ready, prepared to defend his property, his livelihood, his lifetime of memories.¹ The night before Eddie armed himself, bands of youths—1,500 strong—were roaming the streets and doing wrong. In a futile attempt to put down the unrest, the police had fired tear gas and shotgun pellets into the crowds, wounding fourteen and intensifying anger. A sympathetic observer conveyed his concern. “They’re mad, and I’m scared. Damn scared.” Television news crews scurried to the scene, “attracting the attention and stirring the irritation” of those in the streets. One of the youths explained why there was so much antagonism in the air. “White people don’t know what it’s like to have a policeman always beating you on your head.”² The next days brought baseball legend Jackie Robinson to town, pleading for peace and hoping for success. But many had already seen enough. The Triple-A Bisons, for one, announced they would abandon their home diamond for the next six games. The War Memorial Stadium—a.k.a. “The Rockpile”—was simply too close to the action.

Indeed, everyone seemed to expect the twilight’s noise of hammer on nail—as storeowners shielded their windows with plywood’s protection—to soon give way to the sounds and smells of the recent darkness—the screams and shouts, the pounding of feet, the shattering of glass, the stench of the tear gas. But as this day turned to night, an anxious calm—punctured by brief skirmishes—emerged in Buffalo, New York, the Queen City of the Great Lakes. By the next day, the disturbances had all but ceased. Statistics told so little of the tale, but the newspapers still tallied up the totals: “more than 60 injuries, more than 180 arrests, and about $250,000 in property damage.”³ There were no deaths. Compared to the many other cities that had or would experience similar strife in the 1960s, it wasn’t all that bad. But the city had changed. At the corner of Sycamore and Herman, Eddie Wenzek put his weapon away, never needing to use it. His place, unscathed by the unrest, stood safe. But it would not for long.⁴

At the other end of the state, in Manhattan, someone else had men like Eddie Wenzek on his mind.⁵ To Richard Nixon, America was no longer the place it used to be. And in an effort to make it to the White House on his second try, he vowed to speak for “the forgotten Americans,” those he would later refer to as members of the “great silent majority.” As Nixon put it to the Republican delegates at the 1968 convention, these Americans were “the non-shouters, the non-demonstrators.” He continued:

They are not racists or sick; they are not guilty of the crime that plagues the land. They are black and they are white—they’re native born and foreign born—they’re young and they’re old. They work in America’s factories. They run America’s businesses. They serve in government. They provide most of the soldiers who died to keep us free. They give drive to the spirit of America. They give lift to the American Dream. They give steel to the backbone of America. They are good people, they are decent people; they work, and they save, and they pay their taxes, and they care. Like Theodore Roosevelt, they know that this country will not be a good place for any of us to live in unless it is a good place for all of us to live in. This I say to you tonight is the real voice of America.⁶

Yet, to Nixon, these Americans had been ignored, left out of the national discussion and left to watch as crime soared, the nation’s cities burned, its youth eagerly denounced authority, and its war in Vietnam marched into another year without a plan for peace.

While Nixon’s words that night spoke to all those concerns, they centered on the issue that would come to define the campaign—indeed a generation of campaigns. The issue attracted a variety of labels—from “crime in the streets” to “law and order”—but election analysts Richard Scammon and Ben Wattenberg probably described it best as “the Social Issue,” a phrase that captured the broader amalgamation of anxieties that exploded onto the scene in the late 1960s and early 1970s. Indeed, in the minds of many Americans, “ghetto riots, campus riots, street crime, anti-Vietnam marches, poor people’s marches, drugs, pornography, welfarism, rising taxes, all had a common thread: the breakdown of family and social discipline, of order, of concepts of duty, of respect for law, of public and private morality.” Americans still considered the war in Vietnam the “most important” issue during the campaign. However, as Scammon and Wattenberg noted, voters were not “primarily” choosing their candidates based on their positions on the war, but they were on “the social issue.”⁷

Strikingly, the institution allegedly responsible for causing much of this deterioration of the moral fabric of American society was the Supreme Court of the United States. Indeed, in the hands of Nixon (and third-party candidate George Wallace), the Supreme Court became a powerful tool for attracting votes, a device for constructing a new electoral coalition. In Nixon and Wallace’s framing, the Earl Warren–led Court, in its drive to oust inequality and racial discrimination from the core of the American experience, had done more wrong than right. And while they would focus on just a few Supreme Court issues in their campaigns for the presidency, for other conservative critics there was much more to complain about. Specifically, by the summer of 1968, the Court’s recent rulings had aided Communist forces, abetted criminals intent on causing harm, threatened to dislodge schoolchildren from the security of their neighborhoods, unleashed a wave of pornographic smut, released murderers from death row, forced prayer out of the schools, and loosened society’s constraints on sexual promiscuity.⁸ In the next few years, the Court would provide more fuel for these fiery critics by—in their eyes—sanctioning the spilling of the nation’s military secrets, allowing antiwar messages—like “Fuck the Draft”—into the nation’s courthouses and classrooms, giving free rein to those denouncing the authority of the badge, encouraging women to devalue their traditional role in American life, beginning the process of guaranteeing those unwilling to work a monthly check, and unleashing a massacre on the nation’s unborn.⁹ It did it all, moreover, in the name of the Constitution, a document nearly two centuries old but interpreted by the Court’s nine unelected wise men to keep up with the times, to live even though its drafters had died long ago.

With decisions so easily typecast as unflinchingly liberal, it didn’t take much to convince voters unnerved by the rebellious spirit of the sixties that the Supreme Court was at least partially responsible for the unrest throughout the land. And if anyone needed a push to make the connection, Nixon and Wallace stood ready to explain. As Nixon constantly reminded his audiences in one way or another, the Court’s decisions “had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces.” Alabama’s Governor Wallace was more blunt, referring to the Court as a “sorry, lousy, no-account outfit” and blaming it for—among other things—the skyrocketing levels of crime across America.¹⁰

Richard Nixon’s Court?

Many have explored the political machinations and consequences of the presidential election of 1968 and the resulting Nixon presidency.¹¹ In the pages that follow, I do not seek to retell old tales, but rather—with the benefit of time, space, and documentary evidence from the archives—add a fresh perspective to these events and the policies and politics they produced.¹² Specifically, given the commanding role criticisms of Supreme Court decisions played in the campaign, my goals are to provide an accurate account of the Nixon administration’s policy toward the judiciary and to assess its success.¹³ To date, such assessments have generally been legally focused and largely negative. With an eye toward Nixon appointee Justice Harry Blackmun’s 1973 opinion in Roe v. Wade, scholars and commentators have usually concluded and social conservatives have vocally complained that Nixon’s campaign to turn back Warren Court–style liberal activism came up short. In the words of the most memorable scholarly assessment, it was a “counterrevolution that wasn’t.”¹⁴

It is easy to understand why so many have suggested that Nixon failed in his effort to transform constitutional law with his Warren Burger–led Court. After all, when Nixon spoke about the Court, he usually spoke in tough conservative terms. And yet, more than forty years after his election to the White House and the appointment of thirteen of the last seventeen justices by Republican presidents, social conservatives remain decidedly displeased with the Court’s product. While many scholars and commentators would agree that there have been significant conservative gains in various areas of the law,¹⁵ the most vocal critics from the right often minimize these gains and emphasize the failures instead.¹⁶ In particular, they are quick to point out those areas of enduring liberalism on “the social issue” or, in today’s terms, the “culture war.” And indeed, even after Nixon-appointee William H. Rehnquist spent thirty-five years attempting to rewrite the law, many of the policy goals essential to social conservatives had yet to command a Supreme Court majority when his time on the bench came to an end. Put simply, at Rehnquist’s death in 2005, abortion remained legal, affirmative action stood largely intact, schools could not assist students in prayer, pornography was speedily available with the click of a mouse, and gay marriage was a constitutional right in Massachusetts.

Robert Bork, a man at the center of the conservative effort to transform constitutional law and who was once tapped to join the high bench himself, issued one of the angriest complaints about the lack of progress during Rehnquist’s long tenure on the Court. To Bork, Nixon’s second-term solicitor general and Ronald Reagan’s rejected nominee, “the Court as a whole lists heavily to the cultural left.” Writing in 2002, he complained, “no matter how many Justices are appointed by Republican presidents, the works of the Warren Court and the victories of the ACLU are not reversed.” Instead, the Court is the most “elite institution in America,” in that it is most often “ahead of the general public in approving, and to a degree enforcing, the vulgarization or proletarianization of our culture.”¹⁷

Speaking more softly and writing specifically about the Nixon-constructed Burger Court, the liberal legal scholar Herman Schwartz generally agreed with Bork’s assessment, noting in 1987, “many of the basic principles and doctrines developed by the Court under Chief Justice Earl Warren to protect individual liberty and promote social justice have survived the Burger era intact, and some were strengthened.” Schwartz added: “One would never have expected this in 1969, when Richard M. Nixon nominated Warren Burger to be the Chief Justice.” A few years earlier, Anthony Lewis, the longtime liberal columnist for the New York Times, offered a similar sentiment, writing, “When Warren E. Burger succeeded Earl Warren as chief justice of the United States in 1969, many expected to see the more striking constitutional doctrines of the Warren years rolled back or even abandoned.”¹⁸

Indeed, while it would be easy to conclude that Bork-like conservative expectations for the Court were a creation of Ronald Reagan’s more ideological challenge to its liberal doctrine, this is not the case. Rather, during his presidency, many thought, as historian Bruce A. Kalk writes, “Nixon [had] cast his lot with a strain of thinking on the right that sought to roll back the achievements of the Warren Court, especially its expanding interpretation of the Bill of Rights and its crippling of Jim Crow.”¹⁹

I argue, however, that Nixon’s approach to the Supreme Court has been misunderstood and misjudged. Mistakes of perception rather than leaps of logic are at the root of most of these flawed analyses, with scholars and commentators assuming aspects of Nixon’s judicial policy that simply were not there. They have done so largely for two reasons. First, they have focused too much on what the president said—or what his critics said he meant—rather than on what he and other administration officials actually did with their policy toward the judiciary. And second, far too much significance has been awarded to Nixon’s selection of conservative jurists for the Court: namely, his two failed southerners, Clement Haynsworth and G. Harrold Carswell, and his final choice, William H. Rehnquist. This focus has worked to diminish the importance of his more moderate selections—Warren Burger, Harry Blackmun, and Lewis Powell—and to deemphasize other aspects of the president’s judicial policy. I pay equal attention to all six of Nixon’s high Court nominees and, more important, I analyze them in the political context in which they were chosen rather than as independent ideological entities. I do the same for his two choices for the position of solicitor general, the so-called tenth justice, because a complete analysis of a president’s judicial policy requires more than just an examination of the individuals he puts on the Court. It also requires an analysis of the administration’s litigation strategy and the individuals at the center of that strategy.

My analysis shows that Nixon’s administration pursued a more limited and focused course of action than his rhetoric implied and his critics feared. It also suggests that politics far more than ideology drove all six of his choices for the Court. To be sure, Nixon insisted on selecting “conservatives” for the Court, but he defined that term loosely and certainly did not insist that his nominees be ideologically pure. This is not to say that the president intentionally desired to construct a moderate Court. With some of the Burger Court’s rulings, he clearly would have preferred a more conservative course. With others, he would have endorsed the moderate tone. More to the point, Nixon really only cared about a few issues under the high Court’s command. On those, he thought a shift in doctrine would be better for the nation and aid him in the construction of his “New American Majority.” On other issues, he never displayed a willingness to sacrifice failure at the ballot box in order to create a Supreme Court to match his most conservative rhetoric, believing instead that the unpopularity of the justices’ liberalism in some areas of the law might actually help advance his electoral interests.

Two principles dominated Nixon’s thinking about judicial policy and strategy. First, electoral success was more important than advancing an ideologically consistent brand of judicial conservatism. More specifically, his policy toward the judiciary w...