In his recent book, Nixon’s White House Wars, Patrick J. Buchanan writes about how most of Richard Nixon’s Supreme Court nominees—Buchanan was an aide to Nixon—did not turn out to be the “judicial restraintists” that the thirty-seventh president had hoped for. Buchanan says that has been a problem for Republican presidents generally. From Nixon up until Trump, they have appointed twelve justices and the Democrats have appointed only four (Justice Neil Gorsuch makes thirteen). Still, there has been no constitutional counter-revolution away from the path of cultural decay that he says began with the Warren Court (1953-1969). He tells us that the Warren Court “was regarded by many as an ally of the counterculture that had arisen in the 1960s” and refers to its “campaign to de-Christianize America,” which included barring prayer and Bible reading from public schools and sweeping away legal restraints on obscenity and pornography.
The culture wars just advanced much further under later Courts (the Burger, Rehnquist, and Roberts Courts) even though they had a preponderance of Republican-appointed justices, with the Court enshrining abortion rights, a right to sodomy, and an equal protection right to same-sex “marriage” into the Constitution. He notes that the Republican presidents failed to change the Court for different reasons, such as insufficient vetting of their appointees, key people in their administrations not wanting restraintist nominees, and justices who simply didn’t want to overturn precedents (even bad ones). What’s evident from what Buchanan writes is that the only way most presidents think they can change the Court’s direction, by appointment, is quite unreliable.
The Supreme Court, to be sure, has overturned or at least narrowed previous decisions. Few of the overturned decisions have had broad, culture-wide significance. Probably the most noteworthy example of that was racial segregation, when in its 1954 Brown v. Board of Education of Topeka decision it overturned Plessy v. Ferguson (1896), which had given a constitutional imprimatur to “separate but equal.” The largest single group of overturned decisions on constitutional questions have concerned Bill of Rights provisions pertinent to criminal justice. Generally, these have gone in the direction of granting more rights to those accused of crimes. A number of these overturned decisions were done by the Warren Court and probably ignited most of the opposition to it.
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On the cultural side, the Court under Chief Justice Warren Burger seemed to backtrack on the Warren Court’s controversial First Amendment protection of obscenity and pornography that Buchanan alluded to when in Miller v. California (1973) it gave state and local governments more freedom to carry out prosecutions. While the Court never gave constitutional protection to pornography per se, the legal definition it gave to it beginning in its 1957 Roth v. U.S. decision had made it extremely difficult to prosecute or legally restrain. Roth itself was a sharp departure from long-standing legal principles in American law that had refused to countenance the obscene, pornographic, or salacious in the least. In fact, until the 1950s the ruling standard in the U.S. had been that expression could be suppressed if it could adversely affect the most vulnerable persons in the public (typically youth). Miller didn’t exactly overturn Roth, but “tightened” the legal definition. The problem was that the damage had already been done, so that today we see few pornography prosecutions other than for child pornography. One might say that the Warren Court’s decisions both aided the cause of the 1960’s Sexual Revolution and helped engrain pornography into the fabric of American life. During World War II, in Skinner v. Oklahoma, the Court stepped back on its 1920s-era Buck v. Bell decision, which had upheld forced sterilization of the feeble-minded. Maybe the Nazi experience registered with the Court, even though it was not precisely an overturn and didn’t signal exactly a turn away from its earlier embrace of eugenics.
Actually, the Court’s overturned decisions or narrowing of decisions on culture war-type questions in recent years have mostly been to further the repudiation of traditional culture. Lawrence v. Texas (2003) overturned Bowers v. Hardwick (1986) to suddenly discover a constitutional right to sodomy. Obergefell v. Hodges (2015) overturned the 1972 decision of Baker v. Nelson to hold that same-sex “marriage” was an equal protection right under the Constitution. While in Planned Parenthood v. Casey (1992), the Court upheld such requirements as qualified parental consent for minors’ abortions, informed consent, and a one-day waiting period for abortions—in some sense permitting limits on abortion at the margins—it reaffirmed its 1973 Roe v. Wade and Doe v. Bolton precedents that legalized abortion, for all practical purposes, up to birth. It also erected the notion of the autonomous self—man as the essential arbiter of morality and all meaning—into a constitutional principle in the famous “mystery passage” in its opinion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
A series of Court decisions, starting with Everson v. Board of Education in 1947, had the effect of largely driving religion out of the public arena, especially in the realm of public education. For all practical purposes, the effect of these decisions has been to install secularism as the official religion in America. That, of course, reversed the traditional respect for religion—especially Christianity—that had been a given in American law before that time. While over the years the Court has narrowed its Everson-era precedents that established a “rigid wall of separation between church and state,” this has been very much at the margins. For example, it has permitted very limited state support for sectarian schools and such things as prayers commencing state legislative sessions.
Other twentieth-century examples of overturned decisions or a narrowing of precedents on First Amendment freedoms were seen in the Jehovah’s Witness flag salute cases and the Communist Party membership cases. In 1943, the Court made one of its quickest reversals in history in West Virginia Board of Education v. Barnette. It did this after its decision three years before in Minersville School District v. Gobitis that held that Jehovah’s Witness children could not refuse to salute the flag in public school classrooms—the Witnesses believed that doing this showed allegiance to the state as a salvific force instead of God—led to a wave of persecutions against the sect. Barnette protected the Witness children’s religious liberty rights not to salute the flag. In Dennis v. U.S. (1951), the Court made it easier to prosecute Communist Party membership under the Smith Act. Then, in Yates v. U.S. (1957)—again, the Warren Court was now in place—it required a heightened standard of evidence to sustain such a prosecution so that just membership in the party couldn’t be prosecuted. Providing more associational freedom protection for Communists was maybe legally defensible, but hardly promoted the cause of traditional culture.
Earlier in the twentieth century, at the time of FDR’s New Deal, the Court made some noteworthy reversals of its precedents on the subjects of the commerce clause, national taxing and spending power, and federalism that had the effects of altering the distribution of power between the federal and state governments and opening the door to economic regulation.
When one looks back at these noted cases of the Supreme Court’s overturning of its precedents, he observes a couple of things. First, when the Court has changed it has usually followed a change in the predominant elite opinion in America. So, the Court’s church-state jurisprudence changed with Everson after the secularization of the intelligentsia and the opinion-making class in America early in the twentieth century. It only slightly modified its course later on when it became apparent that the results were contradictory and unworkable. (When the late eminent Catholic constitutional lawyer William Bentley Ball argued one of the later cases before the Court, one Justice jokingly but truthfully asked him if he was seeking to reconcile the Court’s church-state decisions.) The Court for all practical purposes protected obscenity and pornography when the elite insisted there should be no restraints on speech and also decided that there was nothing wrong with pornography. Rights to abortion, sodomy, and same-sex “marriage” came only after elite opinion shifted to support them and the Sexual Revolution that the elite spearheaded ground itself into American culture.
The Court retreated on eugenics only after elite support for it weakened—for a time—with the Nazi atrocities. Brown and its progeny came only after an elite that earlier in American history didn’t pay much attention to it began to oppose racial segregation and took up the cause of civil rights. The Court altered its thinking about the Smith Act only because elite opinion—which from the Progressive Era onward has tilted leftward—started to have an expansive notion of civil liberties that included protecting Communists. While the excesses of the McCarthy period may have helped precipitate that, American liberalism has long had the view that there are no enemies to the left—as New Dealer Ronald Reagan found out in the late 1940s when he started to speak against not just fascism but also communism in Hollywood. Then, of course, even though FDR’s “Court-packing” plan was the trigger, elite opinion had shifted from supporting some version of economic laissez-faire to strong state economic regulation in the interest of justice.
The upshot of this is that unless Republican presidents are ultra-conscientious in examining the thinking of their Court nominees, they are likely to just continue the kind of jurisprudence that Buchanan says Nixon failed to change. That means not only avoiding appointing closet judicial leftists, but also selecting justices who have the strength of character and intellectual depth to resist the influences of the mainstream of the legal profession and legal academy and their judicial leftist brethren.
Still, there’s another problem: the simple reluctance of Supreme Court justices historically to overturn precedents—even bad ones. That means that a Republican president would have to know his prospective appointees inside and out and be sure of their willingness to step out of the usual judicial mold, in addition to being sure of the soundness of their philosophical and constitutional commitments. That’s no small order, even for a president whose own thought is completely sound (which often isn’t the case with Republican presidents).
Nor can presidents expect Congress to check the Court by doing something like withdrawing its jurisdiction over certain matters. That has seldom happened historically, and in our era Congress is usually ideologically stalemated and has become the weakest—indeed, it seems hapless—branch of the federal government.
In the final analysis, what this means is that a president deeply committed to changing the course of the culture wars—which the Court has played a big part in—and restoring the Constitution can’t just play the appointment game. He has to be prepared to challenge the Court head-on as FDR, and even more so, Andrew Jackson did (in the Cherokee Indian case, Jackson simply refused to carry out the Court’s decision). Such a president must be prepared to obstruct and resist blatantly unconstitutional decisions—many of the decisions that have advanced the cultural revolution in America have had little or no constitutional foundation—of the Supreme Court and other federal courts when the Supreme Court lets them stand. In other words, it is long past the time for a forceful—but prudent—stance of presidential resistance to the judiciary.