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THE SUPREME COURT AND PUBLIC POLICY: THE SUPREME COURT OF THE 1970s

The Warren Court and Judicial Activism

As Richard Nixon ran for president in 1968, he promised the American people he would restructure the Supreme Court. Reflecting the attitudes of many conservatives, Nixon opposed the judicial activism of the Warren Court, which, since the 1954 Brown v. Board of Education decision, had used the court system to end racial discrimination in education, employment, and politics. The Warren Court also expanded the scope of individual liberties, especially the rights of the accused, and eliminated restrictions on free speech and publications. The Warren Court was dominated by liberals such as William O. Douglas, Abe Fortas, William Brennan, and Thurgood Marshall—men who believed in using their constitutional authority to expand civil liberties and redress social inequality. Nixon had a different perspective on the Court. He promised to appoint only "strict constructionists," men who favored a narrow interpretation of the Constitution and who would return the Supreme Court to its traditional conservatism. Nixon soon had the opportunity to keep his promise. He replaced retiring Chief Justice Earl Warren with Warren Burger soon after taking office in 1969. He appointed three other justices in 1970 and 1971. Initially, however, he had difficulty getting his nominees confirmed.

Failed Nominations

After the appointment of Burger, President Nixon wanted to appoint a southerner to the Court. His first nominee to replace Justice Abe Fortas, Judge Clement F. Haynsworth, Jr., was rejected in June of 1969 because of questions about his ability and concerns about his civil rights record. The president then nominated G. Harrold Carswell, who had been a Federal District Court judge for seven years in Tallahassee, Florida, and a United States Court of Appeals judge for six months. However, Carswell met with substantial opposition. In 1948 Carswell had declared his "firm, vigorous belief in the principles of White Supremacy." He said he no longer believed in that. However, he had also worked to change a Tallahassee golf course from public to private to avoid desegregation. Judge Carswell was rejected by a vote in the Senate of fifty-one to forty-five. Nixon complained that the Senate was discriminating against his nominees because they were from the South.

Congress, the Court, and Politics

In return for the opposition to the president's nominees, some of the president's allies in Congress moved to impeach Justice Douglas in 1970. He was, they believed, simply too liberal, Responding to the observation that Justice Douglas had done nothing for which he could be impeached, Congressman Gerald Ford argued that an official could be impeached for "whatever a majority of the House of Representatives considers impeachment to be at a given moment in history." Without charges of substance, the impeachment effort failed.

An Experienced Candidate

President Nixon temporarily abandoned his search for a southerner and appointed a friend of Chief Justice Burger's, Harry A. Blackmun. In addition to an early career as an attorney in Minnesota, Blackmun had been a judge on the United States Court of Appeals for eleven years. He was quickly confirmed.

A Southern Appointment

President Nixon was able to appoint two justices when Justices Hugo L. Black and John Marshall Harlan retired late in 1971. He nominated Lewis F. Powell, Jr., who had had a long career as an attorney in Richmond, Virginia. He had also been the president of the American Bar Association. The Black Caucus in Congress opposed him because he had served on the antidesegregation Richmond school board and the Virginia Board of Education. However, Powell was approved with just one dissenting vote

An Assistant Attorney General

Next President Nixon appointed William Rehnquist, an assistant attorney general for the president. Rehnquist also aroused some opposition, As a law clerk for Justice Jackson he had written a memo expressing doubt about the wisdom of holding segregation unconstitutional in Brown v. Board of Education. Furthermore, he seemed to have been involved in suppressing the turnout of black voters when he worked in Arizona. Other positions that seemed to oppose civil liberties led the American Civil Liberties Union for the first time to oppose a nomination. Nonetheless, Rehnquist was approved by the Senate by a vote of sixty-eight to twenty-six.

The Longest-Serving Justice Retires

Justice Douglas retired in November 1975 after he had a stroke. President Ford nominated John Paul Stevens, a federal appeals court judge. With that appointment the Nixon and Ford administrations had appointed a majority of the Supreme Court.

The Burger Court: A Balance Between Liberals and Conservatives

The Burger Court departed from the liberal trend of the Warren Court, but the justices' views were split enough that the Court did not really reverse that trend. Justices Brennan and Marshall formed the liberal wing of the Court. Justice Rehnquist and Chief Justice Burger made up the conservative wing. Justices Stevens, Blackmun, Byron White, Potter Stewart, and Powell made up the middle. It was these five justices whose votes generally decided the issues. The balance on the Court often meant that the Court would not stake out broad new constitutional principles as did both the Warren Court of the 1960s and the Rehnquist Court of the late 1980s and 1990s. It also meant that individual justices could find themselves in a powerful position as the swing vote in a particular case. For instance, Justice Powell was the swing vote in the affirmative-action case of Regents of the University of California v. Bakke (1978). His opinion therefore stated the law that came out of the case. He decided that universities could try to diversify their student body by race but that they could not set numerical quotas for race-based admissions.

Consolidating a Conservative Court

The appointments of the 1970s meant that the justices most likely to retire were the longer-serving, more-liberal justices. This paved the way for the Reagan and Bush appointments of the 1980s, which brought more conservatives to the Court and resulted in the conservative Rehnquist Court.