an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This year’s Midwest Political Science Association Annual Meeting had an unusually rich set of book panels on new work in American constitutional development. I’ll report on these in my next few posts.
Kevin J. McMahon’s new book is Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences (Chicago, 2011). Lynda Dodd chaired the Midwest panel discussion of the book, and McMahon responded to comments made by Terri Peretti, Mark Graber, and me. McMahon framed the book as a challenge to what I take to be the conventional wisdom on the Nixon (Burger) Court, as a largely failed effort to turn the Court sharply to the right. The charge made memorably (in a book title) by Columbia Law School’s Vincent Blasi was that that Court should be characterized as a “counter-revolution that wasn’t.”
The “counter-revolution that wasn’t” label always seemed to me to smuggle a lot of highly dubious assumptions into discussions of the Nixon Court. I’d venture that it probably reflected a lot more the panic that gripped the liberal/lefties of Manhattan’s Upper West Side when Richard Nixon was elected than any realities concerning the likely direction of the Supreme Court. How likely, really, was Nixon to go hell-bent for a conservative constitutional revolution? The most committed constitutional counterrevolutionary in the postwar Republican Party was Ohio Senator Robert Taft – who died prematurely in 1953. Barry Goldwater, of course, assumed the leadership of the Party’s (constitutional) conservative wing, followed (more moderately, it seems) by Ronald Reagan. Nixon was not from that wing of the party, and thus to impute any counter-revolutionary intentions to him involving the transformation of the federal judiciary seems a real stretch. Unlike the conservatives, Nixon’s part of the party accepted the New Deal. They certainly didn’t contemplate a counter-revolution against that. Who were the Republican Presidents who bookended Nixon? Dwight Eisenhower (whose eclectic Supreme Court appointments were Earl Warren, John Marshall Harlan, William Brennan, Charles Whittaker, and Potter Stewart (to be sure, Ike expressed regret for Warren and Brennan – but the others were hardly counter-revolutionaries)) and Gerald Ford (who appointed John Paul Stevens). Nixon’s appointees fit snugly into this stream.
My own ongoing research into conservative constitutional discussion in the public sphere supports my Zabar’s thesis on the “counter-revolution that wasn’t” label: it is pretty clear that contemporaneous conservatives did not view Nixon’s election as portending any sort of “counter-revolution,” either in overturning either key New Deal -- or even Warren Court -- precedents. Conservatives writing in the late 1960s and early 1970s expressed hopes that Nixon’s Supreme Court appointments would halt the trajectory of liberal developments in particular areas of law, and trim back some liberal doctrinal hedges in others. The prediction of an impending counter-revolution was almost all the product of the fevered imaginations of an appalled and panicked liberal/left.
McMahon’s book argues that Nixon was successful in achieving his actual goals for the Supreme Court: holding the line in the Court on the few areas he cared about for electoral reasons (busing, affirmative action, the liberalization of the legal protections of criminal defendants) to win over core parts of the Democratic Party’s white, working-class ethnic (and, often, Catholic) base over to the Republican Coalition. Nixon tried to use Court appointments to advance his so-called Southern strategy, but the effort was hampered (given Nixon’s support for civil rights) by the civil rights positions taken by the most likely conservative southern candidates. Nixon’s efforts to secure southern appointments, moreover, were otherwise hopelessly botched. Nixon did much better on the other front – to the point where McMahon insists we’d be better off calling these new Republican Party recruits “Nixon Democrats” rather than “Reagan Democrats.”
McMahon makes good use of internal administration documents (including the Oval Office tapes) to build an original source case for his claims (much as he did in his prize-winning previous book, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago, 2003)). It seems from this evidence that Nixon’s calculations were electoral/political all the way down, to a degree that Terri Peretti declared herself disgusted by what she had read in the McMahon book on this, and Mark Graber reminded us of the distinction between “high” and “low” politics, so far as constitutional arguments are concerned, and declared that, by the evidence produced in the McMahon book, Nixon gave low politics a bad name. To suggest that Nixon was committed to anything so principled as a constitutional “counter-revolution” would be to attribute to him lofty calculations that were all but alien to his nature.
Rolling out a chart of the Martin-Quinn scores on the median ideology of Supreme Court Justices from 1953 to the present, Peretti argued that Nixon did indeed succeed in moving the Court pretty far to the right (there was argument on the panel about the accuracy and relevance of these measures, given what it is we were talking about, and what, presumably, we wanted to know). Peretti argued, moreover, that Nixon’s ability to do so was in part a lucky consequence of the large numbers of “distal” Supreme Court vacancies that arose during his term (she uses the work of political scientist Keith Krehbiel (2007), who defines a Supreme Court “vacancy as distal if (a) the president is Republican and the departing justice is at or to the left of the Court median or (b) if the president is Democratic and the departing justice is at or to the right of the Court median.”).
In addition to the above, I thought that McMahon had not fully clarified the degree to which Nixon was pursuing a southern or a northern strategy in his electoral calculations concerning Supreme Court appointments. While McMahon did avail himself of quantitative voting analysis in the book (which made good use of multiple methods), we lacked the hardcore voting quant-oid political scientist (of the kind much in evidence elsewhere in The Palmer House that afternoon) to help us determine whether McMahon had, on this point, proved his case.
I would add that, at this stage of development of theories of American constitutional regimes (the important work was done after Blasi offered his characterization), the labels “revolution” and “counter-revolution” should no longer be used so loosely (and polemically) by constitutional scholars. We are entitled to ask what the regime is that is being referred to, and ask for proof that it is actually being overthrown. Politicians, of course, hurl charges of revolution and counter-revolution all the time (see, e.g., the efforts of Barack Obama to overthrow the Constitution and install socialism). Scholars should be more careful.
Although McMahon’s book is framed in opposition to the “counter-revolution that wasn’t” canard, (thankfully) it transcends it. Saying good-bye to all that, it puts us on track for asking the right questions about Nixon and the Court – and providing some plausible, and interesting, answers. Posted
by Ken Kersch [link]