Washington: The Nixon Court

Nothing Richard Nixon does, if he is reelected for four more years, is likely to be more important than the appointments he makes to the Supreme Court. Barring unforeseeable domestic or international upheavals, no other actions he might take would have as profound and lasting consequences. The impact of Supreme Court justices outlasts that of the Administration which appoints them. Unlike the President or members of Congress, they are not subject to electoral approval, but serve until death or retirement. Their rulings are, by the nature of the judicial process, less susceptible to change than are the laws of the Congress or the administrative actions of the executive branch. The very purpose of the Court is to act as a counter to immediate popular will and pressures. It was designed so as not to be accountable to the people at any given time. It was intended to serve as a check on the actions of the legislative and the executive branches.

The Supreme Court has already undergone a sea change as a result of the four appointments that President Nixon made to it in his first term. Because of the advanced age and poor health of several of the current nine justices, it is possible that as many as four more could be named to the Court over the next four years.

There can be little question concerning the nature of the appointments that Mr. Nixon would make. He has fulfilled his campaign pledge of 1968 that his nominees to the Court would share a conservative philosophy, and he has promised that if he is reelected, this policy will be continued. Whatever skepticism is due campaign promises in general, there is no reason to doubt Mr. Nixon’s word on this particular subject.

It is risky to speculate about how Supreme Court justices might rule on any given question. Nevertheless, the consistency of Mr. Nixon’s appointees has been such that some hypotheses can be made about the consequences of his having the opportunity to name more. For example, it is reasonable to speculate that if Mr. Nixon had made one more appointment during his first term, the death penalty would have been retained. The present Court, with the addition of one Nixon appointee, might have suppressed the Pentagon Papers. Moreover, the Court was closely divided on many other major issues.

“Peace forces”

Mr. Nixon describes the effect he wants to have on the Court as strengthening the “peace forces as against the criminal forces.” The direction of the Warren Court toward broadening the rights of the accused has been reversed, and some of the previous Court’s decisions have been substantially modified. But Mr. Nixon’s appointments have also had important effects in affirming the power of the government over individuals, as well as its investigative powers. The new Court restricted the scope of the remedies for minorities seeking their civil rights. It has also begun to take a more circumspect approach to government regulation of business.

One of the most striking things about the Court is the frequency with which the Nixon appointees—Chief Justice Warren E. Burger, and Justices Harry A. Blackmun, William H. Rehnquist, and Lewis F. Powell, Jr.have voted together. According to the Harvard Law Review, of the seventy cases in which all nine justices participated, the Nixon appointees voted together in fifty-three. Moreover, in unusual unanimity for four justices, they joined in one opinion in forty-five of those fifty-three. Blackmun voted so often with Burger, his old friend from Minnesota, that Court reporters dubbed the pair the “Minnesota twins.” So fundamentally has the ideological balance of the Court changed, that Justice Potter Stewart, generally regarded as a “conservative” on the Warren Court, is now one of the “liberals” on the Burger Court, frequently aligned with Justices William O. Douglas, Thurgood Marshall, and William J. Brennan, Jr. Byron White, a Kennedy appointee and no liberal, was often in the position of casting the “swing” vote. And this change came about amidst great turbulence surrounding the Supreme Court.

It all began, it is worth recalling, when Lyndon Johnson decided to dispatch Justice Arthur Goldberg to the United Nations and to replace Goldberg on the Court with the President’s close friend, Abe Fortas. When, in June, 1968, Chief Justice Earl Warren notified President Johnson that he wished to retire, the President decided to promote Justice Fortas to Chief Justice and name Homer Thornberry to Fortas’ seat. Thornberry, also a friend of Johnson’s, a federal court judge and former congressman, is one of the nearly forgotten footnotes of the recent stormy history of the Court. The proposed Fortas elevation became suspended amidst crossfire stirred by Fortas’ own record and activities while on the Court, his relationship with the President, Lyndon Johnson’s sinking prestige, and election-year politics.

Fortas was expected to continue to lead the Court in the ideological direction of Warren. At the same time, Richard Nixon was running for the presidency, and the Warren Court was one of his issues. “I believe in a strict interpretation of the Supreme Court’s functions,” Mr. Nixon said in the course of the campaign. “In a sense this means I believe we need a Court which looks upon its function as being that of interpretation, rather than of breaking through into new areas that are really the prerogative of the Congress of the United States.” The implication was that Nixon appointees would take a less expansive view of the role of the Court in the areas of crime and race. Nixon suggested that the decision to replace the Chief Justice should await the outcome of the presidential election. A combination of Southern Democratic and Republican opposition forced the withdrawal of Fortas’ nomination to be Chief Justice. Fortas remained an associate justice, and Warren postponed his retirement until after the election. So much for Homer Thornberry.

Shortly after Richard Nixon’s election to the presidency in 1968, Life magazine’s disclosure that Fortas had, while on the Court, accepted a fee from Louis Wolfson’s foundation led to Fortas’ resignation from the Court. (The painful Fortas story and its impact on the Court’s recent history is superbly told in Robert Shogan’s book, A Question of Judgment.) Shortly afterward, President Nixon named Warren Burger to replace Earl Warren. His first nominee to replace Fortas was Clement Haynsworth. Upon his rejection by the Senate, the President nominated G. Harrold Carswell; and upon his rejection by the Senate, Burger’s old friend Harry Blackmun was nominated.

In September, 1971, Justices Hugo Black and John Marshall Harlan, both ill, resigned from the Court. The Nixon Administration floated the names of several people, of whom it was seriously considering four: Congressman Richard Poff, Republican of Virginia, a conservative, who had practiced law for only four years; Senator Robert Byrd, Democrat of West Virginia, a former member of the Ku Klux Klan, who hadn’t practiced law at all; Mildred Lillie, a controversial California state judge; and Herschel Friday, a bond lawyer who had represented the Little Rock, Arkansas, school board in its efforts to resist school desegregation. But all four were shot down by the American Bar Association and others in the legal profession. The Administration announced that the ABA would not be consulted in the future. The President finally settled upon Lewis Powell, a respected Virginia attorney, and William Rehnquist, a bright and very conservative official of the Justice Department. (All of this had its effect on the human beings who were at the time on the Court. Nina Totenberg of the National Observer, who has a fine eye for such things, reported during the uproar over the President’s putative nominations: “The Supreme Court Justices reacted too. Justice Harlan, often described as the Court’s conservative conscience, was so outraged that he seriously considered writing the President a letter of protest from his hospital bed. The seven active Justices were extremely perturbed. Even the more conservative Justices began wondering aloud whether the President was trying to ‘denigrate the Court.’ One liberal Justice read some of Judge Lillie’s opinions that night, and promptly got drunk.”)¹

The concept of judicial conservatism cuts two ways. Judicial conservatives do not consider the courts proper instruments for expanding social, political, and individual rights, as the Warren Court did; but neither are true judicial conservatives quick to strike down previous court decisions. There is thus a potential internal conflict, one that presents itself on questions of overturning prior liberal decisions.

Turnabout

The Burger Court’s solution to this dilemma in dealing with two of the most controversial Warren Court decisions (Miranda and Wade) has been not to overturn them explicitly but to limit their scope. It is often some time before the practical effect of many court decisions, including these, can be determined. But some constitutional lawyers believe that the Warren decisions remain in form only, their substance largely negated. The Burger Court may have found a way, in other words, of overturning decisions without overturning them.

In Miranda v. Arizona, the Warren Court had held that no statement made by an arrested suspect could be used against him in court unless he had been told of his rights to remain silent and to have a lawyer. In 1971 the Burger Court ruled that such confessions could be used to contradict the testimony of an accused person who takes the stand in his own defense. This leaves a defendant who has confessed without having been advised of his rights the option of not testifying in court. It is widely agreed among lawyers that juries often suspect that a defendant who does not speak in his own behalf is hiding something.

In Wade, the Warren Court had held that suspects had a right to counsel at police lineups. The Burger Court restricted this protection, holding that it applied only after indictments had been made. Since most lineups occur before indictment, this decision, in the view of several court observers, effectively negated Wade while claiming to uphold it. The Nixon appointees showed more inclination than did their predecessors to excuse as a “harmless error” a violation of a constitutional guarantee in the course of a prosecution. When the Supreme Court signals a change of attitude of this sort, lower court judges take note.

The Court also held that state juries need not be unanimous in order for a defendant to be found guilty. This would reduce the burden on prosecutors, and diminish the number of trials that end with hung juries. Unanimous jury verdicts have always been required in federal trials. The Warren Court and its predecessors had held in a number of decisions that the Bill of Rights applied no less to the states than it did to the federal government. The result of the Burger Court’s ruling was that the right to a unanimous verdict of guilty did not apply to those being tried in state courts. Four of the justices also said that they did not believe that there was a constitutional right to unanimity in state or federal courts. (This view was taken by three of four Nixon appointees—Powell excepted— and White.) The addition of one more justice who shares this view could also eliminate the requirement of unanimous verdicts in federal trials.

Wiretapping

There are now pending before the Supreme Court some cases that could have still greater impact on the legal protections of the accused. One would circumscribe the opportunities for those who had been convicted in state courts to turn to the federal courts (habeas corpus) on the grounds that their constitutional rights had been denied. Another has to do with the concept that illegally obtained evidence cannot be used in trials. This “exclusionary rule” has been in effect for over fifty years. It is described, depending upon one’s point of view, as “policing the police” or “handcuffing the police.” There is a case before the Court that would narrow its scope; and Burger, in a highly unusual action for a justice, has urged the Congress to write legislation which would practically eliminate the rule. The Justice Department and the new Director of the FBI, L. Patrick Gray, are also urging that the exclusionary rule be relaxed. If it is, through either legislative or judicial action, this would be a major turnabout in the area of criminal law.

Not all of the decisions of the Burger Court have come down against the accused. It expanded the right to free counsel to cover lesser crimes, and strengthened the rights of prisoners and the criminally insane. And it abolished the death penalty, 5-4.

In most instances where the Burger Court considered broad questions of the power of the government over individuals, it ruled in favor of the government. The major exception was its rejection of the Nixon Administration’s assertion of the right, without having to seek a court order, to wiretap those it suspects of domestic subversion. The vote on the wiretapping decision was 8-0. (Rehnquist, having been an official of the Justice Department which fashioned the policy, did not participate. He was not, however, always so punctilious.)

While the decision pleased civil libertarians, it did not give them cause for unrestrained rejoicing. It is widely believed among students of the Court that the justices were not really unanimous, that Burger and Blackmun went along with the majority when they found themselves on the losing side. Moreover, the decision did not say that the government could not wiretap those it suspected of domestic subversion; it said that the government could not do so without getting a permit from a judge. The government does not ordinarily have difficulty in finding judges who can be persuaded to accede to such requests.

The Justice Department’s contention that internal security matters are too complicated for judges was an affront to the judiciary. “If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court,” wrote Justice Powell for the majority, “one may question whether there is probable cause for surveillance.” Moreover, wrote Powell, “the price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.”

Yet one week later, the Court ruled that military surveillance could not be challenged by its civilian subjects simply on the grounds that it discouraged dissent. The Court held that the challengers would have to show that the surveillance had harmed them in some more concrete way. Justice Burger, writing for the majority, said that otherwise such challenges would make federal courts “virtually continuing monitors of the wisdom and soundness of executive action.”

In other decisions, the Court affirmed and expanded the government’s investigative powers. The Court held that the doctrine of congressional immunity did not protect Senator Mike Gravel, Democrat of Alaska, or his aides from having to tell a grand jury how they acquired and arranged for the publication of the Pentagon Papers. Justice White, writing for the majority, said that the senator’s revelation of the Papers was not in connection with a legislative act, and therefore not immune. Some argue, nevertheless, that the decision opened the way for grand jury inquiries into the manner in which members of Congress come by information which the executive branch considers damaging to itself.

The right to publish

On the same day that it ruled on the Gravel case, the Court also held that journalists had no right under the First Amendment to refuse to provide grand juries with information given them in confidence or the names of confidential sources. In a dissent in which he was joined by Justices Brennan and Marshall, Justice Stewart said that the action of the Court “invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of the government.” He wrote that the right to publish had to include the right to gather news and to maintain a confidential relationship between a reporter and his source.

But the dissenters did disagree over the extent to which the First Amendment protects journalists. Stewart outlined some circumstances under which a reporter might be subpoenaed; Justice Douglas, in a separate dissent, argued that a reporter “has an absolute right not to appear before a grand jury.” (Justice Rehnquist participated in the decisions on newsmen’s immunity, the Gravel case, and army surveillance, despite the fact that they involved policies he helped to fashion or defend while a Justice Department official. In all three cases, his vote broke a tie, providing a 5-4 decision. Rehnquist’s involvement in these cases might be improper under a new ABA code adopted, as it happens, in the wake of the Fortas controversy. Some attorneys think that his action was in violation of the old code as well. The Court has been asked to rehear two of the cases on the grounds that Rehnquist should not have participated.)

In another decision, the Court narrowed the immunity from prosecution which must be granted a witness who is compelled to testify. Previously, it had been held that the constitutional right against self-incrimination required immunity from any prosecution for the crime which the testimony concerns. The Burger Court permitted prosecution, as long as the testimony or evidence derived from the testimony was not used. Critics of this decision argued that a prosecutor would find ways of using the testimony without appearing to do so.

The decision of the Court to permit publication of the Pentagon Papers was made in 1971, before Powell and Rehnquist joined the Court. It was, as has been noted, less than a total victory for the newspapers (see “Paper Victory” by Charles Rembar in the November, 1971, Atlantic). In the course of stating that publication could proceed, a majority of the justices indicated that there were circumstances under which they would approve government suppression of news. Moreover, since newspapers did, on the order of a lower court, suspend publication of the Pentagon Papers until the Supreme Court ruled, the precedent was established that the government could temporarily restrain publication of certain information by newspapers.

A Court decision that certain political pamphlets could not be distributed at shopping centers was attributed by some Court observers to the Court’s increased sympathy for the interests of business. This decision was written by Powell and based on the concept of private property. Powell also wrote two other decisions in which the Court, as it very rarely has, ruled against the government in tax cases. The Court is now believed to be so closely divided on questions of antitrust and consumer rights and the powers of regulatory agencies that the addition of one more justice inclined to rule for business would bring about a historic turnaround in this area. It would, in the view of some, usher in an attitude on the part of the Court that has not been in evidence since the New Deal.

In the area of civil rights, the next appointment could be crucial. In June of this year, the four Nixon appointees dissented from a Court decision that a small Southern town, Emporia, Virginia, had violated the Constitution by establishing its own school district so as to avoid countywide desegregation. The 5-4 decision was the first school desegregation case in which the Court divided in the eighteen years since it held state-enforced segregation of schools unconstitutional. In another decision, the Burger Court held that a private club, in this case a Moose lodge, is not obliged to desegregate simply because it holds a state liquor license. The Court held, by a 6-3 vote, that liquor licensing does not constitute the sort of state involvement with private conduct that imposes a constitutional duty not to discriminate. Some civil rights lawyers also believed that the licensing power was a tenuous basis for requiring desegregation.

The Court also limited the recourse, under the voting rights law, for blacks to challenge plans for reapportionment of Southern state legislatures. In earlier decisions, the Court had indicated that it was more reluctant than was the Warren Court to intervene in reapportionment cases. On the other hand, it has upheld legislation requiring equal employment opportunities.

It is difficult to foretell how the Court will proceed on the issue of busing. The issue will be before it as a result of lower court decisions, and, perhaps at a later time, as a result of legislation by the Congress. The Court upheld busing in a unanimous opinion written by Chief Justice Burger in 1971. However, Mr. Burger subsequently appended to a routine order—the sort that is usually handed down without comment—a statement giving his own view that the busing opinion should not be interpreted too broadly by lower courts. The Congress is considering antibusing legislation which would, among other things, reopen old court decisions. If it is enacted, it may well be upheld. The Burger Court appears less inclined than previous ones to overrule congressional legislation.

It is possible to read too much into the decisions of a single term, yet some important changes of outlook on the part of the Supreme Court already seem clear. These could be still more pronounced if additional justices are named who share the philosophy of the four most recent appointees. There would be exceptions, of course, but the Supreme Court might then be expected to take a series of positions that could have profound effects on our national life: While constitutional rights would be maintained in principle, the remedies available to individuals making claims under those rights might be narrowed or even denied. There might be greater reluctance to overturn the actions of either the executive branch or the Congress, even when they are responding to popular passions. At a time when popular passions are running high, the question could arise as to whatever happened to checks and balances.

-ELIZABETH DREW