Eric Posner Reviews McMahon's "Nixon's Court"

Casual with the Court

Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences
by Kevin J. McMahon

University of Chicago Press, 360 pp., $33.95

POLLS SHOW THAT Americans admire the U.S. Supreme Court more than any other major government institution. Yet Americans know little about the individual justices, and those who can identify the justices rarely give them good marks for performance. The commentariat can never make up its mind whether the Court stands above politics and serves as an invaluable check on the excesses of democracy, or advances the ideological agendas of the particular justices who form majorities. Usually it vindicates rights when we like the results and imposes ideological outcomes when we do not.

Political scientists take a more Olympian view. For them, justices are wind-up toys set in motion by the president who selects them: they totter down a path determined by the president’s political agenda. If you do not like Justice Scalia’s opinions, then you should blame President Reagan, who appointed him, not Justice Scalia. Kevin McMahon, a political scientist, takes this approach in his book on Nixon’s appointments: Warren Burger, William Rehnquist, Harry Blackmun, and Lewis Powell.

McMahon’s starting point is a puzzle. When Nixon ran for president, he attacked the Supreme Court for its liberal excesses. Under the leadership of Chief Justice Earl Warren, the Court had expanded the rights of criminal defendants, and had launched a revolution in civil rights by desegregating schools and other institutions. Nixon blamed the first set of opinions for the collapse of law and order in the 1960s, and argued that the second set of opinions took civil rights too far. Yet although Nixon appointed four justices, including the new chief justice, his appointments did not mount a serious challenge to the Warren Court. Why not?

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