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

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

a ruling against the President but almost irresistibly pressing for it."33 It was manifestly clear, from the evidence in the justices' files, that the justices were aware of that reality and that they acted with dispatch to fulfill their "duty to end the Watergate crisis." 34

However credible or noble that action of the Court might have been at the time, the simple truth is that in their commitment to come to judgment quickly, a majority of the justices accepted the arguments of the Nixon attorneys that executive privilege was constitutionally based. It would have been enough for the Court to have ended the crisis; the justices did not have to create a broad constitutional executive privilege.

The precedent, however, has been established. While there was some discussion about executive privilege, there should have been a great deal more reflection and analysis by the judges before the creation of the constitutional privilege. (Between May 31 and July 24, 1974, many strongly held views were expressed--and modified--by the justices, except for the executive privilege principle.) The Court ended the 1974 presidential crisis of Watergate, but by employing interpretive judicial review to define the contours of Article II, it may well have set the stage for future constitutional crises.


NOTES
1.
Douglas rarely tried to persuade his colleagues on cases and controversies before the Court. On the issue of executive privilege, however, he was especially active, and his activity was clearly seen in letters written to Powell and Burger, the major Nixon supporters on the issue of executive privilege. In a July 11 letter to Powell, Douglas pleaded with his colleague, because the group was torn between the privilege being grounded in common law or in the Constitution, to "reserve making a decision on it as it is a question not necessary for us to reach on the facts of this case." In a July 12 letter to Burger, Douglas wrote: "I don't think it is necessary to reach the decision of whether [executive privilege] is based on the constitution. The office of the President as I read the Constitution is to executive the laws faithfully. A conspiracy to violate the laws or a conspiracy to protect people who have violated the law cannot be brought under Article 2 of the Constitution.... On the basis of the showing so far, conver

-150-

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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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