Members of the U.S. Supreme Court as seen on April 20, 1972.
By Evan Vassar
The Warren Court, throughout its judicial history, ruled on a myriad of cases that would leave Richard Nixon concerned with the Court’s use and expansion of judicial power. Among the justices on the Supreme Court was Abe Fortas, a close friend of President Lyndon B. Johnson, who would unfortunately, for him, resign his seat on the bench due to multiple reports of his financial ties with businessmen who may have had interests in particular court cases. On May 15, 1969, Fortas would send in his letter of resignation to President Nixon. However, nine days earlier, assistant to the president Patrick J. Buchanan would write a memorandum to the president describing the political situation and opportunity the president was being presented with in the wake of Earl Warren and Abe Fortas’ resignation.
View the memorandum below:
The memorandum highlights the declining reputation and respect for the court, and proposes a possible solution to the problem of the dissolving approval of the court. Buchanan notes in the memorandum that “for the last five years the Court has been under the most intensive fire since very probably the days of Dred Scott…” and “the prestige of the Courts has very probably rarely been lower in our history.” These two quotes are a testimony to the poor image the Court had painted for itself in the previous years, and would give President Nixon the chance to capitalize on the recent resignations by appointing Justices who would reignite the constitutional life in the court.
Buchanan would offer some of his advice to the president in regards to his appointments. Considering Abe Fortas and his recent scandal, and his close ties to President Johnson, Buchanan suggested that Nixon appoint a judge he had “never met”. He is quoted saying in the memorandum, “Because of the suspicion and skepticism toward the Court today, because of its recent decisions, it seems to me important – for the Court – that the President name a ‘constitutionalist’ as Chief Justice.” Buchanan felt that the Court and its integrity needed to be “re-established”, and appointing a “constitutionalist” would be the first step.
The memorandum is a remarkable representation of the early years of Nixon’s administration and the state of affairs concerning the Supreme Court and its apparent lack of respect among the people and the new administration. It is also a prelude to the nominations to the Court yet to come; Nixon would go on to nominate four “constitutionalists” throughout his first term as president.