"We Have a Duty": The Supreme Court and the Watergate Tapes Litigation

By Howard Ball; Paul L. Murphy | Go to book overview

intra-branch dispute between Nixon and a subordinate ( Jaworski).

In late May Sirica ordered the president to turn the tapes over to him for an in camera inspection. Nixon appealed. On May 24, 1974 Jaworski took the dramatic step of bypassing the Court of Appeals and asking the Supreme Court to grant certiorari under expedited review as permitted in Rule 20 of the Supreme Court's Rules.

The Court could have declined the invitation extended to it by the special prosecutor. As a matter of discretion, if not of jurisdiction (which could have involved the separation of powers and the "political question" doctrines), the justices could have rejected the petition and allowed the Court of Appeals to hear the arguments. Given the issue's "delicacy" as well as the "pendency of impeachment proceedings," there could have emerged from the Court a "counsel of restraint, deliberate speed rather than majestic instancy." 29 Only five times in the nation's history had the Court granted expedited review under a Rule 20 protocol.

But the Court took Nixon, as will be seen, "because the case needed to be cracked--and soon--and it was not clear that it otherwise would be; and because the Court felt a responsibility to the nation to bring this about." 30 Justice Brennan, who led the successful effort in the Court to hear the case in an expedient fashion, clearly underlined the validity of this early observation when he wrote, in 1988, "[We] felt strongly that the nation would think we had 'let the people down' if we didn't bypass.... [We had to act] lest the nation lose all confidence in the criminal justice system." 31

And so it was that, about two years after the initial abortive effort by some plumbers to bug the Democratic National party headquarters in the Watergate complex, the members of the U.S. Supreme Court became involved in the case of United States v. Nixon.


NOTES
1.
Paul J. Mishkin, "Great Cases and Soft Law: A Comment on United States v. Nixon", UCLA Law Review 22, no. 6 ( 1974), at 78.

-34-

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"We Have a Duty": The Supreme Court and the Watergate Tapes Litigation
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Exhibits ix
  • Preface xi
  • 1 - The Supreme Court in the Political System 1
  • Notes 13
  • 2 - The Watergate Scandal Unfolds 21
  • Notes 34
  • 3 - The Supreme Court in 1974: Personae, Process, and Politics 39
  • Notes 57
  • 4 - The Critical Issues: Separation of Powers, Executive Privilege, and Judicial Review (revisited) 61
  • Notes 69
  • 5 - U.S. V. Nixon, I: The Duty to Hear the Case 73
  • Notes 91
  • 6 - U.S. V. Nixon, Ii: Written Briefs and Oral Arguments 95
  • Notes 106
  • 7 - U.S. V. Nixon, Iii: The Substantive Debate Among the Brethren 111
  • Notes 137
  • 8 - Executive Privilege: The Court's Fashioning of an Inherent Presidential Power 143
  • Notes 150
  • Selected Bibliography 153
  • Index 161
  • About the Author 165
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