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.
Memo to the Conference (MTTC), WOD P, Box 1659, Library of
Congress, Washington, D.C.
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.
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
Philip Cooper, Of Power and Right ( New York: Oxford University Press, 1991), chapter eight, for a detailed account of this period
Justice Brennan, quoted in Jeffrey T. Leeds, "A Life on the Court", New York Times Sunday Magazine, October 1986, p. 75.
Bernard Schwartz, ed., Unpublished Opinions of the Burger Court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.
Earl Warren, "Richard M. Nixon", Esquire Magazine, April 1975.
Note, Brennan papers, Box 329, LC, Washington, D.C.
MTTC, July 10, 1974, Brennan Papers, Box 329, LC.
Lacovara (Special Prosecutor) oral argument before U.S. Supreme Court, in Westin and
Friedman, Nixon, p. 594.
MTTC, July 11, 1974, Douglas Papers, Box 1659, LC, Washington, D.C.
MTTC, July 15, 1974, Douglas Papers, Box 1659, LC, Washington, D.C.
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: "We Have a Duty":The Supreme Court and the Watergate Tapes Litigation.
Contributors: Howard Ball - Author, Paul L. Murphy - Editor.
Publisher: Greenwood Press.
Place of publication: New York.
Publication year: 1990.
Page number: 137.
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