Jonathan P. Baird

The names Ahmaud Arbery, Breonna Taylor and George Floyd are the latest on a very long list. A few years back it was Michael Brown, Eric Garner, Sandra Bland, and Laquan McDonald.

Racist killings of black people run deep in America’s DNA. I would suggest these killings can only be understood in the context of American history, a history that remains dishonestly told.

There is a narrative war about that history. What I would call the heroic or triumphalist narrative has been, far and way, the dominant story. This version features great presidents (Washington, Jefferson, Lincoln and FDR), the Constitution and an independent judiciary and Manifest Destiny. There were wars along the way, especially the Revolution, the Civil War and World War 2 but this is a story of a great nation built and overcoming adversities.

This version is much loved by mainstream politicians, most newspapers and media outlets and school boards. It is a top-down story, safe and sanitized history.

Unfortunately, this is only one side of the coin. The dark or shadow side is still obscured and there has been an extensive effort to hide it away that amounts to a cover-up.

I think we need to re-look at what we call American history. Bill Barr recently said that the winners write history and that is the problem. It is why we as a society remain incapable of responding to murders like George Floyd’s. We miss what our blinders do not let us see.

If we tried to look at the whole tapestry of American history we would see something very different than a triumphalist narrative. As the historian Walter Johnson has written, American history has unfolded from the juncture of empire and anti-Blackness. The genocide of Native Americans paved the way for the creation of mass plantation slavery.

In his new book, The Broken Heart of America, Johnson presents a re-telling of American history. The book challenges all prevailing views of what we thought American history was about. Johnson acquaints us with an alternative perspective and a largely unknown cast of characters. Where characters are known, Johnson sees them in a new light. Others he mentions seem to have been purged from collective memory.

When Napoleon sold the Louisiana Purchase territories to Thomas Jefferson and the United States he did so without regard for the Native American inhabitants of that land. Jefferson sent Lewis and Clark west, in part, to spy on and enumerate the Indians and to announce to them the subordination of their nations to the United States.

Indian removal was a central project of the westward expansion and it was incredibly violent. Many of the treaties made were with Indians who were being dispossessed a second time. Johnson discusses the role of William Harney, a second lieutenant in the U.S. Army and a white supremacist. The Native Americans called him “Woman Killer”. Harney later became a general. He was a southerner and a slaveholder.

Harney gained fame for leading a viciously punitive expedition against the Sioux in 1854. He was selected by Jefferson Davis, then Secretary of War (and later president of the Confederacy), for the Sioux mission. Harney would not accept the Sioux’s request to negotiate. His forces trapped and massacred 86 men, women and children. Earlier, in 1834, Harney had beaten an enslaved woman, Hannah, to death with his cane. He had misplaced his keys and he blamed her for hiding them.

Harney’s actions in killing Hannah were questioned by authorities but he was never punished. After his case was removed to a pro-slavery jurisdiction he was quickly acquitted of murder. Harney’s acquittal is an early historical example of the type of justice we have so frequently seen where police avoid punishment even in the relatively rare situations where they are charged.

Johnson also tells the story of Frances McIntosh, a free Black sailor who was lynched in St. Louis in 1836.This is likely the first lynching in the history of the United States.

Two white men accosted McIntosh on the street. Because there was no uniformed police in the city in 1836, McIntosh resisted when the white men tried to drag him to jail. He drew a knife and killed one of the men. He tried to kill the other as well.

McIntosh attempted to escape but he was surrounded by a crowd of 50 men who took him to jail. A further mob formed, moved on the jail and they removed McIntosh. He was moved a couple blocks away. The neighborhood fire company proceeded to stack wood around McIntosh’s feet. McIntosh begged to be shot as he was burned alive. No one was ever convicted of this murder either.

The newspaperman, Elijah Lovejoy reported the story in his newspaper the St. Louis Observer. The reaction against Lovejoy was so fierce, he had to leave St. Louis for Alton, Illinois, across the Mississippi. He had already survived three attacks on his printing press. The judge who had refused to convict anyone in McIntosh’s case made remarks insinuating that abolitionists, including Lovejoy, had incited McIntosh in the stabbings.

In the following year, a St. Louis mob sought out Lovejoy and set fire to the Illinois warehouse where he kept his press. Lovejoy was shot and the mob literally carried his press down to the banks of the Mississippi where they broke it into pieces and tossed it into the Mississippi. Lovejoy became the first abolitionist martyr. No one was ever convicted of Lovejoy’s murder. The jury foreman was a member of the mob attacking Lovejoy and the judge also doubled as a witness in the proceedings.

In the early 20th century, Johnson recounts the story of the East St Louis Massacre of 1917. Over a two day period in July 1917, a mob of over 1000 white men turned on their black neighbors, shooting them, hanging them from lampposts and burning their bodies in the street. Other cities including Chicago and Tulsa experienced similar massacres.

I offer these vignettes to show the depth of our white supremacist history. They are arbitrary but quite representative. When people wonder why nothing ever changes with police murders of black people, I would cite history. We have remained unwilling to look at and acknowledge the centrality of racism in the American experience.

We need something like a Truth and Reconciliation Commission as was done in South Africa after apartheid. The purpose would not be to determine guilt or innocence of historical actors. It is about bearing witness and truth-telling so there is a more honest historical record.

When there have been efforts to look at our history, such as with the Kerner Commission in the 1960’s, the government and corporate leaders ignored the commission’s findings.

It is past time to get over the fairy tale version of American history. To extirpate racism and white supremacy, we need to study it, understand its manifestations, and dig it up by the institutional roots.

As I write, the United States approaches the catastrophic number of 100,000 coronavirus deaths. Every one of those deaths was a person with a life story, family and friends. The level of tragedy is epic. So many lives snuffed out so quickly.

Yet President Trump says we have prevailed over the virus. This is undoubtedly his George W. Bush Mission Accomplished moment.

80% of the deaths were people over age 65, with many concentrated in nursing homes. Among the failings of the government response, I think we need to look at why so many in nursing homes have died. Our response seems weak and compromised by fatalism. Among the questions that need to be asked: did it have to be that way? Could we have better protected this population?

I am struck by the too-casual acceptance of these deaths, almost like the elderly are expendable. The cheerleaders in a rush to re-open the economy are ready for sacrifice – of others, especially older workers, minorities and the poor. The only thing that appears to matter to President Trump is his re-election which, in his estimation, demands reopening the economy at any price.

I think it is fair to say our leaders in the Trump Administration have a poor handle on what to expect next from the pandemic. Increasingly, the dominant perspective turns science and public health into an inconvenience. However, at this point, further disasters may be a more plausible scenario than any rapid recovery. Will there be a second wave? Nobody knows.

Who can forget Texas Lt. Governor Dan Patrick saying that there are more important things than living as a justification for re-opening the economy quickly. Really? There are more important things than living? I think I want a list.

Patrick, age 70, suggested he and other grandparents would be willing to risk their health and their lives to get the U.S. back to work. Is this a sacrifice for Wall Street?

Other right wingers like Glenn Beck seconded Patrick. On March 25, Beck said:

“I would rather have my children stay home and all of us who are over 50 go in and keep the economy going and working even if we all get sick. I’d rather die than kill the economy.”

Some younger folks on social media have joked about the pandemic as “boomer remover”. A journalist for the British newspaper the Telegraph suggested that the coronavirus could benefit the economy by disproportionately “culling” elderly people.

The lack of empathy demonstrated is impressive. What does it say about our society that some can think about older people so dismissively? I can appreciate anger and resentment that boomers have botched climate change and have promoted a grossly unequal economy screwing the young but this sentiment that older people should sacrifice themselves for that abstraction, the economy, is bizarre.

These attitudes are rooted in ageism and the devaluation of the lives of older people. Capitalism increasingly treats workers over age 50 as dead wood, to be scrap-piled. Even before the pandemic, getting a competitive job if you are over 50 was not easy, even for those highly competent with great resumes. The pandemic will make it even worse. Age discrimination is likely the ongoing normal.

Ageism became quite blatant in policies around whose lives should be saved if equipment or medical supplies became scarce. Who gets the ventilator or rationed life-saving equipment? Age-based triaging appears to be very much a part of the medical world although its legal and ethical underpinnings remain cloudy. There is some valuation of youth over age going on. How and why our public health system was so ill-prepared that we got to triaging remains an outstanding question.

I think readers might be surprised to learn the intellectual origins of the idea that some life is more valuable than other life. The idea did not come from nowhere. It is rooted in Nazi ideology, in the idea of “life unworthy of life”.

The German Nazis made distinctions about what segments of the population had no right to live. They targeted people with serious medical problems and those considered grossly inferior by their racial policies.

Among those deemed “unworthy life” were those who were incurably ill, large segments of the mentally ill, the feeble-minded and retarded and deformed children. The Nazis drew from the work of two German professors Karl Binding and Alfred Hoche who saw destroying “life unworthy of life” as a healthy, compassionate treatment. It was about protecting the integrity of the Volk, the collective. Categories of people were seen as “human ballast” or “useless eaters”.

Promoting the idea that the loss of thousands of older people (and many more to come) is an acceptable cost for re-opening the economy is morally debased. All lives are equally valuable and as should be obvious, following in a direction pioneered by Nazis would be a form of ageist exterminism. We all deserve a chance to live life to the fullest for as long as we can. I would not hesitate in saying I would like to see my grandchild grow up.

Reopening the economy is admittedly tricky but President Trump is now indulging in both minimizing and denying the extreme harm we have all witnessed. 100,000 deaths is nothing to be proud about.

The final disrespect to all the elderly folks who have died is that the Trump Administration has refused to authorize FEMA funds to help families cover the cost of burials. FEMA has helped pay for the burials of victims of past disasters like in Hurricane Katrina and Superstorm Sandy. Over 30 states have requested the funding but to no avail.

Older people deserve better. We are all in this together and public health must protect everybody and try to minimize all casualties, elderly included. That must remain a top priority goal indefinitely.

Being over three years into the Trump Administration, it is a good time to do an accounting of how our environment has fared. The results are not pretty: fifty years of progress are being trashed. We are now going backward on clean air, clean water, endangered species and protected wilderness and habitat.

As a climate change denier, President Trump made the grievous mistake of withdrawing the United States from the Paris Climate Agreement. Still, I think the Trump Administration’s most tangible harm has been in the multiple rule changes of his EPA, the Environmental Protection Agency.

The cumulative picture is dark. Does anyone remember the Cayahuaga River on fire? Welcome back! This is the de-regulatory agenda to in the words of Grover Norquist shrink the federal government to “drown it in a bathtub”.

The Environmental Protection Network, a group of EPA alumni working to preserve the nations’s bipartisan progress on the environment, put together a long list of the Trump EPA’s rule changes and I wanted to highlight the most egregious:

• Repeal of Obama clean power plan. In 2018, the EPA repealed a rule that limited harmful emissions from power plants. The new rule, the Affordable Clean Energy Rule, weakened air quality protection by increasing exposure to fine particles and ozone in the air. The rule change will hurt those with asthma and respiratory illness.
• Mercury emissions. In April, the EPA withdrew findings by previous administrations that regulating emissions of mercury and other air pollutants was “appropriate and necessary”. Power plants are the largest source of mercury emissions in the U.S.. Mercury is a neurotoxin that damages the brain of developing fetuses. It also increases risk of heart attack for adults.
• Methane. EPA proposed roll back of 2016 regulations that limited emissions for methane during oil and gas production and processing. They actually propose to entirely remove methane transmission and storage from regulation. Methane is a powerful greenhouse gas worsening climate change.
• Hydrofluorocarbons. In February, the EPA relieved businesses of the requirement to conduct leak inspection, repair leaks and keep records for refrigerator and air conditioning equipment containing hydrofluorocarbons or other “climate super pollutants”. Hydrofluorocarbons previously damaged the ozone layer and even by the EPA’s own analysis, the new rule will significantly increase greenhouse gas emissions.
• Vehicle Fuel Efficiency. On March 31, the EPA and the National Highway Traffic Safety Administration rolled back successful clean air regulations and fuel economy standards that reduced greenhouse gas emissions, improved air quality and increased fuel economy. The Obama fuel economy target was 54 miles per gallon by 2025 while the Trump EPA capped that target at 34 miles per gallon by 2021. The roll back worsens climate change and increases air pollution.
• PFAS. In February 2019, the EPA proposed a wholly inadequate plan to prevent toxic PFAS or Per- and Polyfluoroalkyl Substances from continuing to contaminate drinking water. The agency released a groundwater cleanup guidance that failed to set an emergency removal level and it has refused to develop drinking water health advisories for PFAS chemicals, leaving it up to the states.
• Lead in drinking water. Flint, Michigan highlighted this problem and you might have expected progress. Unfortunately, in November 2019, the EPA proposed a rule that failed to lower the action level for lead in drinking water that triggers corrosion control and lead line replacement. Lead can damage the central nervous system, cause learning disabilities, behavioral problems and lower IQs in children.
• Superfund clean-up. Rather than increasing clean-ups at Superfund sites, the EPA has focused on the paperwork exercise of deleting previously cleaned-up sites from the Superfund National Priorities List.
• Federal infrastructure projects. The National Environmental Policy Act had previously forced all federal infrastructure projects to take into account effects on the environment. Under new rules, builders of highways, pipelines (think Keystone XL) and other major infrastructure projects would no longer have to consider climate change.
• Endangered species. New rules change the way the EPA will implement the Endangered Species Act, weakening protection for threatened species and critical habitat and making it harder to take future risks from climate change into effect.The EPA can now consider economic interests when deciding whether to list a species. This was previously forbidden.
• Pesticide risk. New EPA rules released in March revised methods for assessing pesticide risks that will allow widespread harm to many of the nation’s most endangered plants and animals. The rules, requested by the pesticide industry, overlook and ignore many of the common ways that protected species are killed by pesticides such as downstream impacts of pesticides that runoff into streams and rivers.
• EPA criminal enforcement. The EPA has turned into a toothless tiger that looks the other way at environmental violations. Criminal prosecutions are at a 30 year low and many violations that would have been prosecuted in the past are now negotiated with violating companies.
• Pandemic. The EPA has weakened pollution reporting and compliance rules during the COVID-19 pandemic. Polluters can now operate against existing regulation and evade reporting their pollution levels. Nine states have filed suit to stop this. Self-reporting effectively de-claws oversight.

This partial list tells only part of the story. Each year since 2017, the Trump Administration has proposed major cuts in funding for EPA programs and the money it provides the states for grants and loans. The Trump budget requests in fiscal years 2017, 2018 and 2019 either zeroed out or greatly reduced all EPA programs. Congress has repeatedly ignored these budget requests but the requests send an unmistakeable message.

The Trump Administration has also used executive orders to achieve its anti-environmental goals. Trump issued an executive order that called for a 30 percent increase in logging on public lands. He also used an executive order to dramatically downsize two national monuments in Utah, the Bears Ear and Grand Staircase-Escalante.

When you add it up, there is a common thread. The Trump EPA has replaced any notion of a public interest with subservience to the private interests it was created to regulate. This is the very definition of corruption.

We all have an interest in a clean environment, regardless of political perspective. Clean air and water are not optional. We are so going the wrong way.

I had not planned to write about El Salvador. But then I read Carolyn Forché’s memoir What You Have Heard is True. Forché’s book is a riveting account about her time in El Salvador in the late 1970’s when the country was on the verge of civil war.

The book is also about a young woman growing up as she learns about a world far different than anything she knew existed.

As a 27 year old student living in California, Forché is approached by a mysterious man, Leonel Gómez Vides, who shows up at her door. After three days of non-stop talk, Leonel persuades Forché to go to El Salvador to learn about life there. He knew war was coming to his country and he hoped Forché, as an aspiring poet and writer, could explain his country to the American people.

Leonel called what he was doing his “reverse Peace Corps”. Forché would be going to El Salvador not to help the Salvadoran people but to educate herself about Central American realities.

The realities Forché discovered were brutal. The overwhelming majority of the people were desperately poor. Houses were made of mud and twigs and things you would find in a dump. There was no decent sanitation. One in five children died before the age of five, mostly of dehydration caused by dysentery. Life expectancy was about 47 for men, a little higher for women.

Salvadorans typically worked from dawn until dusk but average household income was about $400 a year. On the other end of the spectrum, 30 or 40 super-rich families owned nearly everything in the country. They lived in a regal style, utterly disconnected from the lives of the majority. There was no middle class.

Once in El Salvador, Leonel took Forché all over the country, introducing her to people from all walks of life including high-ranking officials in the Salvadoran military. For Forché, it remained unclear who Leonel was and what he was up to. Leonel owned a small coffee farm, was an expert marksman, was a motorcycle racer and he had an interest in Formula-One racing cars. He knew people all over the country and was consistently warmly received.

Forché and many others wondered if Leonel was with the guerrillas or with the CIA. No one knew. Leonel cultivated mystery, explaining that El Salvador was “a symphony of illusions”.

Leonel taught that the cultivation of mystery was centrally important in such a dangerous place. Ambiguity about identity could save your life. Death squads disappeared many as Forché saw with her own eyes. She saw prisoners confined and tortured in small wooden boxes about the size of washing machines. She herself had to run on one occasion to escape from a death squad.

This was Forché’s education in oppression. During her time in the country, more and more Salvadorans were disappearing with mutilated bodies later found on road sides. The U.N. Truth Commission established as part of the peace accords after the war found that 85% of the killings, kidnappings and torture were the work of government forces including paramilitaries and death squads.

Forché learned about the role of the United States in supplying, supporting and training the Salvadoran military. Both Presidents Carter and Reagan poured billions of dollars into propping up a military dictatorship that misappropriated huge sums for its own corrupt purposes.

U.S. military advisors trained many Salvadoran officers in the methods of torture at the co-called School of the Americas. The role of the United States in training torturers remains little known. As Leonel told Forché:

“I promise you that it is going to be difficult to get Americans to believe what is happening here. For one thing this is outside the realm of their imaginations. For another, it isn’t in their interests to believe you. For a third, it is possible that we are not human beings to them.”

The civil war that came claimed 75,000 lives with 8000 disappeared and it lasted over twelve years. 500,000 people were internally displaced and another 500,000 became refugees leaving El Salvador altogether. Within a week after Forché left El Salvador in 1980, Archbishop Oscar Romero was assassinated.

In December 1981, soldiers from the U.S.-trained Atlacatl Battalion massacred 1200 civilians at El Mozote. Although the U.S. trained the troops that carried out this atrocity, no U.S. government official has ever apologized for our role. El Salvador was the largest U.S. counterinsurgency effort after Vietnam and before Iraq.

You might ask: why was the U.S. siding with a handful of oligarchs and their fascistic goon squads rather than the masses of poor peasants, students and workers?

Now 40 years later, we hear almost nothing about El Salvador. We evince little interest in countries outside America. We know Trump called it a “shithole country”. We know many families and individuals have tried to make the incredibly dangerous journey to the U.S. Sometimes we hear about MS-13 and the criminal gangs, born in U.S. jails, who got deported back.

No context is ever provided. All the Salvadoran refugees and asylum seekers can only be understood as a direct consequence of the war that ravaged El Salvador, a war the American government largely financed. Bad conditions were then further complicated by the devastating earthquake in 2001.

We Americans forget or remain uncomprehending of our responsibility in providing money, arms and training for the death squads who propped up Latin American authoritarian rulers. We were the imperial power behind the scenes, often calling the shots. We should at least understand that our country bears a high degree of responsibility for creating the circumstances that made it necessary for migrants to seek shelter here.

Carolyn Forché did not forget what she saw. To address immigration here, solutions must reduce poverty and inequality there. A wall on our southern border is a simpleton non-solution. Forché’s book exposes rot and it should force a re-examination of conventional assumptions both in our government and among the American people.

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.