Podcast: Michael Bobelian on Fortas, Warren, Johnson, Nixon and the Shaping of the Modern Court
President Nixon visited the U.S. Supreme Court on June 23, 1969. In this photo he is accompanied by outgoing Chief Justice Earl Warren (left) and incoming Chief Justice Warren Burger (right). (Richard Nixon Presidential Library)
Michael Bobelian is author of “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon and the Forging of the Modern Supreme Court.”
Fifty years ago, President Nixon appointed Warren Burger as chief justice of the United States Supreme Court. He would go on to appoint three additional justices.
Nixon believed these appointments to be one of the central pillars of his presidential legacy. On this edition of the Nixon Now Podcast, we explore this topic with Michael Bobelian, contributing writer for Forbes.com, and author of “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon and the Forging of the Modern Supreme Court.”
Jonathan Movroydis: You are listening to the “Nixon Now Podcast.” I’m Jonathan Movroydis. This is brought to you by the Nixon Foundation. We’re broadcasting from the Richard Nixon Presidential Library in Yorba Linda, California. You can follow us on Twitter @nixonfoundation or at nixonfoundation.org. Fifty years ago, President Nixon appointed Warren Burger as chief justice to the United States Supreme Court. Nixon would go on to appoint three additional judges. He believed these appointments to be one of the central pillars of his presidential legacy. Historians like our guest today believe these appointments shaped the modern court. His name is Michael Bobelian. He covers the Supreme Court at forbes.com and is author of “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court.” Michael Bobelian, welcome.
Michael Bobelian: Thank you for having me.
Jonathan Movroydis: Just to start off, can you tell us a little bit about the genesis of the “Battle for the Marble Palace?”
Michael Bobelian: Yes. It started a few years ago and I was perusing the internet, and I don’t remember the reason, but I was looking at a list of Supreme Court nominees and it was on the U.S. Senate website and it’s still there. It’s been updated since then, but it’s still the same site. And the nominees were dating back to George Washington and what I noticed really struck me as something odd, throughout the 20th century’s, most of the nominees were confirmed within days or weeks. One of them was confirmed in a single day and often through voice votes where the Senate would just together, unanimously, just say yay or nay. So it seemed like a very cavalier, casual process. And I’d gone to law school in the ‘90s. I remember the Robert work confirmation fight in 1987 and I started to wonder, “Well, what happened? Well, how could it have been so different through much of the 20th century?” And as I looked further, I saw that these differences were even more stark than I thought. Hearing, for instance, were often very short, some lasting just five minutes. Nominees weren’t put through background checks or ideological litmus tests.
And then all of it changed dramatically in 1968 when Lyndon Johnson nominated Abe Fortas, who had been already an associate justice to become the chief justice for the retiring Earl Warren. And if you look at the list, you’ll see that there was immense discombobulation and revolution, if you will, in the confirmation process, and that’s why I wanted to explore it in terms of what happened in 1968 all the way from 1971 between two different presidential administrations, four different nominations where what seemed like a quick, easy, cavalier process where the Senate had largely rubberstamped nominations to become this all out political battle. And that was the question I wanted to answer, and then the answers which we can get into not only led to an understanding, a better understanding of that era, but a much better understanding of how confirmations have played out ever since then, over the past half century.
Jonathan Movroydis: Where did you conduct your research for all of this?
Michael Bobelian: Most of the research were at 20 different archives, presidential libraries, the Johnson Library, Nixon Library, as well as the Ford Library, and that was because Gerald Ford was a house minority leader in 1970 when there was an attempt to impeach Justice William Douglas and Ford was sort of the point man on the efforts. So I went to the Ford Presidential Library for that. The Johnson and Nixon Libraries for their nominations and all the documents and oral histories that are available on their nominees and the ensuing confirmation fights. And then outside of the presidents, I went and searched various justices such as Earl Warren, Abe Fortas, William Brennan, and a couple of others. And most of those are at the Library of Congress. Abe Fortas is at Yale’s. And then the final people that really had valuable archives were the senators involved in a lot of these big battles in the Senate over the Supreme Court. And most of those dealt with conformation, but in the ‘50s and ‘60s, they also dealt with other legislative actions targeting the Warren Court.
So put it all together, it was about 20 archives and then you look at the periodicals from the era, you know, the major newspapers, magazines, and even sometimes transcripts of television news shows… And those mostly came from electronic databases that I had access to, you know, at a university or at the New York public library. And then from there, you know, books, law review articles, academic articles, sort of the secondary sources that give you both the context of the era, but also fill in details that you can’t necessarily find otherwise. And I would give people an example of a scholar did an article in 1972 and got to interview people who were alive then that are no longer around. They, in essence, become a primary source for those interviews. So put those altogether, I think my bibliography and those together are close to a hundred pages, but that’s how I kind of put the whole story together.
Jonathan Movroydis: Looking at the title for your book, “Battle for the Marble Palace,” why do we consider in American politics in our society, the Supreme Court? Why is there always a battle behind it or appears to be?
Michael Bobelian: Right. Well, there wasn’t always a battle. I think that’s one of the central themes of my book. And the battles really started. You have FDR with the court packing in the ‘30s, but really, they became a perpetual battle starting in the late ‘60s. And I think the reason why is because as a country, for better or worse, but it does differentiate us from other democracies and that we have granted our highest court a lot more power than most countries do. In most countries, the court rarely is the final arbiter of these thorny constitutional questions, whether they involve abortion, or gay rights, or the power of the President versus Congress and things like that. In most democracies, it’s the legislative branch and to some extent, the executive branch that is the final arbiter of those issues. So we have granted our Supreme Court immense power. And when an institution has power, people are going to want to control or influence that institution. So just from a big picture point of view, that’s the reason why we have these battles. In terms of what specifically took place in the ‘50s and ‘60s that led to these confirmation fights, the Warren Court really was a revolutionary court. Everyone remembers Brown v. Board and desegregation, but in many facets of American life, whether it was putting an end to the excesses of McCarthyism in the ‘50s, banning prayer in schools, coming out with a one person, one vote legislative districts, of course, Miranda and all the rulings on law and order, as well as obscenity, and so, you have all these areas of American life which were appended by the Warren Court and by the late ‘60s, people really start to see the power of the court and what it can achieve outside of the traditional political process. And critics that meant that the court was acting as a Supreme legislative branch and subverting the will of the state governments, and Congress, and so on. So when people see that and really come to recognize it, and not just Brown and civil rights, but in all of these areas that the court tackled, then people realize, again, that if you can control the court, if you can influence it, then you can direct public policy in a way that, you know, is favorable to your interest.
Jonathan Movroydis: Your book focuses on four central characters, Justices Abe Fortas and Earl Warren and Presidents Johnson and President Nixon. Let’s start off with Justice Fortas. Could you give our audience a little idea of what his background was and what was his view of American jurisprudence?
Michael Bobelian: Sure. I mean, he’s like the classic American success story. He is son of Jewish immigrants living in Memphis, came from very modest means, but he was brilliant and he was very hardworking and he went to Yale, graduated Yale Law School, graduated second in his class, and he basically had this superstar career in the law. He worked in the government during the new deal, and then he co-founded one of the nation’s leading law firms after World War II. And he was known as not just a great lawyer. In fact, he was called a brain surgeon by his colleagues, the person you’d call in when all else fails. So there’s brilliant lawyer. And he was assigned by the court to argue in the case of Gideon V. Wainwright, who had set the precedent for having lawyers for indigent clients. But he was also a great political advisor and he advised LBJ throughout his career in politics. And as I said, he was known as this brilliant lawyer, a political advisor, a really savvy Washington operator. And at the same time, he was a reliable liberal and when LBJ appointed him to the Court in 1965, he wanted a reliable liberal jurist on the court, and Fortas fit that mold. So put it all together, he seemed to be an ideal candidate in LBJ’s eyes. It also helped that he was very close to LBJ. They were not only…he wasn’t only LBJ’s lawyer and political advisor, he was also his close friend. So you put all of that together, his talent, his relationship with the president, and his, you know, various talents, if you will, not just in the law but in politics. And he made for an ideal nominee in LBJ’s eyes to become the next chief justice.
Jonathan Movroydis: He was already an associate justice by 1968. Why did Johnsons make it more seemingly difficult on himself by choosing Abe Fortas as chief justice and leaving the associate, basically, opening up a new confirmation process for both?
Michael Bobelian: You know, that’s a great question. And in hindsight, he made a great blender. I think what had happened were a couple of things. One, he assumed, you know, he was known as the master of the Senate long before, you know, the great Robert Caro call him that. So he assumed that he would get his way with the Senate and it was a fair assumption, right? He had passed those civil rights bills that no one thought could ever get passed to Southern filibusters. He had passed the great society in the mid 1960s. So I think he assumed, and just about everyone in Washington assumed that he would have his way in the Senate. And then history also pointed to an easy a confirmation for Fortas, as I said, when we started the conversation. Throughout the 20th century, nominees had been confirmed with great ease. In fact, there was only one rejection, that of John Parker in 1930 leading up to Fortas. And Fortas, in 1965, navigated these tepid waters very easily. He was confirmed in about two weeks through a voice vote where, as I said, the whole Senate just stood up and yelled yay in his favor, and his hearings lasted just three hours and he was throwing softball questions during the hearings and there was no background checks or litmus tests, all those things that had been the case, LBJ and others assumed would still be the case. That all of a sudden, the Senate wouldn’t come up with all this new degree of level of scrutiny.
So LBJ assumed that both has power over the legislature as well as past history of how easily people were confirmed by the Senate, I think he believed that it would be a shoo-in in picking Fortas, even though some of it, his advisor said, you know, “This is going to be tough. You’re in the last few months of your presidency. The opposition in the Senate feels like you might be weaker than you were in the past. Maybe you pick someone else, maybe you pick a centrist or perhaps even a Republican to ease the confirmation.” And he didn’t wanna go in that direction. Ideologically, he wanted a liberal. And in terms of his confidence level, it had remained very high in that he thought he would definitely get Fortas confirmed.
Jonathan Movroydis: The perception was that Fortas was the sort of characterization in the epitome of radicalism on the court. Was this a correct assessment?
Michael Bobelian: No, I think he was a middle of the road liberal for the people who were on the court. You’re talking Thurgood Marshall, Earl Warren, William Douglas, Hugo Black. I don’t think he was any more radical than they were, but to many elements of American society, particularly in 1968, that liberal majority on the court seemed radical. So within the context of other jurors, I think he was a liberal jurist, but you know, nothing in the extreme, but within the context of the critics of the liberals on the court. Yes, he would seem to be…he would appear to be radical. And if you look at the polling data from 1968, the court had reached its bottom in terms of favorability of the positive emotions that American public had towards him. And the majority of Americans wanted conservative jurists on the court at that point. So, you know, from that point of view, you could say, yes, he was someone whose ideology was definitely found upon and thought to be too liberal. But in terms of people within the court, he was, you know, he wasn’t any more liberal than the other people I named.
Jonathan Movroydis: Could you take us through how his nomination to chief justice was rejected and how he ultimately resigned even his associate justice position?
Michael Bobelian: Sure. So he’s nominated by LBJ in June of 1968 and the opposition was led by Strom Thurmond of South Carolina. And I think most people will remember him because he went on to serve for decades longer as well as Robert Griffin, who was then a little-known Senator. He was a freshman Senator at Michigan. And those are sort of the Republicans who breached the orders of their own minority leader, Everett Dirksen. So they led the Republican charge against Fortas and then they were allied with Southern Democrats who despise the Warren Court because of the civil rights rulings in the ‘50s and ‘60s. So they made a few arguments and some of them sound familiar now that we’ve had recent battles with Merrick Garland, and Neil Gorsuch, and Brett Kavanaugh. And one of the arguments was that LBJ was a lame duck because he was in his last month in office.
It was bit of a tongue in cheek argument and they even admitted that in the papers in the archives, I found that. But they said, “Since LBJ is only gonna serve a few more months, the next president should select Earl Warren successor.” So they made that argument, then they said that Fortas was LBJ’s crony. and in that regard, they were right in that the two were probably too close by modern day standards because Fortas maintained a very close relationship with Johnson, even after he became an associate justice. He continued to attend cabinet meetings. He helped write speeches, he helped draft legislation, he gave legal advice. At one point, the Congressman had called the White House and asked about a pending bill and the secretary said, “Well, the President is out of the office right now, but justice Fortas is handling the bill for the White House.”
So in that regard, they were correct and those two arguments that LBJ was a lame duck and Fortas was a crony, as well as questions about Warren’s retirement and it gets very convoluted, but whether he actually did retire or not, they kind of had a holding pattern. They had a delay pattern, and so, there was no quick confirmation. And then by the summer of ’68, the hearings begin and Fortas is basically attacked for everything the Warren Court had done. And this is an essential part of my book. A lot of the book deals with previous legislative attacks and criticism of the Warren Court, but the fact was that all of those attacks fell just short of being able to undercut the court, or reduce its jurisdiction, or all these other attempts made to kind of weaken the Warren Court. And now, Earl Warren’s enemies, because they couldn’t reach him, they were going for his heir apparent, who was Fortas.
So Fortas is attacked for in the law and order rulings, for the obscenity rulings, for the abandoned school prayer, even though in most of those cases he wasn’t even on the court yet. And those attacks really bludgeoned him. And then there were some unorthodox tactics used, obscenity was a big culture war issue of the day, long before abortion and so on. And what Strom Thurmond did was he held what was called the Fortas Film Festival where he broadcast some of these X-rated movies within the senate’s rooms to showcase how immoral, if you will, Fortas and the Liberals were on the court for allowing these movies to be aired. And that really hurt Fortas. That film festival lasted about six, seven weeks, and he was called Mr. Obscenity, and that really hurt his standing in front of the public. And all of this culminated in a filibuster and there’ve been 160-plus nominations for the court up to that time and Fortas was the first person to be a target of a filibuster, and ultimately, that filibuster triumphed and his nomination was withdrawn by LBJ. So as I said, a lot of parallels to what happened in recent years with Garland, and Gorsuch, and Kavanaugh.
Jonathan Movroydis: Could you tell us about Earl Warren sort of his perspective, his judicial philosophy, ultimately who he was and how he was appointed to the court and his tenure there.
Michael Bobelian: Right. He’s a complicated figure because he’s the type of justice that we don’t get anymore. He was District Attorney of Alameda County in Northern California and then the Attorney General of California. And then the three-term governor of California. He was the first three-term governor there, and he won reelection with more than 90% of the vote, which was an astounding accomplishment for a statewide election. And he was a very bipartisan person. He was progressive. He was a Republican, but he was progressive-minded and very bipartisan. And by that I mean, if an idea had small government roots, he’d be for that. If it had big government roots, he’d be for that too. So you can’t easily classify him or categorize him using modern-day labels.
So in 1952, Eisenhower is nominated to be president, becomes president. And he promised Warren a job on the Supreme Court. And then when the first opening took place, when the Chief Justice Fred Vinson died unexpectedly of a heart attack, Warren was given the job in the fall of 1953. And at the time, you know, I looked through a lot of material to see, did anyone or could have anyone predicted what a revolutionary jurist he would turn out to be, and what a liberal jurist you would turn out to be. And the fact when no one predicted it. There’s a lot of material from Eisenhower as well as his attorney general who vetted Warren. And when they looked at Warren, they said he was a middle of the road Republican, much like Eisenhower was, and they really thought that would be the case. And in many ways, they were right. Warren as the attorney general and district attorney all those years, he was very tough on crime.
J. Edgar Hoover thought that Warren was one of the best prosecutors in the country. He also was against the one person, one vote legislative districts while he was governor of California. So in a lot of issues, he as a judge on the court ruled differently than he had as a politician in California. So he kind of surprised people in terms of how liberal he turned out to be on the Supreme Court. And he leads this revolution on the court. And I would argue, you know, the ‘60s had been so well documented, and there are so many genetic moments in that era, but I think the court has been overlooked outside of Brown v. Board. The courts often overlooked, but I would argue until LBJ comes into office and the great society Congress of the mid-1960s, that Earl Warren was probably the leading liberal in America in terms of what he was able to accomplish through the court from a liberal public policy standpoint. So he left behind this huge legacy, but also very controversial legacy because as much as liberals championed him, and that included Presidents Kennedy and especially Johnson, Conservatives condemned him. They accused him of acting like a legislator rather than a court. They accused him of stretching the constitution beyond its proper meaning of creating an activist judicial institution. And these are not just Republicans or Conservatives in the political branches, Conservatives within the court, like Felix Frankfurter who was appointed by FDR. So he wasn’t particularly very conservative ideology, but conservative in terms of his jurisprudence.
They also heavily criticized Warren for stretching the court beyond what anyone thought the court should be able to do. So he became this very controversial figure and he was targeted, as I said, with lots of speeches condemning him and criticizing him. Some of it was outlandish, the Right Wing Group, the John Birch Society in the 1960s had this impeach Warren campaign and they had billboards all over the country. So he was this, like I said, real lightning rod because of what he was able to accomplish, for some people, seen as great accomplishments and by others, seen in a very negative light.
Jonathan Movroydis: Could you take us through some of the accomplishments and tell us to… In your research, did you find anything about his ideological evolution from a middle of the road Republican governor to someone who was really a liberal revolutionary on the court?
Michael Bobelian: Sure. I would say in terms of his rulings, you know, we all kind of know about Brown v. Board and desegregation, but in terms of civil rights beyond Brown, Warren Court repeatedly stood on the side of civil rights advocates. So there are a host of other rulings that had been forgotten in the popular understanding of that era, but they shielded the freedom riders, they shielded the protestors, they shielded the NAACP from intimidation. Whenever the civil rights bills that were finally passed in the ‘60s, whenever they were tested, scrutinized under the constitution, the Warren Court protected them from constitutional scrutiny as well. So you have this huge number of rulings in civil rights that go beyond Brown, but then you have these other areas that have kind of been forgotten now. One of the big ones that really surprised me were what were called Red Monday Rulings. And in ‘56 and ‘57, the Warren Court put an end to the excesses of McCarthyism, the loyalty laws, the black list, and the really heavy, strenuous investigations that were ruining people’s lives, whether done by the executive branch, or the state governments, or by Congress. And a series of these rulings were called Red Monday by the courts critics, but they really played a big role in, not just like I said, for civil rights advocates, but they played a big role in protecting people’s constitutional rights outside of the typical rulings that we remember from that era. And then in the ‘60s, you get the law and order rulings like Miranda and Gideon V. Wainwright that start to shield, usually criminal defendants from what the Warren Court thought were unfair police tactics or unfair prosecutorial tactics. And in that case… And, you know, Warren was accused of hypocrisy because he and the people who had worked under him in California when he was a prosecutor had often used, relied upon these same tactics. So people wondered, “Well, why, you know, if it was okay for him, then why isn’t it okay for all these other police districts now that he’s on the court?”
And besides the law and order rulings, you also have the ban on school prayer, which was a 1962 ruling, and that’s a practice that dated back to the colonial era and it ended up being the court’s most unpopular ruling, and about 80% of Americans approved of prayer in public schools but the court had said it violated the constitution and put a stop to it. So that really made the court unpopular among evangelicals and social conservatives. And then you get the one person, one vote legislative districts, which basically re-jiggered almost every legislative district in the country, both at the state level as well as the federal level. And that upset a lot of people as well. So you have all these rulings that upset various parts of American society. And one more that I’ll mention, and this ties back into how it was used against Florida for the obscenity rulings. You have a real culture clash in the ‘60s, right? You have the sexual evolution, and “Playboy Magazine” is the second most subscribed magazine of the era. At the same time, about three quarters of Americans wanted to ban adult magazines or movies from their community. So you have this real cultural clash going on and the court was stuck in the middle in terms of trying to balance the First Amendment rights of the people making or distributing these materials versus that of the communities who wanted to keep them away from their kids and their families and so on. And the court got stuck in the middle and it’s a very convoluted jurisprudence. But either way, it again, became a source of criticism and controversy.
Going back to the second part of your question, how he changed. You know, no one has figured it out exactly why he went from being a middle of the road Republican to being this liberal revolutionary. His closest friends suspect that he got to see these issues in a new light, in a more, let’s say, a platonic guardian way where he got to see both sides of the issue rather than just from the standpoint of being the governor or being a prosecutor. And that he actually grew as a person. He started to see, “Oh, wait a minute. If you don’t have equal sized legislative districts, then you have a warped democracy. You have it where a small county in California with 30,000, 40,000 people has the same number of representatives in the state government as Los Angeles County, for instance.” So he started to see as he grew older, “Wait a minute, that’s unfair.”
And then the final thing was he really had this place in his heart for the little guy, for the person who was powerless and that dated back to his upbringing in Bakersfield, California. And so, a lot of these seminal cases, they actually grew out of people just writing letters to the court, representing themselves. And it is well said that a lot of justices would have said, “Well, they’re not following proper procedures and look at the format they’re using.” You know, the court had very specific guidelines for how you can file an appeal. And these would just be letters written by prisoners, for instance. But he told his clerks, “You know what, we’re here to protect those who are powerless, those who don’t have access to great lawyers, and lobbyists, and the ear of a politician.” And so, that’s something that was there early in his life, but that really didn’t show up in his public policy and his public life until he joined the court. And I would say that’s probably the best explanation for his transformation.
Jonathan Movroydis: Moving on to President Johnson, Lyndon Johnson, he was a wartime president. He was also very progressive in the area of social policy, sort of wanting to extend the new deal with his great society, war on poverty programs. What was his vision for shaping the Supreme Court?
Michael Bobelian: Right, great question. He wanted a couple of things from the court. One, he wanted to continue the Warren Court’s liberal jurisprudence. And because he saw what the court was able to do outside of what Congress and the executive branch couldn’t do, for instance, mandating one person, one vote. That was something that couldn’t really be done through the legislative process, you almost needed either a constitutional amendment or the Supreme Court to do it. He also wanted the court to protect his legislative accomplishments. He had remembered, as you said, the new deal. He remembered what happened to FDR in the first term of his presidency where the court kept striking down a lot of the new deal legislation. Johnson knew all of these bills, whether it was the civil rights bills or the creation of environmental laws, or war and poverty, and so on, Medicaid, Medicare. He knew these would be tested in the courts and he wanted to make sure that there were justices there that would shield those legislative accomplishments from constitutional scrutiny. So those were his kind of twin visions of the court, continuance liberal legacy, but also protect my legislative accomplishments even after, you know, he leaves the White House.
Jonathan Movroydis: Richard Nixon campaigns for the presidency in 1968 and he makes the court a big subject of his campaign, specifically the issue of law and order. I think he writes in “Reader’s Digest” magazine that the court is responsible for the criminal forces or partially responsible for the criminal forces winning against the peace forces in American society. Specifically, though, did Nixon, during the campaign, have a vision for the way the court, which be shaped ideologically and what specifically did he want to be challenged in terms of privy decisions and in terms of rulings, or in terms of legislation by the Congress and the Johnson administration before him?
Michael Bobelian: Right. That’s a great question. In terms of this campaign, you are right in that he campaigned heavily against the Warren Court and that was something that had not been done other than Barry Goldwater in 1964. And I always give people a great example. You have FDR, again, going back to the new deal, he’s very upset with the Supreme Court striking down his bills and he has this horse and buggy speech condemning the Supreme Court in the ‘30s, but yet in the 1936 election, he does not campaign against the court, even as other Democrats urge him to, doesn’t make it a campaign issue. So this was something that was new and different, starting with Barry Goldwater, but really being ratcheted up by Richard Nixon in 1968. And law and order was the primary issue that Nixon focused on. In terms of his vision for the court, I would say he had a nascent view of what he wanted the court to look like during the election and it was really once he got elected that that Mason View really started to get fixed in stone, if you will, that really developed and matured. And I think a lot of that is because during the election, it’s not something he had too much time to think about.
But the things he wanted were he wanted justices who were, at the time, called Strict Constructionists, people who would follow the letter of the law and the direct meaning of the constitution and not stretch the constitution, if you will, to apply to these new areas. And that was a big criticism of the Warren Court. And that was something that Felix Frankfurter, John Marshall Harland, the Conservatives on the court were strict constructionist. So Nixon wanted more justices like that. He also wanted justices who would be tough on crime, who would, perhaps, either undo or at least reduce some of the rulings like Miranda.
And then finally, in terms of what he had told a Southern Congressman and Southern audiences was he wanted to appoint justices who would be more favorable to a gradual desegregation. He was not going to try to undo Brown. He said, you know, that’s not something he wanted to do and that’s not something that was feasible, but he did want to appoint justices who would see how difficult that would be in the eyes of southerners and who would be more sympathetic to what southerners might view on Brown. So those are the main things, I would say jurisprudentially, it was this strict construction as people who would kind of follow the letter of the law more closely and wouldn’t be judicial activists. They would kind of refrain from deciding cases on all these different areas of life that the Warren Court was willing to decide upon. So that was his big vision for the court.
And then the last thing I would say is he also had a long-term vision for what the court can accomplish. It was a memo he had received early in his presidency from one of his aids, man named Tom Houston. And it said, “The appointment to the court is one of the least considered aspects of presidential power and that it could impact American life way past a president’s term in office.” So Nixon took that to heart. He wanted people who were young enough to serve a long time and who had the ideology that matched his vision. He didn’t want to pick mistakes such as Eisenhower who ended up picking William Brennan and Earl Warren, who were very liberal. He didn’t want to make ideological errors as his predecessors had. And it’s not just Eisenhower, Harry Truman as well picked justices who didn’t match his ideology. So Nixon was conscientious of that and he was conscious of how he could impact the American society in the long term by picking the right kind of justice. So I would say that was his overall vision.
Jonathan Movroydis: In an earlier podcast, we talk with one guest about the four justices. He appointed Justice Warren Burger, Justice Harry Blackmun, Lewis Powell, and William Rehnquist. Out of the four, there’s really one Conservative on the court, but it’s been said, it’s been written that these justices, like you said, reduced the scope of Miranda, even reduced the scope of other areas of criminal law decided by the Warren Court, including the exclusionary rule in Mapp versus Ohio. Could you give us a sort of an overview about what the court did to, I guess, restrain judicial liberalism in the areas of criminal law and also shape public policy and other matters?
Michael Bobelian: Right. Well, that’s a very big question. First, let me say in terms of the people he appointed, how conservative they were. They were conservative by the standards of that day. I think the country as a whole in the Republican party has become more conservative since the late ‘60s. So I think they were pretty good conservatives by that day. William Rehnquist would be the one person who would be conservative under today’s units of measurement, if you will, as well. The other thing is there weren’t many Conservative or Republican judges available to appoint to the Supreme Court. I just read a memo a few weeks ago. I was looking through some of my old documents and there’s a list, early in Nixon’s presidency of Republican judges on state supreme courts as well as the appellate courts and in terms of federal appellate courts, judges under the age of 60, and as I said, he wanted someone young who could serve for a long time, there’s about a half dozen Republican judges out there. So he didn’t have a big pool of people to pick from in terms of finding, you know, rock-ribbed and reliable conservative. So I would say that’s one of the things Nixon had to contend with, that he just didn’t have a big pool of people there that he could put on the court and he kinda tried to do the best he could with the roster of jurists that were out there.
In terms of the accomplishments of the Burger Court, you know, a lot of those accomplishments, they come very gradually because it takes a while for the liberals on the court to lose their majority and it takes a while for the court and the country as a whole to turn more conservative. In the criminal procedure route area, a lot of what happens is they kind of put an end to these new protections to criminal defendants. So in a way, I see the Burger Court as the backstop. It ends the Warren Court’s liberal legacy. It doesn’t necessarily begin a very strong conservative legacy. It does that to some extent, but not necessarily as conservative as the court became later on, but it does put an end to that liberal legacy. So that’s the way I view it. And then in areas that we don’t normally think about because they’re not hot button issues, but areas in antitrust and regulation, you see the court becoming more and more considered and that plays out in later years in how the economy is regulated, on how the federal agencies function, and how antitrust enforcement works, for instance. So a lot of that legacy, to me, of the Burger Court, specifically before we get to the rank of sort of the, you know, starting in the mid-‘80s and the Roberts court now is that it establishes the roots for the eventual Conservative takeover of the court. And so, it’s not something that takes place immediately, but it sort of sets the roots, establishes the roots and the seedlings bud, and then blossom into the Rehnquist Court, and especially the Roberts Court of the last 15 or so years.
Jonathan Movroydis: Our guest today is Michael Bobelian, contributing writer of forbes.com and author of “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court.” Michael Bobelian, thank you so much for joining us.
Michael Bobelian: Thank you. It was a pleasure.
Jonathan Movroydis: Please check back for future podcasts at nixonfoundation.org or on your favorite podcast app. This is Jonathan Movroydis in Yorba Linda.