LBJ and the Supreme Court

120px-LBJ-Ranch-1972We are being engulfed by a wave of Lyndon Johnson nostalgia.  Perhaps that’s because this is the 50th anniversary of the Civil Rights Act of 1964.  Perhaps it’s because of Robert Caro’s outstanding series of books on LBJ.  Or maybe it’s because people are frustrated with President Obama’s inability to influence Congress. At any rate, there is now even a Broadway play on the President starring the guy from “Breaking Bad.” LBJ is back in a big way.

Vietnam is the huge stain on Johnson’s record, but I want to talk about his unfortunate relationship with the Supreme Court. I say unfortunate in part because LBJ had no respect for separation of powers with respect to the Justices and set some important negative precedents:

1.  Johnson talked Chief Justice Warren into heading the Warren Commission.  This is the last time that a sitting Justice undertook a significant extra-judicial task.  Most people now agree that the Justices should not be doing this sort of thing at the behest of the White House.

2.  LBJ persuaded Arthur Goldberg to leave the Court to become UN Ambassador.  He did this to put Abe Fortas on the Court.  It is hard to imagine any future President convincing a Justice (especially a young and healthy one) to leave the Court, and most people would consider that lobbying totally inappropriate now.

3.  The President appointed Ramsey Clark Attorney General to get Tom Clark (his father) to resign from the Court.  Otherwise, Justice Clark would have had to recuse himself in many cases. He did that to create an opening for Thurgood Marshall.  That was a good appointment, but again the tactic was pretty dubious.

More important, Johnson made a colossal mistake by appointing Justice Fortas and then by trying to make him Chief Justice. Goldberg probably would have been a reliable liberal vote until the 1980s.  Fortas, on the other hand, had to resign in 1969 due to his ethical problems.  He was replaced by Justice Blackmun, who was not as liberal as Goldberg and (in my opinion) wrote terrible opinions.  Meanwhile, when Chief Justice Warren tried to retire in 1968, LBJ could have gotten a liberal replacement confirmed. Instead, he tapped Fortas, who could not be confirmed.  That ended up giving us Warren Burger, who was one of the worst Justices of the last fifty years.  A Supreme Court in the 1970s with Goldberg and some other liberal in place of Burger would have been a very different place.

The Master of the Senate was not the Master of the Supreme Court.

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3 Responses

  1. Fred Schafrick says:

    Ramsey Clark was Attorney General, not Solicitor General.

  2. Gerard Magliocca says:

    True–corrected now.

  3. Joe says:

    The moves that really didn’t work in the end involved Fortas.

    Fortas overall wasn’t really best suitable for the Court in the first place and continued to in effect be a Johnson crony/insider while trying to make up for the pay cut it took to go there in the first place. Fortas was a serious target of impeachment. Trying to make him Chief Justice especially when Johnson’s reputation and influence was plummeting after re-election was off the table was a particularly horrible move. It not only lost Johnson a chance to replace Warren (probably would have required someone less liberal than Fortas but more liberal than Burger) but in the end led to Fortas resigning himself.

    The other moves were a mixed bag (e.g., Robert Jackson served at Nuremberg so that looked better at the time) but overall did not really bite him in the ass. That did in the end.