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Nixon, the Supreme Court, and the Politics of Electoral Realignment

From: Reviews in American History
Volume 40, Number 4, December 2012
pp. 705-710 | 10.1353/rah.2012.0089

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For a president, appointing a Supreme Court justice can be a transcendent act—a defining moment that, almost more than any other single decision he will make while in office, establishes his presidency’s legacy. Presidents, after all, only have a limited time in office during which they can devise their social, economic, and political vision and try to shape the future; by contrast, the Justices they appoint to the Supreme Court can and do shape that future for a generation through their judicial votes and opinions.

Of course, luck plays a major and unpredictable part in determining whether a president does reshape the future through his judicial appointments. Such context-bound factors as the number of Supreme Court appointments that a president gets to make, the ideologies of the Justices being replaced and of their replacements (who sometimes can take unexpected jurisprudential turns), and the political make-up of the Senate that passes on those nominations all impose structural constraints on a President’s ability to transform the Court’s ideological stance. Still, when the stars align and a president has the chance to replace three or four Justices whose judicial philosophies he disagrees with, and when the Senate is relatively open to accepting a shift in judicial perspectives (or is constrained to vote based on a nominee’s professional qualifications instead of his or her judicial philosophy), a president may get to reshape the High Court’s jurisprudence and, with it, the nation’s future.

When on January 20, 1969, Richard M. Nixon took office as the thirty-seventh President of the United States, it seemed as if the stars had so aligned. In June 1968, Chief Justice Earl Warren had announced his retirement—but Warren was still on the Court to swear Nixon in, because a successful filibuster by Republicans and conservative Southern Democrats blocked President Lyndon B. Johnson’s nomination of Associate Justice Abe Fortas to succeed Warren, compelling Fortas to withdraw his name from consideration. Early in Nixon’s first term, sensational revelations of Fortas’ financial improprieties led him to resign from the Court in the face of a threatened impeachment. Warren’s delayed retirement and Fortas’ resignation meant that Nixon entered the presidency with the opportunity to appoint two Justices and thus possibly to redirect the Supreme Court’s course away from that defined by the Warren Court. In 1971, following the retirements of Justices Hugo Black and John Marshall Harlan II, Nixon again had two chances to name new Justices to the Court. Given that three of the four departing Justices had been key members of the Warren Court’s liberal wing, these four appointments gave Nixon the chance to remake the Supreme Court in his image.

The newly sworn-in president, in turn, seemed, on the surface, willing and even eager, to take up this task of jurisprudential transformation. Throughout the 1968 presidential campaign, Nixon attacked the Warren Court’s liberal rulings on race, religion, and the rights of the accused. In fact, Nixon often seemed to be campaigning more against the U.S. Supreme Court and its liberal rulings than against his actual opponent, Vice President Hubert H. Humphrey. True, Nixon adopted this anti-Court tactic mainly as an effort to tap into the electorate’s growing discontent over crime in the streets and the wrenching effects of civil rights reforms. Nixon’s target audiences were those whom he called the “Silent Majority”: disaffected Southern whites and the white urban, working classes of the North and the Midwest, all of whom blamed the Supreme Court, among others, for their troubles. Still, Nixon’s animus for the liberal Warren Court was public, vocal, and largely authentic. Nixon’s campaign against the Court thus blended his personal convictions with his keen perception of the partisan advantage to be had from attacking an institution that, because of considerations of judicial propriety, could not fight back.

The stage thus seemed to be set for Nixon to transform the Supreme Court, shifting its focus to the right and ushering in a new era of conservative legal interpretation from “Nixon’s Court.” Yet, somehow, this conservative revolution did not happen. Most scholars who study Nixon’s selections...

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