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

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

treatment of the separation of powers and executive privilege concepts. While claiming to act as "judicial interpretivists" in the case, the opinion, as well as the debates, is strikingly barren of any careful examination of the intent of the framers regarding these concepts.


NOTES
1.
Memo to the Conference (MTTC), WOD P, Box 1659, Library of Congress, Washington, D.C.
2.
Ibid.
3.
Docket Book, 1973 Term, Conference Notes, July 9, 1974, Brennan Papers, Boxes 329 and 423, LC. See also Douglas Papers, Box 1627 (Docket Book, 1937 Term), LC, Washington, D.C.
6.
Cooper v. Aaron 358 U.S. 1 ( 1958) was a school segregation case that pitted state authority ( Arkansas) versus the authority of the national government in the form of federal court orders that had been disobeyed by state officials. It was a critical moment in America's political, social and legal history and the justices, in their unanimous opinion reaffirming the supremacy of the national government, had each of their names affixed to the opinion (as co-authors). See Howard Ball and Philip Cooper, Of Power and Right ( New York: Oxford University Press, 1991), chapter eight, for a detailed account of this period of history.
7.
Justice Brennan, quoted in Jeffrey T. Leeds, "A Life on the Court", New York Times Sunday Magazine, October 1986, p. 75.
8.
Bernard Schwartz, ed., Unpublished Opinions of the Burger Court ( New York: Oxford University Press, 1988), p. 276, quoting an unidentified justice who participated in the Nixon deliberations.
9.
Warren quoted in Ibid., p. 152.
10.
Earl Warren, "Richard M. Nixon", Esquire Magazine, April 1975.
11.
Note, Brennan papers, Box 329, LC, Washington, D.C.
12.
MTTC, July 10, 1974, Brennan Papers, Box 329, LC.
13.
Lacovara (Special Prosecutor) oral argument before U.S. Supreme Court, in Westin and Friedman, Nixon, p. 594.
14.
MTTC, July 11, 1974, Douglas Papers, Box 1659, LC, Washington, D.C.
15.
MTTC, July 15, 1974, Douglas Papers, Box 1659, LC, Washington, D.C.

-137-

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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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