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

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. In seeking to appeal to voters he would later call the "great silent majority," presidential candidate Richard Nixon laid down a challenge to the Warren Supreme Court in 1968, blaming it for the nation's recent crime wave and the unrest plaguing America's urban core. Inspired by his success in the election, Nixon maneuvered during the course of his presidency to alter the Court in hopes of making it work for him. Most analysts, however, have deemed 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 toward 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 endorse. 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 independents and 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 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. Contents 8 List of Illustrations 10 Acknowledgments 12 Chapter 1: Nixon’s Victory: Oppositional Presidents and the Cycles of Supreme Court Politics 16 Part I: Circa 1968: Law, Order, and the Race for the White House 30 Chapter 2: The Fight for the Nomination: Holding On for a Second Chance 32 Chapter 3: Running to Be “the One”: Nixon, Divided Democrats, and a Chastened Court 52 Part II: The Politics of Desegregation 78 Chapter 4: “Instead of Listening to What We Say . . . Watch What We Do”: Electoral Strategies, Practical Politics, and Nixon’s Judicial Policy 80 Chapter 5: Leading by Following: Nixon, the Court, and the Road to School Desegregation 98 Part III: The Dynamics and Difficulties of Remaking the Court 126 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) 128 Chapter 7: Fifty-Three Seconds That Shaped the Court: Nixon’s Acceptable Southerner and Accidental Ideologue (or, How Liberals Made the Court More Conservative) 161 Part IV: The Political and Electoral Consequences of Supreme Court Decisions 182 Chapter 8: Fighting Busing, Crime, Smut, and Social Disorder in America: Strong Rhetoric, Selective Action 184 Chapter 9: Judicial Decisions and the Ballot Box: Nixon’s Court and the Division of the Democratic Coalition 227 Chapter 10: Evaluating the Conservative Counterrevolution through the Nixon/Rehnquist Nexus 266 Appendix 272 Notes 276 Works Cited 332 Index 346 Nixon's Victory: Oppositional Presidents And The Cycles Of Supreme Court Politics -- Circa 1968: Law, Order, And The Race For The White House -- The Fight For The Nomination: Holding On For A Second Chance -- Running To Be 'the One': Nixon, Divided Democrats, And A Chastened Court -- The Politics Of Desegregation -- 'instead Of Listening To What We Say -- Watch What We Do': Electoral Strategies, Practical Politics, And Nixon's Judicial Policy -- Leading By Following: Nixon, The Court, And The Road To School Desegregation -- The Dynamics And Difficulties Of Remaking The Court -- 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) -- Fifty-three Seconds That Shaped The Court: Nixon's Acceptable Southerner And Accidental Ideologue (or, How Liberals Made The Court More Conservative) -- The Political And Electoral Consequences Of Supreme Court Decisions -- Fighting Busing, Crime, Smut, And Social Disorder In America: Strong Rhetoric, Selective Action -- Judicial Decisions And The Ballot Box: Nixon's Court And The Division Of The Democratic Coalition -- Evaluating The Conservative Counterrevolution Through The Nixon/rehnquist Nexus. Kevin J. Mcmahon. Includes Bibliographical References And Index. Most analysts have deemed Richard Nixon's challenge to the judicial liberalism of the Warren Supreme Court a failure, "a counterrevolution that wasn't". This title reveals a Nixon whose public rhetoric was more conservative than his administration's actions and whose policy toward the Court was more subtle than previously recognized.