Mondays with the Supremes: Part IV: Tapes and Tapes

A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

A piece of [expletive deleted] and his [expletive deleted] excuse for his actions.

United States v. Nixon, 418 U.S. 683 (1974)

Holding: The Supreme Court does have the final voice in determining constitutional questions; no person, not even the president of the United States, is completely above the law; and the president cannot use executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial.”

Majority: Burger, joined by Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell

(Rehnquist took no part in the consideration or decision of the case.)

The Burger Court had many landmark cases, including United States v. Nixon in 1974.  Since 1972, the United States had been embroiled in a series of interlocking scandals and investigations given the name “Watergate.”  What began as “a third-rate burglary” ended in the resignation of the President.  During this time, the country witnessed two separate proceedings.  Judge John Joseph Sirica of the United States District Court for the District of Columbia presided over the trial of the burglars.  On the Hill, the Senate Watergate Committee, with Senator Sam J. Ervin (D-North Carolina) as Committee Chairman, investigated the Watergate burglaries and allegations that the Nixon White House orchestrated wiretapping and other nefarious activities.  Every day the Silent Majority watched their TVs and saw how the President elected on the “Law and Order” platform became a monstrous embodiment of criminality, illegality, and paranoia.

The two trials forced the Supreme Court out of its regular rhythms.  Instead of taking its usual July recess, it decided it had to act.  As the scandal transformed from the burglary to the cover-up, the Supreme Court needed to figure out how preserve its powers.  The White House held the position that it could withhold evidence from Judge Sirica because of “executive privilege,” especially in terms of materials relating to “national security.”

The stakes were high, since the White House lost the previous battle with the Burger Court over the Pentagon Papers.  The battle represented the first direct threat to the power of the Supreme Court since Marbury v. Madison.  (The unanimous opinion is still controversial, widely derided by those enamored by Executive supremacy.)

Like Brown v. Board, the Court decided upon a united front with a unanimous decision.  Only Justice Rehnquist, a Nixon appointee, recused himself from the case since he worked for the Nixon Justice Department.  What the other justices realized, beyond the usual partisan squabbling, was that the entire judicial branch was under attack.  Would the Supreme Court be subservient to the White House because of “executive privilege”?

The Brethren relates the story of Watergate from the perspective of the Supreme Court.  The reader discovers that even this high profile, high-stakes case involved negotiations amongst the justices and the inevitable horse-trading.  Nevertheless, the book reads like a mirror of All the President’s Men, another book co-authored by Bob Woodward.  (One can also read Years of Upheaval, Kissinger’s second volume of his memoirs, for the foreign policy perspective and the view from inside the White House.)

In the end, the Court ruled unanimously against “executive privilege” in the White House’s claims to refuse to turn over the tapes to Judge Sirica.  Despite the allegations that the tapes would reveal foreign policy information that would weaken national security, the President can not willfully obstruct a criminal trial by withholding evidence.  In the end, the cover-up compounded Nixon’s guilt.

Two lessons can be learned from the Supreme Court’s actions during Watergate: first, that the Supreme Court is the last line of defense against a power-hungry White House; second, Nixon realized that even though he appointed two Justices, they were loyal to the United States and its laws, not him.

Have we learned those lessons?  What do you think?

Up next: Supreme Court Swingers


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