Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences (review)

A common narrative about the Nixon presidency is that President Nixon failed to produce a conservative counter-revolution reversing the liberalism of the Warren Court. McMahon’s new book challenges this narrative by questioning its premise. Conceding that the conservative transformation of the Supreme Court under the Nixon presidency was limited, McMahon takes issue with the claim that the primary goal of Nixon’s policy toward the judiciary was to wage a counter-revolution. McMahon’s alternative and unconventional reading argues that Nixon’s judicial policy—that is, his approach to judicial appointments and to key constitutional issues—focused largely on generating electoral success, not conservative counter-revolution. Politics and pragmatism, rather than ideology, were the defining forces behind Nixon’s judicial policy, and Nixon’s so-called “failure” to dismantle the constitutional doctrine of the Warren era must be judged and re-evaluated in light of his actual goals.

Nixon’s approach to the Supreme Court, McMahon submits, has been “misunderstood and misjudged” because scholars and commentators emphasize Nixon as staunchly conservative while downplaying Nixon as moderate (5). These observers typically focus on Nixon’s strong conservative rhetoric, his campaign strategy to reverse the Warren Court’s liberal activism, and his conservative selections for the bench, including Clement Haynsworth, G. Harrold Carswell, and William H. Rehnquist. At first glance, these observers seem to be correct in assessing Nixon’s judicial strategy as ultimately failing to produce a revolution. A different picture emerges, however, once account is taken of Nixon’s moderate actions with respect to constitutional policy and litigation; his nominations of Warren Burger, Harry Blackmun, and Lewis Powell; his retention of Erwin Griswold as solicitor general; and the political context in which his choices and actions were made.

Presenting this detailed and compelling account, McMahon portrays a president whose words espoused conservative ideology but whose actions were guided largely by caution, pragmatism, and moderation. In addition, by comparing Nixon’s conservative judicial nominations with his more moderate choices, McMahon exposes the political and electoral drivers behind all of the selections. Throughout, McMahon emphasizes Nixon’s ambition to bring new voters into the Republican party, highlighting not only the commonly noted “southern strategy” of building a Republican base among southern conservatives but also Nixon’s often-downplayed efforts to appeal to white, working-class, ethnic social conservatives in the North—that is, to future “Reagan Democrats.” Assessing the electoral accomplishments of Nixon’s judicial policy, McMahon concludes that Nixon deserves far more credit than he receives, at least in terms of his goal of constructing a new and enduring Republican coalition.

Nixon’s Court offers a rich and nuanced chronicle. McMahon is at his best when analyzing the politics of Nixon’s judicial nominations. He makes a strong case—especially in the context of these nominations— that Nixon’s political and electoral interests carried more weight than his ideological commitments. McMahon is less convincing in challenging those scholars who characterize Nixon’s presidency as “erratic,” “vacillating,” and “consumed by his paranoia” (66). Though McMahon reveals ideological cleavages and illuminates electoral imperatives, he does not displace the lingering impression of a president whose policies were at times “defined more by their incoherence and chaotic nature than by anything else” (66–67).

Also less convincing is McMahon’s analysis of Nixon’s response to Roe v. Wade. According to McMahon, the administration’s inaction on abortion and the president’s indifference to limiting or reversing Roe provide support for the argument that Nixon did not strive for conservative counter-revolution: “[A] more ideologically committed president might have tried [to challenge Roe] in order to make a point to the public or to his electoral base if not to win before the high Court. After all, even though it knew the justices were unlikely to comply, the Reagan administration nevertheless repeatedly asked the Court to overturn Roe. During Nixon’s time in the Oval...