Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences

By Kevin J. McMahon

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.

• Language: English
• Publisher: University of Chicago Press
• Release date: Sep 19, 2011
• ISBN: 9780226561219

Book preview

KEVIN J. MCMAHON is the John R. Reitemeyer and Charles A. Dana Research Associate Professor of Political Science at Trinity College in Hartford, Connecticut. His books include Reconsidering Roosevelt on Race, also published by the University of Chicago Press and winner of the American Political Science Association’s Richard E. Neustadt Award.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2011 by The University of Chicago

All rights reserved. Published 2011.

Printed in the United States of America

20 19 18 17 16 15 14 13 12 11     1 2 3 4 5

ISBN-13: 978-0-226-56119-6 (cloth)

ISBN-10: 0-226-56119-4 (cloth)

ISBN-13: 978-0-226-56121-9 (e-book)

Library of Congress Cataloging-in-Publication Data

McMahon, Kevin J.

Nixon’s Court : his challenge to judicial liberalism and its political consequences / Kevin J. McMahon.

     p. cm.

Includes bibliographical references and index.

ISBN-13: 978-0-226-56119-6 (cloth : alk. paper)

ISBN-10: 0-226-56119-4 (cloth : alk. paper)

1. United States. Supreme Court—History—20th century. 2. Judges—Selection and appointment—United States—History—20th century. 3. Nixon, Richard M. (Richard Milhous), 1913–1994—Influence. 4. United States—Politics and government—1969–1974. I. Title

KF8742.M353 2011

347.73′26—dc22

2011013603

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Nixon’s Court

His Challenge to Judicial Liberalism and Its Political Consequences

KEVIN J. MCMAHON

Nixon’s Court

FOR BROOKS

Contents

Cover

Copyright

List of Illustrations

Acknowledgments

CHAPTER 1.   Nixon’s Victory: Oppositional Presidents and the Cycles of Supreme Court Politics

PART I.         Circa 1968: Law, Order, and the Race for the White House

CHAPTER 2.   The Fight for the Nomination: Holding On for a Second Chance

CHAPTER 3.   Running to Be the One: Nixon, Divided Democrats, and a Chastened Court

PART II.        The Politics of Desegregation

CHAPTER 4.   Instead of Listening to What We Say . . . Watch What We Do: Electoral Strategies, Practical Politics, and Nixon’s Judicial Policy

CHAPTER 5.   Leading by Following: Nixon, the Court, and the Road to School Desegregation

PART III.       The Dynamics and Difficulties of Remaking the Court

CHAPTER 6.   The Party of Lincoln’s Last Stand? The GOP Divide and the Rejection of Nixon’s Southern Strict Constructionists (or, How Senate Republicans Made the Court More Liberal)

CHAPTER 7.   Fifty-Three Seconds That Shaped the Court: Nixon’s Acceptable Southerner and Accidental Ideologue (or, How Liberals Made the Court More Conservative)

PART IV.       The Political and Electoral Consequences of Supreme Court Decisions

CHAPTER 8.   Fighting Busing, Crime, Smut, and Social Disorder in America: Strong Rhetoric, Selective Action

CHAPTER 9.   Judicial Decisions and the Ballot Box: Nixon’s Court and the Division of the Democratic Coalition

CHAPTER 10. Evaluating the Conservative Counterrevolution through the Nixon/Rehnquist Nexus

Appendix

Notes

Works Cited

Index

Illustrations

FIGURES

6.1          Twenty most Democratic states—1968 presidential election

9.1          Views of working-class whites in the urban North and their perception of the parties’ positions on busing, the rights of the accused, and urban unrest, 1972

9.2          National respondents’ positions on selected social issues and their corresponding support for the major party candidates, 1972

9.3          Views of working-class whites in the urban North and their perception of the parties’ positions on busing, the rights of the accused, and urban unrest, 1976

9.4          National respondents’ positions on selected social issues and their corresponding support for the major party candidates, 1976

TABLES

3.1          African American percentage of population, selected cities

3.2          Nixon’s defeat and victory: Comparing the election results of 1960 and 1968

3.3          By region, states decided by less than 5 percentage points in 1960

6.1          Ideology of senators and votes in favor of unsuccessful Supreme Court nominees

6.2          Party affiliation of senators and votes in favor of unsuccessful Supreme Court nominees

6.3          Votes on Haynsworth and Carswell for Republican senators representing the most Democratic states

9.1          National responses regarding the most important problem facing the nation, 1968, 1972, and 1976

9.2          Views of national respondents and voter groups in the urban North who believed civil rights were moving too fast, 1968, 1972, and 1976

9.3          Voter groups in the urban North indentifying public order and racial problems as the most important national problem, 1968, 1972, and 1976

9.4          Working-class whites in the urban North selecting conservative positions on social issues and their corresponding support for Nixon in 1972

9.5          White voting groups in the urban North supporting the Republican Party presidential candidate, 1960–1984

9.6          Working-class whites in the urban North selecting conservative positions on social issues and their corresponding support for Ford in 1976

9.7          Differences for selected presidential elections in the largest northeastern metropolitan areas and counties containing central cities

9.8          Differences for selected presidential elections in midwestern metropolitan areas and counties containing central cities

A.1          Views of national respondents and voter groups in the urban North and their perception of the parties’ positions on busing, the rights of the accused, and urban unrest, 1972

A.2          Views of national respondents and voter groups in the urban North and their perception of the parties’ positions on busing, the rights of the accused, and urban unrest, 1976

A.3          Nixon, Wallace, and Ford in the Northeast, 1968, 1972, 1976

A.4          Nixon, Wallace, and Ford in the Midwest, 1968, 1972, 1976

Acknowledgments

The process of writing a book can be a long, arduous, and solitary experience. But it can also be tremendously satisfying, especially when there are others willing to discuss ideas and read unpolished drafts of the work at hand. I benefitted greatly from many conversations about my work on the Nixon presidency with friends and fellow scholars, including Renny Fulco, Jim Hurtgen, Gary Jacobson, Tom Keck, Ken Kersch, Chris Kirkey, Shep Melnick, John Murphy, Mary Travers Murphy, Julie Novkov, H.W. Perry Jr., Bobby Ras, Todd Ryan, Steve Teles, George Thomas, John Travers, and Keith Whittington. Several others also read early drafts of a chapter or two, including Graham Dodds, Andy Dowdle, Diana Evans, Mike Fotos, Brad Hays, Will Howell, Ron Kahn, Dan Kirsch, Phil Klinkner, Sandy Levinson, Joseph Lowndes, Lida Maxwell, James Pfiffner, Richard Pious, David Rankin, Gerry Rosenberg, and Bob Spitzer.

My close friends Don Beachler and Michael Paris deserve a special note of thanks in this regard as each read all or substantial parts of the manuscript and were always willing to listen to my ideas and, more important, offer their honest evaluation. Ned Cabot also read the manuscript, both with the eye of a keen observer of the Supreme Court and as someone who participated in some of the early events described within these pages. I also owe thanks to the anonymous reviewers of the manuscript. Their comments were invaluable in helping me to clarify my arguments and incorporate ideas I had initially overlooked.

At the early stages of writing this book, I accepted a new position at Trinity College in Hartford, Connecticut. While moves can be more difficult than expected, I have found a home at Trinity, Neath the Elms. My colleagues in the political science department were very welcoming when I arrived, and have been equally supportive during my time here. I have thoroughly enjoyed participating in the Americanist reading group on campus, a collection of colleagues from American Studies, English, History, and Political Science who are both kind and compassionate in their criticisms of each others’ work. Organized by Lou Masur, the group includes Davarian Baldwin, Jack Chatfield, Scott Gac, Cheryl Greenberg, Chris Hager, Joan Hedrick, Paul Lauter, Gene Leach, Diana Paulin, Ron Spencer, and Scott Tang. I could not have completed my analysis of the National Election Study data in chapter 9 without the significant technical assistance of Rachael Barlow, who heads up the Social Science Center at Trinity with unmatched dedication and enthusiasm. I also benefitted from the work of two excellent research assistants, Liliana Madrid and Stephanie Glover, both Trinity undergraduates. Indeed, I have been the recipient from a great deal of support from the Trinity community, including its president, Jimmy Jones, and its dean, Rena Fraden.

During the early stages of this project, I spent a semester as Fulbright Distinguished Research Chair at the University of Montreal. Teaching about conservatism and constitutional conflicts to a diverse group of graduate students was a wonderful experience for me. A summer stipend from the National Endowment for the Humanities also supported my work on this book. I was fortunate enough to present some of my research at workshops at Harvard Law School (organized by Mark Graber and Mark Tushnet), Princeton University (organized by Paul Frymer), and the Washington College of Law at American University (organized by Lynda Dodd and Robert Tsai). These one- or two-day conversations with some of the top scholars in the fields of public law and American political development were tremendously valuable to me as I worked through my ideas about the book.

I could not have asked for more support and attention from my editor, John Tryneski. John challenged me when it was necessary and, in doing so, helped to improve the book immeasurably. I owe thanks to Rodney Powell at Chicago for answering my many questions in his patient and thorough manner. Copyeditor Therese Boyd deserves high praise for her fine work on the manuscript.

As always, my parents, siblings, nieces, nephews, family members, and friends offered much encouragement and support, although many of them still wonder why it takes me so long to write a book. Those who share the experience on a day-to-day basis, of course, have a much better understanding, living with the trials and tribulations as well as the turning points. Pamela made the tough days far easier and the good days much more cheerful, always with her kindness, friendship, and love. And then there is Brooks, my four-year-old son. Just writing those words brings a smile to my face. His boundless energy and curious mind brighten my days and bring joy to my heart. And for that, I dedicate this book to him.

It does not even reach the surface of his thoughts, he has never had to explain this to anyone—no one has ever said, Tom, why would a fellow want to run a saloon?—but there is no satisfaction in the world like sitting at the front window table with a couple of friends, playing cards, smoking, drinking, watching the street with one eye, the run of tricks with the other, one ear on the gossip of old men, the other on the cash register, knowing that at any moment the door will swing open and that someone you are bound to know—someone who has married your priest’s cousin’s niece, someone who has drunk on the book for years and never missed settling accounts at week’s end, someone busy unionizing in the ward, someone from the Twelfth Precinct, someone back in town from Cattaraugus County or Erie, Pennsylvania, someone wearing a beat fedora and just come from the river with a yellow pike wrapped in the Courier- Express for Freda, scales stuck to the backs of his hands—that someone will walk in with a smile showing, and even if you don’t know him, he’s going to sit down and order a Lang’s anyway, and your very own son, the one who stayed home and didn’t join the Signal Corps in 1940 and settle in New Jersey, will pour it and ring it up while you attend to what is trumps and what the current line of conversation is among these shabby but presentable old men who have anchored your thoughts for twenty-five years to date on this very corner of a great American city.

VERLYN KLINKENBORG, The Last Fine Time

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 was geared less toward constructing a thoroughly conservative Supreme Court and more toward tempering judicial liberalism as a means of dismantling the New Deal Democratic coalition. Second, Nixon’s definition of conservatism with regard to altering Supreme Court doctrine was quite targeted. It was largely designed to address two of the most important concerns of the day, law and order and school desegregation, not to unleash a complete conservative counterrevolution against the Warren Court and the ongoing rights revolution. And even on those two issues, Nixon did not demand total ideological loyalty from those he considered for the high bench. Rather, he sought out conservatives because he thought they would advance the positions most likely to solve the problems at hand. Thus, when liberal senator Ted Kennedy of Massachusetts said in 1971 that the president and the other men who are involved in the selection of Supreme Court nominees . . . remind me of the people who used to put up ‘impeach Earl Warren’ signs on the highways, Nixon angrily dismissed the comment in a private conservation with conservative aide Charles Colson. To Nixon, the fact that Kennedy was saying that he and his closest advisors were a bunch of radical rightists, was unconscionable, a smear of the worst sort.²⁰

With his approach, Nixon thought he would alter the Court’s doctrinal path in the desired areas and simultaneously attract new voters into his electoral fold, particularly white southerners and white—mostly Catholic—ethnics living in electorally rich northern states. Significantly, this partial effort at counterrevolution stemmed largely from his own thinking rather than from obstacles created by his opponents. He simply did not agree with the current conservative positions on some of the most controversial social issues of today, such as affirmative action. On other issues, he may have agreed with current conservative thinking, but he often chose not to act, believing that the time was not right to take the risk. Put another way, given the politically motivated nature of Nixon’s judicial policy, on the nonessential issues his administration sometimes took conservative positions, sometimes moderate positions, and sometimes no position at all.

I refer to this favoring of electoral pursuits and practical solutions over ideological ends with regard to presidential judicial policy as Nixon’s template.²¹ In contrast, Nixon’s conservative successor in the White House, Ronald Reagan, tended to highlight a template of a different ordering. Of course, Reagan did not ignore the realities of electoral politics. However, I suggest that he and his close advisors—particularly in his second term—came to believe that the conservative political movement had developed sufficient strength to support a full-fledged conservative attack on the Court.²² In line with this movement template, the Reagan administration displayed a keener—although hardly consistent—commitment to undermining the Court’s liberal decisions than its predecessor.²³ The Nixon administration operated with no such political certainty or ideological commitment, producing on the part of the president a built-in caution about seeking the extreme. This clash of templates had significant consequences for the construction of a conservative Supreme Court, consistently frustrating those most eager to see one. Nevertheless, on those issues in his scope, Nixon witnessed much of the doctrinal shift he had hoped for, even if some of the changes arrived after his Watergate-shortened presidency ended. Put another way, in time the Nixon-shaped Burger Court largely adopted the general approach—if not the specific positions—his administration advanced on law and order and school desegregation.

Much of this book, then, is about how all this came to pass, about how Nixon maneuvered within the politics of the time to help construct a high Court that delivered the doctrine he desired on the issues that mattered most to him. Given Nixon’s intentions, however, it is insufficient to limit an analysis of the ultimate impact of his judicial policy to the development of constitutional doctrine, to a review of the significant Supreme Court opinions in a legal casebook. It is also essential to examine the effect this policy and the corresponding Court decisions had on the state of American politics.

With an eye on Nixon’s southern strategy, several scholars and commentators have sought to show how his appeal to white voters via criticisms of the Supreme Court helped to drive the Republican surge in the third part of the twentieth century, especially in the South.²⁴ Fewer have examined how working-class white ethnics living in the urban North, those who would later earn the Reagan Democrat tag, fit into Nixon’s formula for achieving majority status for the GOP.²⁵ In assessing the electoral success of Nixon’s judicial policy, I consider his appeals to both the South and the urban North, but I focus on the latter. It was an appeal that highlighted Nixon’s positioning on the social issues and promised that Americans could return to a time when all was right with the nation.

Eddie Wenzek would have been one of Nixon’s targets, a single member of a silent majority. His story is wonderfully recounted by Verlyn Klinkenborg in his book, The Last Fine Time. When first told about the idea for a book centered on his life, Eddie was amazed, because—as he put it to me—I was just a nobody.²⁶ Indeed, I begin this book with a segment of Eddie’s story because he symbolizes the white ethnics of the urban North who were a focus of Richard Nixon’s social-issue campaign, silent nobodies promised a voice in the White House. To assess Nixon’s success in using his criticisms of the Court to attract such nobodies into his New American Majority, I chart the political path of these voters, many of whom moved from the city to the suburbs—from street corner to cul-de-sac—in the 1950s and 1960s. I do so largely by examining voting behavior of working-class white ethnics in the urban Northeast and Midwest. Also, to the extent possible, I explore how Supreme Court politics factored in their election day decisions. This, then, is a study of political elites—their words and deeds—and those whose votes helped make them so.²⁷

A Theory on the Cycles of Supreme Court Politics

In considering the electoral impact of Nixon’s judicial policy, I draw on a scholarship that explores the political supports of Supreme Court action. In these regime politics studies, scholars have shown that Supreme Court decisions are not simply products of nine independent thinkers walled off from the world, but rather byproducts of the dominant political coalition that put the justices in place.²⁸ This is not to say that the justices are mere pawns in a larger political struggle, but it does suggest that their significance has been overemphasized in past analyses of doctrinal shifts. To date, however, regime-politics scholars have focused most of their attention on understanding how the political and electoral alignment of the times shapes Supreme Court decisionmaking. They have paid little attention to analyzing the impact of judicial rulings on the regimes themselves, on understanding the political consequences of successful judicial policymaking. Here, I explore this side of this arrangement, considering how certain Court rulings expressing the dominant coalition’s commitments may expose the weaknesses of that alliance by exacerbating its internal tensions, its splits and tears. Put another way, this theoretical path considers not the failure of success, but the difficulty—and potential inability—of managing it, thereby suggesting a cycle of Supreme Court politics.

After all, decisions advancing coalitional interests have at times presented avenues for opportunistic opposition politicians to undermine the existing regime, especially an aging one. Consider, for example, the Dred Scott v. Sandford decision of 1857, which represented the expressed wishes of leaders of the dominant Democratic Party who sought to steer a disruptive partisan fight into safer legal channels. It didn’t work. Instead, "in the hands of Abraham Lincoln and other Republicans, Dred Scott merely became one more weapon that could be wielded to annihilate Jacksonian party politics."²⁹ In the 1930s the Court once again sought to give voice to a political regime in sharp decline, attempting to restore legitimacy to a governing philosophy sapped of its authority by the ravages of the Great Depression. In turn, Republicans largely defended the Court’s decisions that struck down much of the first New Deal in hopes of both undermining Franklin D. Roosevelt’s presidency and taking back the White House. While FDR largely kept quiet on Court matters during the 1936 campaign season, his views on the justices’ recent decisions were quite well known.³⁰ And when voters took to the polls that election day, they ensured in historic terms that the brand of judicial decisionmaking long practiced by the Court had run its course.

The decisions Nixon challenged were of a slightly different nature. Moreover, Nixon did not possess the political authority of an Abraham Lincoln or a Franklin Roosevelt. He could not bring about an end to a style of judicial thinking in the space of a few years. Still, he was able to achieve significant success in his own right. In focusing my attention on his presidency, I explore why. Specifically, I consider his strategy of employing criticisms of the Court as a device to destabilize the political alliance its decisions represented. My interest in this line of research stems from an observation about the political consequences of the Court’s historic 1954 Brown v. Board of Education decision. Consider the following: Nine years after Franklin Roosevelt’s death, the Supreme Court—with all but one of its members appointed by either FDR or his chosen successor, Harry Truman—announced its Brown decision. Of course, Brown was just the beginning for the Warren Court. Over the next decade and a half, it would issue a wealth of rulings that advanced the general interests of the New Deal Democratic coalition. With these decisions, as political scientist Martin Shapiro suggests, the Court followed the election returns but did not act in a directly election-oriented way. Writing in 1978 Shapiro noted, Few American politicians even today would care to run on a platform of desegregation, pornography . . . and the ‘coddling’ of criminals. Instead, the Court got away with its decisions because they were in support of the winners not the losers of American politics.³¹ Put more precisely, they represented the values of the dominant members of the governing political order.

Protection from the brutality of the electoral process, however, may not endure. After all, in the end, the Court does not act alone. If its decisions are to be implemented, if they are to endure, they will need their defenders, especially if they become campaign concerns. Elite members of the ruling national coalition will necessarily fill this role, most often on the campaign trial or in the midst of a confirmation fight. If no one rises to defend the Court’s actions, opposition politicians will likely have their way, for the justices are typically limited to articulating their reasoning for reaching a particular ruling to the printed page of a Supreme Court opinion. Given this, unpopular decisions specifically and disliked doctrine generally will have electoral consequences. More precisely, in the long run they will shake the stability of the national coalition, as opposition politicians expose the weaknesses of the ruling order.

Consider, for example, how the Brown decision ignited a firestorm within the Democratic Party as southern Democrats struggled to understand how a Supreme Court packed with so many of their fellow partisans could issue a ruling so hostile to their interests. Indeed, as the decision helped spring civil rights onto the nation’s political agenda, its shockwaves shook the core of the party for more than a generation. While the liberal northern wing of the party gradually rallied to support the Court, conservative southerners, hoping to seize an opportunity to both affect public policies that most interested them and undermine the political party that had seemingly betrayed their desires, began to consider the alternatives. In turn, they joined forces with a Republican Party that had been effectively locked out of the South after Reconstruction’s end. Some of them remained Democrats but often agreed with Republican policies and principles. Others, like South Carolina senator Strom Thurmond, joined the GOP, moving—as journalist Don Oberdorfer put it—from Democrat to Dixiecrat to Nixiecrat.³² In short, one of the consequences of the Brown decision—coupled with the Democrats’ increasing advocacy of civil rights—was the rise of the Republican South.

While the 1964 elections suggested that the Democratic Party could survive—even thrive—in a post-Brown world, the results of the 1968 presidential contest raised anew the question of whether the party’s long dominance was nearing an end. Significantly, during that election, judicial issues reached their apex of political saliency as Richard Nixon and George Wallace attacked the Court’s decision to reenter the desegregation debate and to rewrite the criminal code. The Democrats did not fare well as a result.³³ In fact, the conversation of the campaign and the election returns beg the question of whether Republicans had much to do to undermine the New Deal coalition or if the liberalism articulated through the Warren Court’s decisions had largely accomplished that task for them—that Republicans were the great beneficiaries of the public’s opposition to the Court’s chosen constitutional course.³⁴

I suggest the answer lies somewhere in between. While the Warren Court certainly provided opportunities for judicial-based attack on liberalism’s regime, the Democratic Party’s path was not predetermined. In fact, after losing the White House in 1968, many Democrats moved noticeably to the center on some of the most salient social issues of the day, leading conservative Nixon aide Patrick Buchanan to write to the president in late August 1970, We can no longer count on our democratic friends to co-operate in their own demise—as they have in recent years. . . . We are no longer going to win the race for Middle America by default. In the margins of the memo, the president wrote, right.³⁵ In turn, I suggest it took opportunistic politicians like Richard Nixon to help exacerbate the divisions within the New Deal coalition, not only in the South but in the urban North as well. Put another way, it took someone like Nixon to convince those Democratic voters who felt ignored by their party’s leaders that they could find their political home in the GOP. Nixon, as I explain in the next chapter, was also the best situated of the three main contenders for the Republican presidential nomination in 1968 to accomplish this task, unburdened by either Nelson Rockefeller’s commitment to liberalism or the risk of Ronald Reagan’s Goldwater-like insurgency from the right.

Inspired by his success in that election, Nixon maneuvered during the course of his presidency to alter the Court in hopes of making it work for him. I argue that Nixon was profoundly successful in helping to construct a conservative coalition that not only dominated presidential elections for a generation but also altered the politics in the streets of the cities and towns across America. Specifically, I show how Nixon sought to re-shape American politics by promising to reconstitute