THE WARREN COURT’Scampaign to ensure equal rights and due process—to criminal suspects, to members of minorities, to voters, to dissident voices, to people of faith or no faith—continued unaffected by Arthur Goldberg’s resignation, in June 1965, to become the U.S. ambassador to the United Nations. There was only one man President Lyndon Johnson would consider for the opening—his close friend and adviser Abe Fortas. The youngest son of a Jewish cabinetmaker in Memphis, Fortas went to Yale where he became editor-in-chief of the law review and protégé of William Douglas, whom he followed to Washington. In 1942, the precocious New Dealer became, at the age of thirty-two, under secretary of the interior. After the war, he cofounded what became one of the capital’s best-connected law firms. Fortas relished his role as a consummate insider and confidant to powerful men—none more powerful than Lyndon Johnson. He was reluctant to give it up for the Supreme Court, but Johnson would not take no for an answer. “He’s going to wear him down,” Goldberg told his clerk. “He’ll wait until the end of time.” On the court, Fortas followed in Goldberg’s footsteps as the fifth vote for the liberal majority.
The promise of equality held out by the Warren Court became, for the first time in American history, embodied on the bench itself with Lyndon Johnson’s next appointment, to fill the seat vacated by Tom Clark in 1967. Thurgood Marshall may already have had more influence on American constitutional law as an attorney than he would later as an activist justice on the Supreme Court. Born in Baltimore to middle-class parents, Marshall was an exceptionally bright student in school and college but knew that, even so, the University of Maryland Law School would not admit blacks. He instead attended law school at Howard University, graduating first in his class in 1931. At Howard, he met black activists who were building the legal foundation for assaults on pervasive discrimination.
After becoming counsel to the Baltimore branch of the NAACP, Marshall began long trips through the South, stopping off in small dusty towns to meet some of the most destitute blacks in America. A tall, gregarious backslapper, he quickly made friends as he inspected the impoverished schools where African-American children were segregated and assessed local voting rights—or the lack thereof. Promoted to special counsel for the NAACP at its New York headquarters, Marshall began extensive litigation of civil rights cases emerging from the racist towns he had visited.
Throughout these years, Marshall faced the seething issue of whether black leaders like himself should fight for equality through the judiciary, with lawsuits challenging segregation in transportation, education, labor, public facilities, and the armed forces, or through civil disobedience—lunch-counter sit-ins, boycotts, mass protests, action in the streets—in order to provoke the political branches into enacting civil rights. Inevitably Marshall and the NAACP, with their pursuit of justice through the courts, came into conflict with Dr. Martin Luther King, Jr., the spokesman and strategist for non-violent direct action. Marshall chose to carry on his kind of protest, establishing legal landmarks and providing the courts with the ideas and methods to rewrite constitutional law, most notably in Brown. He was just the kind of activist—militant but operating through established channels—that Lyndon Johnson admired. In 1965, LBJ named him the first African-American solicitor general, then in 1967 he nominated him to become the first African American on the Supreme Court. The Senate confirmed him, 69-11.
For Johnson this was a crucial act of transforming leadership at the climax of the civil rights struggle. But Johnson’s next move did sharp and enduring damage to that and other liberal causes. In June 1968, the president received a letter from the chief justice that declared Warren’s intent to retire, “effective at your pleasure.” Warren said he was not ill or unhappy in the job. The only reason he gave was his age, but, though he never acknowledged it, the real explanation was the likelihood that his old nemesis in California Republican politics, Richard Nixon, would be elected president in November 1968. Warren wanted to thwart Nixon and ensure the appointment of a successor who would continue his activist legacy.
Johnson, by then a lame duck, was eager to secure his own legacy. He turned immediately to the man he had put on the court three years before and who had, while on the bench, continued to act as his valued adviser, Abe Fortas. Elevating the associate justice would give Johnson a second seat to fill. Rejecting advice to pair Fortas with a nonpartisan Republican, the president chose Homer Thornberry, a Texas judge of little distinction apart from his close, decades-long association with LBJ.
Even before an announcement could be made, aroused Republicans, who like Warren expected Nixon to take the presidency, mobilized to fight tooth and nail to block the nominations. Southern Democrats were little more welcoming, and when Fortas became the first nominee for chief justice to testify before the Senate Judiciary Committee, they used the opportunity to lambaste the Warren Court’s record on race and “law and order.” More harmful were Fortas’s repeated denials that he had continued to advise the president while on the bench, though White House logs showed dozens of face-to-face meetings, and the justice had on the desk in his office a red telephone with a direct line to LBJ. After four damaging days, the committee dismissed Fortas and the Senate adjourned for the summer. During that break came the revelation that Fortas had, while a justice, received a $15,000 lecture fee that was raised from clients of his old law firm. When the Senate reconvened in September, opponents staged a six-day filibuster, and after a motion for cloture failed, Fortas asked the president to withdraw his nomination. Johnson agreed, “with deep regret.”
LBJ had seized at an opportunity for a “two-fer” that would have assured liberal domination for years into the future—and had come away with nothing. Even worse, the furies would continue to pursue Fortas until, within a year, new scandalous revelations that he had taken money from a convicted stock manipulator would drive him off the bench.
After Fortas’s withdrawal, on October 10, 1968, Johnson issued a statement that Earl Warren “has indicated his willingness to serve until his successor qualifies.” The president also announced that he would not “send another name to the Senate for this high office.” Earl Warren’s resignation would become effective at the pleasure of Richard Nixon.
CHAPTER ELEVEN
Republicans as Activists
WHEN RICHARD NIXON tapped Warren Burger for chief justice of the Supreme Court in the spring of 1969, he launched the pick with a hastily summoned press conference to explain how high-minded his search for Earl Warren’s successor had been. He told reporters that he had not cleared the nomination politically—“the Supreme Court must be above politics,” he declared. He would not consider racial, religious, or geographical balance. He would not pick a crony like his attorney general, John Mitchell. He named other men he would not appoint—two-time GOP presidential nominee Tom Dewey, because he was too old; Justice Potter Stewart, because promotions from within rarely succeeded; Herbert Brownell, because of his “controversial” service as Eisenhower’s attorney general.
What kind of person, then, would Nixon select? A leader, he said—someone like Stone or Hughes or even Warren himself. The president singled out Felix Frankfurter as the kind of “strict constructionist” he wanted on the court—a judge who would “be very conservative in overthrowing a law passed by the elected representatives of the people.”
Reporters rarely had seen Nixon so enjoying himself, as he preached appointment ethics while settling various political scores. It was a bit difficult, though, to connect his lofty tests of leadership with the man he was proposing for the Supreme Court’s center seat. Warren Burger was hardly a Marshall or Warren or even a Stone. Born of a Swiss immigrant family in St. Paul, Minnesota, in 1907, Burger spent much of his childhood helping his father run a truck farm on the outskirts of the city. His athletic and scholarly achievements won him a Princeton scholarship, but one not large enough to live on, so he attended the University of Minnesota and then the St. Paul College of Law. As a young attorney, he became a Re
publican activist and in 1952 backed Eisenhower against Taft in the fight for the GOP presidential nomination. The next year he joined the Justice Department as an assistant attorney general, until his appointment by Ike to the federal appeals court for the District of Columbia.
For all of his pious talk about keeping the Supreme Court above politics, Nixon had made public dissatisfaction with Earl Warren’s activist leadership a centerpiece of his 1968 campaign. And despite Nixon’s call for “strict construction” from the Supreme Court, he was less concerned about the niceties of the Warren Court’s jurisprudence than with its results, especially its expansion of individual rights, which Nixon translated for voters as “permissiveness.” At a time of rising crime, with urban riots and disorderly protests against the Vietnam War, Nixon blamed the Warren Court for a breakdown of “law and order.” In one of his favorite applause lines, repeated in speech after speech, Nixon charged that the judiciary had “gone too far in weakening the peace forces as against the criminal forces.” Burger’s tough positions on criminal procedures as an appeals court judge had brought him to Nixon’s attention. That was the kind of “strict constructionist” the president wanted, one who would unleash the police.
Nixon’s campaign against the Supreme Court also fitted into his broader strategy to attract into the Republican fold Southern conservatives rebelling against Democratic party liberalism. Ever since Brown and the court’s order the following year that desegregation proceed “with all deliberate speed,” enforcement had caused unrest—and occasional violence—in the South. In 1957, President Eisenhower had sent federal troops to Little Rock, Arkansas, to quell bloody resistance to the integration of Central High School. “Our personal opinions” about Brown, he told the country, could “have no bearing on the matter of enforcement; the responsibility and authority of the Supreme Court to interpret the Constitution are very clear.” Five years later, John Kennedy sent troops to put down a riot protesting the integration of the University of Mississippi. By the late 1960s, the flash point was the court-ordered busing of black children to white schools and white children to black schools. While Nixon claimed to support integration, the candidate had complained about federal meddling in local schools and told a group of Southerners that “busing the child . . . into a strange community—I think you destroy that child.” As president, he would drag his feet on enforcement—passive, not massive, resistance.
When he appointed Burger, Nixon had claimed that “the Court will not be used” for geographical balance, but the president was determined to promote his “Southern strategy” by naming a conservative from the South. After Abe Fortas resigned under pressure on May 15, 1969, a week before Nixon announced Burger’s nomination to replace Warren, no Northerner made Nixon’s short-list. His choice was—almost inevitably given the GOP’s historic weakness in the South—a Democrat, Judge Clement Haynsworth, a distinguished old-line South Carolinian. After graduating from Harvard Law School, Haynsworth joined a family law firm back home and “Democrats for Ike.” Always seeking to win support in the South, Eisenhower in 1957 had made him an appellate judge.
Haynsworth’s conservative record on the appeals court drew quick opposition from labor and civil rights leaders. While the caricature of the judge as a racist was unfair, it was a pair of ethical lapses, when he presided in cases where he had a financial interest, that gave opponents a lever, especially after Fortas’s downfall over conflict-of-interest charges. As battles raged day after day in the Senate, the president was urged to withdraw the nomination, but Nixon stuck to his man. Haynsworth’s defeat, with only 45 ayes to 55 nays, cut across party lines, as 17 Republicans, including some who had led the rush against Fortas, voted no.
While his stalwart backing of Haynsworth meant that the administration had “politically probably come out ahead” in the South, Nixon was stung by the rejection. Determined, as he said, to “play it very tough,” the president responded with a classic “spite” nomination, putting up what a Nixon official called a “real Southern judge”—Georgia native G. Harrold Carswell, another Democrat Ike had appointed to the federal bench. But Carswell was no Haynsworth. Senate hearings soon proved that he was a lifelong segregationist, on and off the bench, and an incompetent judge—an “absurd constructionist,” as a law professor concluded after examining his opinions. Despite a stirring defense of mediocrity from Republican senator Roman Hruska of Nebraska—“Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Frankfurters and Cardozos and stuff like that there”—the Senate rejected Carswell too.
Nixon seethed. It was John Mitchell and his Justice Department vetters who had failed to unearth Carswell’s long racist trail, but the president aimed his fire at the Senate. “I have reluctantly concluded that it is not possible to get confirmation for a judge on the Supreme Court of any man who believes in the strict construction of the Constitution, as I do, if he comes from the South.” A month later, he found, as he had promised, a “ judge from the North,” Harry A. Blackmun, who seemed capable and safe—a summa cum laude Harvard graduate, a resident counsel at the famed Mayo Clinic, and a “Minnesota twin” to his longtime St. Paul friend, Warren Burger. Despite some liberal opinions on the federal appeals court, he appeared to be a dependable conservative, especially on law and order. The Senate confirmed Blackmun unanimously, one year after Fortas resigned.
In the fall of 1971, another seat opened up with the retirement of Hugo Black. Now Nixon got his Southerner. After closely considering Representative Richard Poff, a Virginia Democrat whose long record of opposition to civil rights laws would trigger a new confrontation with the Senate, Nixon turned to another Virginian, Lewis F. Powell, Jr., a man of impeccable credentials, including past presidency of the American Bar Association. A prosperous corporation lawyer in Richmond, he appeared to be a “strict constructionist” in the mold of the second Justice Harlan, with little taint of racism in his background. By the South’s standards, he was a moderate on segregation. The Senate confirmed him unanimously.
In ideology, Nixon’s first three justices cleaved to the moderately conservative Eisenhower wing of the Republican party. For some years, however, potent new forces had been gathering in the GOP. A right-wing base, emerging out of Robert Taft’s three failed attempts to win the party’s presidential nomination, had mobilized behind Barry Goldwater’s ideological campaign for the presidency in 1964. Lyndon Johnson’s crushing defeat of Goldwater only stimulated this “New Right,” which made the Warren Court a particular target for its promotion of equality above such other values as security, states’ rights, and the rights of property. By the 1970s, young enthusiasts were flocking to the GOP, many from universities such as Yale, Chicago, and Stanford. Soon the New Rightists were creating their own journals and organizations—notably the Federalist Society, which vowed to overturn the liberal legal and judicial establishments.
It was to reach out to this hard-right wing, which included activists in the White House itself, that Nixon tagged William Rehnquist to take the place of the retiring John Harlan late in 1971. The Milwaukee-born Rehnquist had graduated at the top of his Stanford Law School class and clerked for Justice Robert Jackson, then moved into private practice in Arizona, where he was an outspoken foe of integration and equal rights. In 1969, he became director of the Office of Legal Counsel in the Justice Department, taking part in the administration’s crackdown on antiwar protesters and even proposing a constitutional amendment on behalf of law enforcement, to counter the Warren Court’s failures to protect “the right of society to convict the guilty.”
Still, Nixon had to be persuaded. For one thing, he was inclined toward Senator Howard Baker of Tennessee, yet another Southerner and one who would be easily confirmed by his colleagues. For another, his first meeting with Rehnquist in 1971 left him with the lingering impression of a man dressed like a “clown,” wearing
a pink shirt and “psychedelic necktie.” When an aide spelled Rehnquist’s name, Nixon asked, “Is he Jewish? ” Later he couldn’t remember the name—“Renchburg”? “Renchquist,” an aide replied. “Yeah,” the president said. “Renchquist.”
But Baker was slow to make up his mind, and as an adviser pointed out, since Rehnquist was only forty-seven years old, the president could “salt away a guy that would be on the Court for thirty years” as “a rock solid conservative.” Rehnquist’s confirmation was a battle, as evidence surfaced of his harsh opposition to civil rights, especially a 1952 memo for Justice Jackson in the Brown case, urging that Plessy’s racist doctrine “was right and should be reaffirmed.” Twenty-six senators voted no. Afterward, the president gave the new justice a last bit of advice: “Just be as mean and rough as they said you were.”
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 20