THE COMING OF THE NIXON COURT: THE 1972 TERM AND THE TRANSFORMATION OF CONSTITUTIONAL LAW

Vol. 27 No. 5 (June 2017) pp. 73-75

THE COMING OF THE NIXON COURT: THE 1972 TERM AND THE TRANSFORMATION OF CONSTITUTIONAL LAW, by Earl M. Maltz. Lawrence: University of Kansas Press, 2016. 250pp. Cloth, $34.95. ISBN: 978-070062278-8.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff@desu.edu.

Rutgers University School of Law Professor Earl M. Maltz combines two approaches to studying constitutional law—case studies of individual justices and examination of several areas of the law—and applies them to a specific time period in U.S. Supreme Court history, the 1972-73 term. Justifying the latter period partly due to the fact that all four of President Richard Nixon’s appointees were present on the Court initially that year, Maltz contends that “one would be hard-pressed to find another term in the late twentieth century in which the Court dealt with so many issues with major implications for the future of constitutional law” (p. viii). The study endeavors to explain how the interaction of the justices’ disparate views, judicial institutionalism, and changing times influenced case rulings on several controversial topics in the 1972-73 term.

Though there is no grouping of chapters in the book, the topics can be covered in terms of background, areas of constitutional law, and conclusion. Chapter 1 assesses reasons for the
emergence of the Burger Court, named after Chief Justice Warren Burger. These included a backlash against progressive gains of the 1960s together with the election of Richard Nixon in 1968. The chapter likewise presents biographies of all justices who were on the Court in 1972, including Nixon appointees Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Maltz observes that because the balance of power on the Court in 1972 was held by a combination of Nixon appointees and holdovers, the outcome was not easily labeled ideologically. Chapter 2 probes how the Court’s 1971 term was a harbinger of future trends. For instance, just as case rulings in the areas of racial discrimination and Sixth Amendment right to counsel seemed to demonstrate a conservative tilt, so the lead-up to the 1972 FURMAN V. GEORGIA decision pertaining to capital punishment conveyed a continuation of progressive thinking.

Chapters 3 through 6 cover reapportionment and voting rights, obscenity, criminal procedure,
and school desegregation, respectively. The Court as led by Chief Justice Earl Warren significantly impacted the approach to legislative apportionment. In the 1972-73 term, several
rulings connoted a move away from an expansive interpretation of rights in this area. On the subject of obscenity, Chief Justice Burger himself wrote the majority opinion in the 1973 MILLER V. CALIFORNIA case, which permitted greater state discretion in imposing regulations. Maltz finds that criminal procedure cases, while continuing to take up a large portion of the Court’s caseload, did not bring any major breakthrough during the 1972-73 term. As a consequence of the 1971 ruling in SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, judges gained wider authority to impose changes in order to eradicate segregation. Bussing was debated at both the national and state level and became an issue in the 1972 presidential campaign.

Chapters 7 through 10 deal with equal protection and wealth discrimination, sex discrimination, aid to parochial schools, and abortion, respectively. While the Burger Court continued to augment certain constitutional protections for the poor, the 1973 ruling in UNITED STATES V. KRAS rejected equal protection and due process challenges based on wealth. Maltz proffers that the “pattern evinced by the welfare cases typified the treatment of the rational basis test by the Court generally during the Burger era” (p. 135). The Court’s gender discrimination cases occurred during the fight for the Equal Rights Amendment. The 1973 decision in FRONTIERO V. RICHARDSON, while determining that preference for men violated constitutional precepts, lacked the unity and clarity of the ruling in REED V. REED two years earlier. Because the 1971 LEMON V. KURTZMAN ruling by the Court denied aid to parochial schools, it was considered a defeat for school choice advocates. But the test established to determine constitutional violation enunciated in the Lemon ruling, excessive government [*74] entanglement, became critical in pro-aid rulings in 1972 and 1973. In Chapter 10, the author traces the history of abortion and state legislative actions taken to limit the procedure; furnishes an inside look at how the 1973 ROE V. WADE ruling was composed; and assesses the impact of the Court’s ROE V. WADE holding on national and state-level politics.

Maltz uses the concluding chapter to evaluate the overall direction of the Court at the apex of Richard Nixon’s presidency. Rather than viewing the 1972-73 term as a study in inconsistency, Maltz discovers that “while the basic commitment to judicial activism survived the appointment of the Nixon justices, the orientation of that activism changed significantly” (p. 191). One consequence of a diminution of decisions upholding progressive issues was a return of authority to the states. For Maltz, the “most important jurisprudential development” (p. 193) discernible at the end the 1972-73 term was the Court’s resistance to structural overhauls.

Two recent books probe the Supreme Court during the Richard Nixon administration, though do so over a longer time frame than the current study. In his 2011 book, Kevin McMahon argues that President Nixon adopted a political and legal strategy to alter the direction of the Supreme Court and was more successful than he is given credit for in reversing the judicial liberalism which he inherited. Similar to McMahon, authors Michael Graetz and Linda Greenhouse
contend in their 2016 study that the Burger Court was more stridently conservative than normally regarded, largely due to Nixon’s influence. Conversely, studies by Erika Wittekind in 2012 and Rebecca Stefoff in 2008 outline the limits of presidential power in determining court outcomes by focusing on the 1974 U.S. V. NIXON case.

Organizationally, the alignment of chapters in the Maltz book could have been improved with a common focus among parts. Two chapters, on criminal procedure (5) and the conclusion (11), are inordinately short compared to others. One reason for the brevity of Chapter 5 is the decision to exclude capital punishment there. By ending the book with the 1972-73 term, Maltz does not consider the impact of the 1972 presidential election or the events of 1974 in evaluating Richard Nixon’s impact on the Supreme Court.

The short-term approach to analyzing the Court’s rulings does bear out Maltz’s main premise: Overall, President Nixon’s court appointees were not overwhelmingly conservative, so it makes sense that any change in the Court’s ideological orientation would occur gradually, not overnight. That is in fact what happened, and yet Maltz’s victory-of-the-centrists theme for explaining the 1972-73 term also has durational utility, since most agree that the succeeding two chief-justice-led Courts have been more conservative than the Burger Court was at any point between its inception and end.

Though several presidents prior to Richard Nixon had the opportunity to nominate more Supreme Court justices during their time in office, only Ronald Reagan has equaled Nixon’s number of Court appointees since. Yet, even Reagan learned that a president’s impact on courts is limited by the abbreviated tenure of the latter, by political conditions, and by the interaction of the justices themselves, such that it is not reliable or advisable for Maltz or any other scholar to name Supreme Court eras after chief executives. Alternately, Maltz’s focus on a single court term could be easily applied to any president regardless of the number of successful nominees, or utilized to compare between presidents and case topics.


REFERENCES

Graetz, Michael, and Linda Greenhouse. 2016. THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT. New York: Simon and Schuster.

McMahan, Kevin. 2011. NIXON’S COURT: HIS CHALLENGE TO JUDICIAL LIBERALISM AND ITS POLITICAL CONSEQUENCES. Chicago: University of Chicago Press.

Stefoff, Rebecca. 2008. U.S. V. NIXON: THE LIMITS OF PRESIDENTIAL PRIVILEGE. New York, NY: Cavendish Square Publishing.

Wittekind, Erika. 2012. THE UNITED STATES V. NIXON: THE WATERGATE SCANDAL AND THE LIMITS TO US PRESIDENTIAL POWER. North Mankato, MN: Abodo Publishing.

CASE REFERENCES: [*75]

FRONTIERO V. RICHARDSON, 411 U.S. 677, 1973.

FURMAN V. GEORGIA, 408 U.S. 238, 1972.

LEMON V. KURTZMAN, 403 U.S. 602, 1971.

MILLER V. CALIFORNIA, 413 U.S. 15, 1973.

REED V. REED, 404 U.S. 71, 1971.

ROE V. WADE, 410 U.S. 113, 1973.

SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1, 1971.

U.S. V. KRAS, 409 U.S. 434, 1973.

U.S. V. NIXON, 418 U.S. 683, 1974.

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© Copyright 2017 by author, Samuel B. Hoff.