GOD SAVE THIS HONORABLE COURT: The Supreme Court Crisis by Louis M. Kohlmeier


Email this review


God, or someone well-placed, has done a fairly decent job thus far. For instance the High Court managed to survive Dred Scott, a horrendous blunder which precipitated, in the words of Court scholar Robert McCloskey, a ""judicial ice age"" which continued well beyond the Civil War. The latest crisis, as Kohlmeier tells it, is also ascribed to the politics of race -- this time Mr. Nixon's Southern Strategy. In an effort to blunt or reverse the liberal trend, so pronounced during the long Warren era, Nixon has attempted to strip the Court of ""its constitutional independence, its continuity, and its essential conscience,"" and he is succeeding handsomely. Burger, who is pictured as a presidential toady, is leading the retreat to strict constructionism (or ""law-and-order""); of course such stalwart troops as Haynsworth, Carswell, Poff, and Mildred Lillie were battle casualties, gunned down by the Senate or the Bar Association, but largely the President is having his way -- no one surely can accuse Blackmun, Powell, or Rehnquist of harboring progressive notions. Very much a Warren champion, Kohlmeier traces the origins of the present difficulty back to Ole Lyndon, whose desire to pack the Court with cronies led to his maneuvering Goldberg off the bench in favor of Abe Fortas, whose Chief Justice nomination in turn came undone by virtue of his buddy-buddy relationship with Johnson, which also sunk the Thornberry appointment. Thus Warren was forced to stay on, providing Nixon with his opening. This is a standard liberal interpretation, and within that purview Kohlmeier's book reads as well as any analysis you're likely to find in The New York Times. But what he ignores -- or does not want to confront -- is the compelling suspicion that the present ""crisis"" (or return to judicial passivity) is not so much the result of Richard Nixon's or Lyndon Johnson's machinations but is a deep-felt counterreactive response to the hyperactivism of the Warren Court itself -- that the Warren majority's willingness and eagerness to take on sensitive political questions is perhaps chiefly responsible for the present conservative swing. Had Kohlmeier faced up to this possibility and struggled with it resolutely, God Save This Honorable Court might have been a significant addition to recent Court literature.

Pub Date: Dec. 28th, 1972
Publisher: Scribners