The Supreme Court
Political Firestorm That Fizzled
Richard Nixon knew that he needed to replace at least two justices in order to stop the liberalism of the Warren Court. While Warren's resignation sat on his desk when he arrived at the White House, one definite appointment wasn't enough for him, so he started a campaign to get rid of the other liberal judges.
Bob Woodward writes in his book, The Brethren, that Nixon's Attorney General John Mitchell assisted Life Magazine with a story that exposed an annual payment of $20,000 to Abe Fortas from a foundation funded by millionaire Louis Wolfson, who was then under investigation by the Securities and Exchange Commission (SEC). Wolfson told friends that Fortas would help him. After the Life Magazine story, “Fortas of the Supreme Court: A Question of Ethics,” Fortas was quietly pressured to resign from the court.
Nixon chose Harry Blackmun to replace Fortas, but he turned out to be a disappointment. Rather than join the conservative activist wing, he instead sided with the justices looking to find middle ground and was reluctant to reverse court precedent.
Brethren, or brother, is a term used by the justices, who were an exclusively male club until 1981 when the first female justice, Sandra Day O'Connor, was appointed during Burger's term. Some wondered if her appointment would end the tradition. Today even with two women on the court the tradition holds.
Once Nixon had his two appointments in place, he didn't want to stop there, according to Woodward. If he could force two other liberal justices off the court, he'd really be able to make a long-term impact on the judicial branch. William Douglas, who had served on the court for 30 years, was criticized for his $12,000 per year directorship on the board of the Albert Parvin Foundation. Douglas resigned from the foundation to avoid any question of ethics and stayed on the Court.
Next on the attack agenda was William Brennan because of a real estate investment he held with Fortas and some other lower justices. To avoid any question of ethics, Woodward writes in The Brethren, Brennan not only divested the real estate investment, he also sold all his stocks, resigned from the board of Harvard University, and quit a part-time summer teaching post at New York University.
Nixon's desire to quickly reconstitute the makeup of the court failed. He did finally get to appoint two more justices in 1971, Lewis Powell and William Rehnquist, who replaced one Roosevelt liberal, Hugo Black, and one Eisenhower conservative, John Harlan. Powell, too, turned out to be disappointment because he joined the justices in the middle rather than the Burger activist conservative wing.
Controlling at the Center
“Widely considered a 'sure swing vote' in the Court's center, Stevens fairly rapidly proved to be found far more frequently with the 'liberal bloc,' increasingly so with the passing of time …. A 'gadfly to the brethren,' a personal loner, a legal maverick, he forever challenges his colleagues …. He has written more dissenting and concurring opinions than any of his colleagues. To dissent, of course, is one thing; but to engage in the veritable flood of concurring opinions that have emanated from Stevens's pen is quite another—for they all too often muddy the constitutional law waters and lay themselves open to the charge that they are ego trips.”
—Henry J. Abraham, author of Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton
The politics inside the court are primarily driven by who gets to pick the person who will write the court's decision. If the chief justice is not in the majority, he loses his control of that decision. Instead it falls to the most senior associate justice. This tradition gave those justices sitting in the middle the greatest role in shaping the Burger court. In many instances Burger actually ended up voting with the middle to gain control of decision-writing. As we'll discuss, he joined the landmark Roe v. Wade decision legalizing abortion so he could pick Harry Blackmun to write the decision.
The senior justice for the middle-of-the-road group was Eisenhower appointee Associate Justice Potter Stewart. He was joined by Kennedy appointee Byron White. By 1975, when President Gerald Ford appointed John P. Stevens, this middle group had a block of five votes. In addition to Stewart, White, and Stevens were two other Nixon appointees: Blackmun and Lewis Powell.
Even though Nixon appointed four justices, only two joined the conservative activist wing. Rehnquist voted solidly as conservative activist. Burger played politics and frequently joined the center court justices so he could control the final decision-writing. President Lyndon Johnson's appointee Thurgood Marshall and President Eisenhower's appointee William Brennan both kept true to the liberalism of the Warren Court.