Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  BY THE END of his first term, Nixon had put on the bench four justices who broadly shared his views on the issues that most preoccupied him politically: law and order and school desegregation. The Supreme Court’s solid liberal majority had been decimated by the departures of Warren, Black, and Fortas. Even so, the evils of the Warren Court remained a target for Nixon. In his 1972 reelection campaign, he told voters that he needed “4 more years to strengthen the courts so we can have the peace forces strong, backed by the judges of this country.”

  The trouble was that despite the president’s hopes and the pressures he applied, the new Nixon men produced no “counterrevolution” against the liberal Constitution. They succeeded in blunting the court’s broad activist thrust, but with the exception of Rehnquist, none of them had a genuinely revolutionary temper, an eagerness to discard precedents or to supplant liberal activism with an activism of the right. They did little more than chip away while leaving the massive core of liberal jurisprudence intact.

  Ironically, the early Burger Court was to be remembered not for its judicial restraint or its rulings on crime or race, but, despite the chief justice’s best efforts, for an aggressively activist and “policy-making” decision on an issue new to the Supreme Court that would transform judicial politics for decades to come.

  In the 1960s, challenges to state laws barring abortion intensified in legislatures and courts, many of them powered by Griswold ’s recognition in 1965 of the constitutional right to privacy. A challenge to a Texas law that forbade abortion except when necessary to save a woman’s life first reached the Supreme Court in 1971. With only seven justices sitting—Black and Harlan had yet to be replaced—a tentative majority formed to strike down the Texas abortion ban, but Warren Burger assigned the opinion to his old Minnesota friend Harry Blackmun, though the chief justice was in the minority and Blackmun’s own position was not yet solid. When Douglas, who as the senior justice in the majority should have had the power of assignment, objected, Burger replied disingenuously that in his view the positions of several justices as expressed in conference were so unclear that the case “would have to stand or fall on the writing, when it was done”—that is, it depended on whether Blackmun’s opinion could attract a majority. At the same time, Burger maneuvered for delay, arguing that the court’s eventual ruling would have more weight if a full complement of justices heard the case. He expected that Nixon’s new appointees, Powell and Rehnquist, would join him in upholding the law—and by then, Blackmun might be persuaded to do the same.

  But the chief was in for a surprise. After the case was reargued in October 1972, Blackmun and Powell indicated that they would join Douglas, Brennan, Stewart, and Marshall to strike down the Texas restriction. Blackmun would, in fact, write the opinion for the court—but it would be to recognize abortion as a constitutional right, as a dimension of a woman’s right to privacy. His maneuvers having backfired, the chief justice switched to the majority at the last minute. Warren Burger was unwilling to stand in dissent to a landmark ruling of the Burger Court. But he issued a brief concurrence to insist that the decision had no “sweeping consequences”: “Plainly, the Court today rejects any claim that the Constitution requires abortion on demand.”

  Blackmun’s opinion in Roe v. Wade was in fact not anything as blunt as that. It included a lengthy history of abortion practices and laws, an expression of the “sensitive and emotional” controversy surrounding it and his own conflicted feelings, and then a venture into the sort of judicial policy-making conservatives so often decried, as he meticulously laid out a calendar that progressively limited the woman’s right to choose an abortion as her pregnancy advanced.

  But in the stormy aftermath of Roe, Blackmun’s painstaking handiwork seemed almost beside the point. The simple recognition of abortion as a constitutional right became the polarizing issue in national politics, a rallying cry for liberals who were “pro-choice” and for conservative “pro-lifers” who echoed Justice White’s angry dissent that, in an “exercise of raw judicial power,” the court had created a “constitutionally protected right” to “exterminate human life.” Roe would haunt every nominee to the Supreme Court for decades.

  THE ABORTION ISSUE never engaged Richard Nixon. By the time Roe was announced, January 22, 1973, two days after the president was inaugurated for a second term, he was deeply involved in a conspiracy to protect what mattered most to him—his power, threatened by investigations into the break-in at Democratic National Committee headquarters in June 1972 by men connected to his reelection campaign. Fatally, the president’s aggressive—and criminal—role in obstructing the investigations was captured by tape recorders he had ordered installed in the Oval Office and elsewhere in the White House. When Nixon, citing the doctrine of “executive privilege,” refused to turn over tapes of relevant conversations to the courts for use in a trial of former aides, the Supreme Court agreed, in July 1974, to hear the case on an expedited basis.

  The stakes could hardly have been higher: on the court’s decision rested the fate of a president. If the tapes were released and provided conclusive evidence of the president’s wrongdoing, Nixon was finished. Many observers feared he would resist anything less than a unanimous opinion. Would not his own appointees—at least one or two of them—come out for judicial restraint and deference to the executive? But with its reaffirmation of John Marshall’s famous claim to power in Marbury—“it is emphatically the province and duty of the judicial department to say what the law is”—the decision in U.S. v. Nixon was an assertion of judicial supremacy. While acknowledging the president’s need for confidentiality in his decision-making, the court insisted that, in disputes between a federal judge and a president over the disclosure of evidence, it was the judge who had the final word.

  And that decision was unanimous. Nixon had hoped for some “air,” some way to evade compliance, but during several tense hours after the decision came down, his lawyers could find none. Seventeen days later, August 8, following the release of an especially damning tape, the president resigned. Law and order, it turned out, cut both ways.

  NIXON HAD NO MORE justices to name after Powell and Rehnquist in 1971. Gerald Ford, his appointed successor, had but one vacancy to fill as he served out the rest of Nixon’s second term. As a Republican leader in the House, Ford had been a vitriolic critic of the Warren Court, and in 1970, after the Haynsworth debacle and egged on by a vengeful Nixon, he had targeted William Douglas for impeachment. The charges were insubstantial and brusquely dismissed by the House Judiciary Committee; Ford’s real aim had been to strike at the legacy of liberal judicial activism through a surviving New Deal justice. Douglas swore to stay on the court “until the last hound dog had stopped snapping at my heels.” He achieved the longest tenure in the Supreme Court’s history—more than thirty-six years—but ill health forced his retirement in 1975, at the age of seventy-seven. That gave his old tormentor the chance to name his replacement. The surging Republican right wing, which threatened to mount a challenge to his nomination in 1976, pressed Ford to appoint a hard conservative to the court. But as a president with no electoral mandate facing an aggressive Democratic Congress, he needed a “nonpartisan” nominee able to win confirmation. That led him to John Paul Stevens, a scholarly Chicago Republican with little background in party politics and a reputation for legal craftsmanship and independence won in five years as a federal appeals judge. The Senate confirmed him unanimously.

  Decisions like Roe underscored the failure of two Republican presidents, with five justices between them, to pack the Supreme Court with ideologues single-mindedly committed to reversing its liberal activism. The fact that Democrat Jimmy Carter, who defeated Ford in 1976, had no appointments—the first president in history to serve a full term without at least one—only whetted New Right appetites. The roulette wheel was bound to turn their way, if only they could get one of their own into the White House.

  That made Ronald Reagan’s first nomination, when Potter S
tewart decided to retire not long after Reagan took office in 1981, a crushing disappointment. Unlike Nixon, Reagan was a true believer, an ideologue committed to shifting the Republican party far to the right. Ever since his emergence on the national scene in 1964 as an eloquent Goldwaterite, the retired actor had made criticism of “ judicial lawmaking” and “social engineering” by unelected judges staples of his oratory. A onetime New Deal Democrat, President Reagan identified with FDR, not least in his determination to defeat a hostile judiciary. But the new president also had a political debt to pay: his campaign promise to name “the most qualified woman I can find” to “one of the first Supreme Court vacancies in my administration.”

  Reagan’s White House vetted the leading candidate, Sandra Day O’Connor, with exquisite care. After growing up on a ranch with 200,000 acres and 2,000 head of cattle on the Arizona-New Mexico border, O’Connor attended Stanford Law School, served as a civilian lawyer with the army, and won election as a Republican state senator in Arizona, before serving on the state’s court of appeals. But was she conservative enough? Did she share the White House view that judges should “interpret the law, not enact new law by judicial fiat”? Was she sound on abortion? For the first time that issue was playing a crucial role in a Supreme Court nomination. After Roe was decided, anti-abortion crusaders began to press state legislatures to impose restrictions on women’s right to choose. But their aim was not merely to limit Roe. They hoped to pack the Supreme Court with justices who would vote to overturn it.

  Scouring O’Connor’s record, the vetters found a few question marks, including reports that while in the state senate she had favored liberalization of Arizona’s abortion laws. In July 1981, O’Connor met in the White House with Reagan and staffers. There she evidently assured the president that she would be no judicial activist on the court and that abortion was “personally repugnant” to her. But anti-abortion leaders were not assured. One warned the president that her nomination would ignite a firestorm of opposition across the country. Reagan stuck to his choice—she was, one official said, “the most conservative woman we could find”—and O’Connor won unanimous backing in the Senate.

  O’Connor disappointed abortion foes on her very first major encounter with the issue, Akron v. Akron Center for Reproductive Health, in 1983. She did dissent from the court majority that struck down a battery of state obstacles to abortion—but O’Connor did not call for Roe to be overturned. The crux of her dissent was that the Ohio restrictions did not impose an “undue burden” on a woman’s exercise of her abortion right. Narrowing Roe’s scope was a compromise—anathema to those who considered abortion murder.

  The O’Connor disappointment made Reagan’s next picks critical, but the opportunities were slow in coming. Conservatives inside the administration used the time to construct an elaborate screening process that rated candidates against the ideal Supreme Court nominee, who would exhibit a “refusal to create new constitutional rights for the individual,” a “disposition towards ‘less government rather than more,’ ” an “appreciation for the role of the free market in our society,” and a “respect for traditional values.” Attorney General Edwin Meese hit the road to campaign for a “jurisprudence of Original Intention” that would limit constitutional interpretation to discerning the motives of the Framers two hundred years before. Justice Brennan responded directly to Meese, maintaining that it was “arrogance cloaked as humility” to pretend to apply the Founders’ intent to specific modern problems. “The genius of the Constitution,” he said, “rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

  The man to whom Ronald Reagan turned with little hesitation to lead the Supreme Court when Warren Burger stepped down in May 1986 was no more an “originalist” than Brennan. William Rehnquist did not believe there was a single, discoverable meaning to the Constitution. He liked to point out that he and Brennan might study the “original intent” of the First Amendment and come to opposite conclusions. Like his patron, Richard Nixon, Rehnquist was more realist than ideologue. The Supreme Court could never be above politics, in his view, either in the appointment process or in the conflicts on the bench, as justices fought to have their views prevail.

  Such realism made Rehnquist a results-oriented activist of the right—and in all the ways that counted, what Rehnquist wanted, the Reaganites wanted, too. He was the “paradigmatic example” of judicial conservatism, the ideal man to direct “a generally rudderless Court.” Senate Democrats, now in the minority, saw it differently. As Rehnquist acknowledged, had they been in control of the Senate, he might have well and fairly been rejected. As it was, he collected 33 negative votes, the most ever for a successful chief justice nominee.

  His promotion gave Reagan a second seat to fill. Shadowing the White House was the O’Connor “mistake.” After five years on the court, she continued to give conservatives reason to doubt what administration lawyers called “her commitment to principles of judicial restraint and fundamental constitutional values.” Though far more often than not she voted the “right” way, she frequently filed separate concurrences that undermined conservative cohesiveness. Looking for the anti-O’Connor, the vetters fell hard for Antonin Scalia. Born in Trenton to an elementary school teacher mother and an Italian immigrant father who became professor of romance languages at Brooklyn College, Scalia was described by a classmate at the Catholic military school he attended as an “archconservative Catholic” at age seventeen. After a few years of practicing law in Cleveland, Scalia taught at the University of Virginia Law School, became an assistant attorney general under Nixon, a scholar at the conservative American Enterprise Institute, and a Reagan appointee to the U.S. Court of Appeals for the District of Columbia, sometimes called the nation’s “second court” and now becoming a training ground for Supreme Court justices.

  To conservatives, Scalia’s jurisprudence was “perfect.” He touted “originalism” and deference to the political branches and to the states, but did not scruple to cross over into activism in pursuit of conservative results. And unlike so many of the Republican appointees, he had no hang-ups about precedent. If he disagreed with a past decision, he would not hesitate to overturn it—for instance, Roe, which as both a judge and a devout Catholic he felt was ripe for review. For such a militant conservative, his confirmation was, curiously, a breeze. He checked his temper—the one thing about him that had worried the vetters—and evaded controversies. Moreover, Democrats had spent most of their fury on Rehnquist’s earlier confirmation. Scalia was approved unanimously.

  Reagan’s next nominee was, in the eyes of the vetters, almost Scalia’s ideological twin, another “perfect” conservative, but their fates could scarcely have been more different. Justice Powell’s retirement in June 1987 put the Supreme Court into play as it had not been for decades. Powell had evolved into a “determined moderate,” who held the deciding vote in a wide variety of important cases, including abortion. Swinging left and right, he more than anyone had defined the inconsistent, middle-of-the-road jurisprudence of the Burger Court.

  With a golden opportunity to tip the court decisively rightward, Reagan picked a man he insisted on describing as another Powell, “evenhanded and openminded.” No terms so ill defined Robert Bork, whose long career as a reactionary academic and judge had put him in the vanguard of the right wing’s legal counterrevolution. His voluminous paper trail exposed a nominee who would, in the name of originalism and restraint, sweep away the precedents of half a century. Democrats erupted. On the Senate floor, Ted Kennedy roared that “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government.”

  Bork ’s confirmation he
aring proved a disaster. For days, the judge lectured the senators, eagerly entertained hypotheticals, and almost leapt into traps Democrats set for him, even while jettisoning some of his most extreme views in a “confirmation conversion.” Enough remained, though, to make Kennedy’s remarks seem less like an intemperate, partisan outburst than a chilling prophecy. The Senate killed the Bork nomination, 58 to 42.

  Reagan responded swiftly with a “spite” nomination, determined to force on the Senate a nominee “they’ll object to just as much” as they had to Bork. But while Douglas Ginsburg, a federal appeals judge for the D.C. circuit, passed the in-house ideological litmus tests with flying colors, his private life fell short in the “traditional values” department. Within a week after Reagan named him, Ginsburg acknowledged that he had smoked marijuana while a student and law professor. Three days later, Ginsburg was out.

  Embarrassed, Reagan now sought a moderate conservative who could get confirmed. Judge Anthony Kennedy of the federal appeals court in California had long been mentioned for the high bench, but “disturbing aspects” of his jurisprudence—a sympathy for privacy and other “new” rights, a lack of deference to the political branches—damaged his standing among true believers. But now, even though aides feared Kennedy would prove more a Powell than a Scalia, Reagan needed him. At his confirmation hearings, the nominee adroitly distanced himself from Bork, especially on privacy, and after three days of routine testimony, the Senate confirmed him unanimously.

  WITH KENNEDY’S CONFIRMATION, a cohesive conservative majority seemed to take shape. Voting together 80 percent of the time in the Supreme Court’s 1988 and 1989 terms, Rehnquist, O’Connor, Scalia, Kennedy, and White challenged key liberal precedents in civil rights and civil liberties. In City of Richmond v. Croson, they required states to prove past discriminatory acts in order to justify affirmative action, which would be limited only to those who were shown to have suffered the discrimination. They weakened protections against warrantless searches in two cases involving drug testing and, in a case involving peyote rituals, against invasions of religious liberty by secular laws.