Jonathan P. Baird

If you are a liberal or a progressive, it is difficult not to feel a sense of despair about the U.S. Supreme Court. It is not just that the Court is out of touch with the realities of American life. For 50 years now, the Court has consistently favored the very rich and sided against working and poor people. It also has had, at best, a checkered and dismal record addressing racism and sexism.

Although in the edifice outside the Court, the words read “Equal Justice Under Law”, nothing about that institution could be farther from the truth. The message is false advertising. Instead of comforting the afflicted and afflicting the comfortable, the Court has done the opposite. Their project has been the creation of a more unjust America done under the guise of law.

The history of how the Court devolved has been insufficiently appreciated. Probably it is out of a sense of deference and respect for the idea of the rule of law but the Court has escaped the scrutiny it so richly deserves.

In his book, Supreme Inequality, Adam Cohen presents a devastating picture documenting the Court’s last 50 years. He looks at the question of how the Court got so conservative and aligned with the interests of the very rich. It was not always so.

For a period of time in the 1960’s, the progressive justices on the Court led by William J. Brennan, Thurgood Marshall and William O. Douglas played a large role in crafting the ideological direction of the Court. This was the heyday of the Warren Court.

Cohen tells the now-forgotten and hidden story of how the Court switched political direction. While we might think conservative strong-arming in the legal arena is a new story fashioned by Trump and Mitch McConnell, Cohen shows the same dynamic occurred in the transition from the Warren Court to the Burger Court.

Nixon was Trump’s forerunner. He was not an innocent bystander of judicial developments. As was characteristic of his political career, Nixon crossed all kinds of ethical boundaries in his effort to reshape the Supreme Court. From the very beginning of his presidency, Nixon was obsessed with remaking the Court.

The story of how the Supreme Court flipped from liberal to hard right is both about LBJ’s political miscalculation and Nixon’s criminal Machiavellianism.

In June 1968, Chief Justice Warren told LBJ he intended to retire. Johnson decided to nominate a sitting justice, Abe Fortas, as Warren’s successor. Fortas was a close confidant of Johnson’s and often gave him political advice. Although LBJ had legendary political skills, he miscalculated in thinking he had the numbers in the Senate to make Fortas Chief Justice.

At the time, Johnson was a lame duck and his influence was on the wane. Many Southern Democratic senators as well as Republicans balked at Fortas who would have been the nation’s first Jewish Chief Justice. Thurgood Marshall had been appointed to the Supreme Court in 1967 and Senator James Eastland of Mississippi was heard to say: “I could not go back to Mississippi if a Jewish Chief Justice swore in the next president”.

Republican senators opposed Fortas both for being an integrationist on civil rights and for his role on obscenity cases where he had defended First Amendment rights. Senator Strom Thurmond from South Carolina invited his fellow senators to a screening of Flaming Creatures, a porn movie. Fortas had found the movie not obscene. Nixon’s top political aide, Pat Buchanan, called the screening the “Fortas Film Festival”. Thurmond made destroying Fortas his mission

Fortas’s confirmation hearing testimony did not help him. He denied the extent of his relationship with LBJ, a denial that lacked credibility. He was widely seen as an LBJ crony. The fact that Fortas’s hearing was unprecedented did not help him. Never was an already sitting justice on the Supreme Court subjected to questions by the Judiciary Committee.

In the end, the Fortas nomination was defeated by a Senate filibuster. Johnson had to withdraw the nomination. This opened the door to the next president getting to name Warren’s successor.

Even before winning the presidency in 1968, Richard Nixon worked behind the scenes to sink the Fortas nomination. As Pat Buchanan later recalled, “Nixon wanted the Fortas nomination killed but he did not want our fingerprints on the murder weapon”.

Nixon aggressively targeted for replacement the older liberal justices on the Court. According to Cohen, Nixon weaponized the resources of the White House and the Justice Department to try and threaten liberal justices into resigning. He was not content to wait for the Court’s membership to turn over.

Nixon went after Fortas first, knowing he was weakened by his defeated Chief Justice nomination. He pushed his corrupt Attorney General John Mitchell into investigating Fortas. Nixon aides leaked information to Life Magazine about Fortas’s relationship with Louis Wolfson, a wealthy investor and a former client of Fortas. The Life piece prompted sharp public criticism of Fortas.

Mitchell also pursued an investigation into Fortas’s wife, Carolyn Agger. Agger was a tax attorney. John Dean said Mitchell’s pursuit of Agger was “purely a means to torture Fortas”.

Nixon also worked with FBI Director J. Edgar Hoover to line up allegations that Fortas had had a gay relationship before he was on the Court. The FBI had an informant who was going to put that story out there and although that story was not publicly released it was used to pressure Fortas.

Nixon aimed to get Fortas to resign rather than to go the impeachment route. Impeachment would take too long. Nixon sent Mitchell to the Supreme Court to work Warren who was still Chief Justice. Mitchell brought investigative papers about Fortas’s relationship to Wolfson to a meeting with Warren. Nixon then went on a charm offensive, flattering Warren and holding an event in his honor at the White House.

Warren caved in to the Nixon pressure. He called a meeting of all the justices and Fortas had to defend himself. The following day, Fortas resigned from the Court. Even though there were only vague allegations against Fortas, the barrage of accusations pushed Fortas over the edge. The New York Times called it an “ugly squeeze play”.

Nixon’s team was extremely proud that they manipulated a liberal Chief Justice to drive a liberal justice off the Court. This gave Nixon two High Court appointments that could cause a sea change in the Court’s balance. Fortas never broke any law but the Nixon pressure campaign worked. Warren Burger, a law and order conservative became the new Chief Justice.

Fortas’s resignation was not the end of Nixon’s power play. He wanted to remove Justice Brennan but he lacked ammunition. He then targeted Justice Douglas, who was quite the character. As Cohen wrote,

“The most liberal justice, Douglas was an iconoclast in law and life. At age seventy, he was married to his fourth wife, Cathy, a twenty-five year old law student – a union that attracted attention in legal circles and beyond.”

Nixon got the IRS to audit Douglas’s tax returns. He had Hoover wiretap Douglas’s telephone. The FBI also investigated Douglas’s ties to Albert Parvin, a Las Vegas casino magnate. Nixon pushed Vice President Agnew and House Minority Leader Gerald Ford to speak out against Douglas.

Ford called Douglas a radical. In a speech on the House floor, Ford held up a copy of Evergreen Review, a countercultural magazine that had excerpted a book by Douglas and called it “perverted” and “downright filthy”.

The Nixon efforts against Brennan and Douglas failed. However, Nixon’s new appointments to the Court did tip the balance away from the liberal majority. That balance has continued for over 50 years now.

When people think of Nixon’s crimes, typically people think Watergate. No one thinks of the Supreme Court but Nixon’s actions in interfering with the Supreme Court were criminal too. The Supreme Court did not just tip – it was pushed. Nothing about the transition of the Warren Court to the Burger Court was proper. Fifty years later, it still stinks.