Viewpoint: Richard's Legacy

Nixon's Court and criminal justice

Franklin Roosevelt left to America not only the legitimated gargantuan State, but also the New Deal Supreme Court, which for years continued to justify Uncle Sam's ways to men, approve government meddling, and meddle on its own. From FDR's day until very recently, the biting legal theorizing of Justices Black and Douglas, and the fuzzy liberalism of Chief Justice Warren, touched America deeply. Black, now dead, and Douglas, barely surviving, were the presiding geniuses of the decades-long "Roosevelt Court," which, like the "Roosevelt Revolution" (as conservatives call the detested New Deal), trudged on long after FDR's death.

In 1969 the Roosevelt Court (or the Warren Court, as its later incarnation is known) began to disintegrate, as President Nixon exercised his prerogative and experienced the rare privilege of transforming the Court through appointment of four Justices, who, with one Kennedy appointee—Justice White—comprise now a new, if narrow, majority.

A majority to what end? "Against the Law," says Leonard Levy in his new book of that name, subtitled The Nixon Court and Criminal Justice.

I sat at Professor Levy's feet, so to speak, and studied Constitutional Law under him in grad school. I bedeviled him, too—greeting the beleaguered man on more days than he probably likes to remember, with little aphorisms from his cordially detested reactionary Justices, the blessed Willis Van Devanter and James McReynolds.

With his other students I exulted for him when he was awarded the Pulitzer in history for his brilliant Origins of the Fifth Amendment in 1969.

From him I learned the invaluable Levy's Law: It all depends on whose ox is being gored. Meaning, simplified drastically: whatever their rationalizations, the Justices juggle the precedents and rule often according to their own values. No surprise, you say. Sure, but the American likes to think that his Constitution is somehow immutable, that the Supreme Court merely extracts from it the guideposts for judicial rulings forevermore.

Not quite so. Here Levy casts a cold, glaring eye at the "result-oriented adjudication" of the Nixon Court He finds it "fallen into the control of conservative activists"—a lovely oxymoron, considering the vaunted conservative philosophy of judicial restraint—"whose decisions cannot be explained by any form of strict construction." Levy finds the Nixon Justices "no damn good as judges"; "in them the judicial temperament—disinterestedness, balance, careful reasoning—flickers weakly."

Levy's is a damning book, scrupulously researched, and contrary to what conservative worshippers of the Nixon Court would like to believe, neither distorted nor written to eviscerate this Court by way of praising its predecessor. Levy has criticized the Warren Court in a 1972 book; he attacks "judicial crusaders" whatever their ideology.

Against the Law examines recent Court activity in regard to search and seizure, self-incrimination, the right to counsel, trial by jury, and the death penalty. Perhaps one day Levy will write on the Nixon Court rulings on abortion and pornography, the latter a subject he inflicted on me for the doctoral dissertation I ground out under his impossibly demanding direction.

But there's quite enough in Against the Law to accentuate his points, of which a major one is that this Court has gone about its "quiet business of creating its own regressive 'revolution' in the criminal law, striking a pose of doing no more than refusing to open new frontiers"; meanwhile, "it has systematically closed old frontiers and made daring incursions that cripple many rights of the criminally accused." Levy presents nearly 500 pages with which to argue, and from which to derive a closely reasoned, if arguable, case against the Nixon Court.

Well done, Leonard, and huzzahs to Harper and Row for publishing it now, just when America, short in memory, is putting Richard Nixon behind us, oblivious to the fact that Nixonism lives on through his Court. Quoth the former President: "The decisions of the Court will affect your lives and the lives of your children for generations to come.…"

David Brudnoy teaches at Harvard University's Institute of Politics. Dr. Brudnoy's Viewpoint appears in this column every third month, alternating with the views of Murray Rothbard and Tibor Machan.