The Constrained Court: Law, Politics, and the Decisions Justices Make

By Michael A. Bailey; Forrest Maltzman | Go to book overview

Chapter 2
THE MEASURE OF LAW
ESTIMATING PREFERENCES ACROSS INSTITUTIONS AND TIME

RICHARD NIXON CAMPAIGNED for president in 1968 on the platform of defending the “silent majority” against the perditions of an overly liberal Supreme Court. He promised to appoint justices who would “strengthen the peace forces as against the criminal forces in the land” and appreciate the tenets of “laws and order” (quoted in Abraham 1999, 9).

In short order, fate gave Nixon a chance to fundamentally remake the Court. Chief Justice Earl Warren stepped aside in June 1968 in an effort to ensure that President Johnson could name his successor (Ward 2003, 171). But Warren’s plan came undone when Justice Abe Fortas, Johnson’s nominee for Chief Justice, resigned from the bench after financial irregularities came to light. This gave Nixon two seats to fill. Two more retirements came in September 1971, giving Nixon a total of four appointments in his first term.

Did the Nixon appointees fundamentally remake the Court? Martin and Quinn’s widely cited measures of judicial ideology (Martin and Quinn 2002; Liptak 2010) provide one answer. Figure 2.1 presents the Martin and Quinn ideology scores of the Court median over time; higher values indicate a more conservative Court median. The scores indicate that the Court median was conservative during the 1950s, became quite liberal in the 1960s, and then became very conservative in the early 1970s after Nixon came to office. Indeed, by 1973 the Court median reached a conservative peak that it has seldom reached before or since. By this measure, Nixon and conservatives should have been ecstatic with the new Court.

Of course, the story is more complicated. Most summaries of the Burger Court view it as a brake on what the liberal Warren Court had done rather than a fundamental change (Lindquist and Cross 2009, 6; Posner 2008, 55). And, in some ways, the Burger Court and its four Nixon nominees not only protected the Warren Court legacy but extended it. In fact, in the early 1970s when the Martin and Quinn scores indicate that the Court was at the height of its postwar conservatism, the Court issued two of the most liberal decisions in its history: in Roe v. Wade (1973) the Court said that there is a constitutional right to abortion, and in Furman v. Georgia (1972) the Court imposed a nationwide moratorium on the death penalty.

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