When Richard Nixon was running for President he promised that he would appoint to the Supreme Court men who represented his own legal philosophy, that is, who were what he called “strict constructionists.” The nominations he subsequently made and talked about, however, did not all illuminate that legal philosophy; jurisprudence played little part in the nation’s evaluation of Haynesworth and Carswell, let alone those almost nominated, Hershell Friday and Mildred Lilly. But the President presented his recent choices, Lewis Powell and William Rehnquist, as examples of his theory of law, and took the occasion to expand on that theory for a national television audience. These men, he said, will enforce the law as it is, and not “twist or bend” it to suit their own personal convictions, as Nixon has accused the Warren Court of doing.
Now the President has expressed his legal philosophy in a different way: he has asked Congress in effect to overrule the Supreme Court’s interpretation of what the Constitution requires. The segregation cases, which began with the Brown case in 1954 and have been continued through the Swann v. Charlotte-Mecklenburg Board of Education case of last year, together come to this: the Court has held that de jure school segregation is so fundamental a violation of the Constitution’s guarantee of equal protection of the laws that states that imposed this segregation must now take whatever steps are necessary to repair its effects—even if this means busing. Nixon now wants Congress to take the power to order busing away from the courts. His recent bill would, in effect, overrule Swann, which held unconstitutional a North Carolina statute that itself tried to take that power from the courts.
I believe the statute Nixon wants would be unconstitutional as well. But I want here to consider a different issue. Nixon would claim that his opposition to the segregation decisions is not based simply on a personal or political dislike of the results they reached. He would argue that the decisions violated the legal philosophy he claims to have followed in his appointments. But it is not easy to state what that philosophy is, or why the segregation decisions offended it.
He cannot object to these decisions simply because they went beyond prior law, or say that the Supreme Court must never change its mind. Indeed the Nixon Court itself seems intent on limiting the liberal decisions of the Warren Court, like Miranda. The Constitution’s guarantee of “equal protection of the laws,” it is true, does not in plain words determine that “separate but equal” school facilities are unconstitutional, or that segregation was so unjust that heroic measures are required to undo its effects. But neither does it provide that as a matter of constitutional law the Court would be wrong to reach these conclusions. It leaves these issues to the Court’s judgment, and the Court would have made law just as much if it had, for example, refused to hold the North Carolina statute unconstitutional. It…
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