Court Appointments

Richard Nixon was elected president in part on his pledge to appoint law-and-order justices to the Supreme Court who would halt the judicial activism of the Warren era. Chief Justice Warren E. Burger and his other appointees were moderately conservative, but, with the exception of Justice Rehnquist, flexible and pragmatic on most public issues. Although they chipped away at some of the rulings of the Warren Court, its key decisions were not overturned. Despite the polarizing politics of the 1970s, the Burger Court in retrospect turned out to be a remarkably stable and principled institution.

Vietnam and the War Powers

Since 1801, when President Jefferson committed naval forces to the Barbary War, the president has been able to wage de facto war as commander-in-chief without a formal declaration of war by Congress. During the early 1960s, President Kennedy sent American troops to South Vietnam to serve as military advisers against Communist insurgents. And when North Vietnam attacked American naval vessels in the Gulf of Tonkin, President Johnson secured a resolution from Congress authorizing him to repel attacks against the armed forces of the United States. Johnson treated the resolution as a de facto declaration of war and committed over half a million troops to the Vietnam conflict. Constitutional challenges to American involvement were brought before the Supreme Court, but the Court declined to consider the issue on the ground that it raised political questions beyond the jurisdiction of the Court.

Restriction of Symbolic Speech

The Military Selective Service Act of 1967, which subjected men between the ages of nineteen and thirty-five to conscription, encountered widespread opposition. Thousands of young men publicly burned their draft cards to demonstrate symbolically their opposition to American involvement in the Vietnam conflict. Since destroying draft cards was a federal offense, the Court had to decide whether symbolic speech under the First Amendment trumped the authority of Congress to enforce conscription. In United States v. O’Brien (1968) the Court ruled that the burning of draft cards is not a form of protected symbolic speech, because the government has a substantial interest in maintaining an orderly and efficient draft.

War Powers Act

When the Vietnam conflict ended in 1973, Congress passed the War Powers Act in an attempt to prevent future de facto wars. The act limits the circumstances under which the president can commit the armed forces to combat, and places time limits on overseas military interventions absent congressional authorization. From a practical standpoint, the War Powers Act is unenforceable, because it would be politically impossible for Congress to withhold support once American forces are committed to combat. Nor would the Court be likely to rule on the constitutionality of a statute that clearly involves a political question.                                                

The Pentagon Papers           

One of the nation’s most important press freedom cases arose from the public disclosure of materials that had been classified as top secret by the Pentagon. The materials, commonly referred to as the Pentagon Papers, were part of a study commissioned by Secretary of Defense Robert McNamara on the history of United States policy in Indochina. A researcher who had worked on the study leaked some of the materials to the press. When the Justice Department secured a temporary injunction against the New York Times barring publication of the material, the Supreme Court ruled against the government on the ground that it had failed to meet the burden of proof needed to justify restraint on publication.

Watergate and Executive Privilege

In the wake of a break-in at the National Democratic Committee’s headquarters during the 1972 election, the Senate undertook an investigation into potential White House involvement. A Select Committee was appointed to oversee the investigation, as well as a special prosecutor to deal with prosecutions resulting from the investigation. The investigation produced a political standoff when President Nixon refused to turn over audio tapes of conversations in the Oval Office. Nixon claimed that the tapes were protected by executive privilege and that the separation of powers doctrine barred any branch of government from dictating to another branch. The case finally reached Supreme Court, which recognized for the first time that a qualified executive privilege does indeed exist. However, the privilege could not be invoked to frustrate criminal proceedings already under way in the courts. The Court did not rule on whether the privilege could be exercised to frustrate congressional investigations. In any case, the president, already facing impeachment for obstructing the investigation, turned over the tapes to the special prosecutor, and the contents forced his resignation.