The Supreme Court and the New Politics of Judicial Power
Most observers of American politics expected the results of the 1968 presidential election to have major implications for the future of American constitutional law. In the year prior to the election, Chief Justice Earl Warren had announced his retirement and President Lyndon Johnson's efforts to promote his friend and confidant, Associate Justice Abe Fortas, to the post had failed. The successful presidential candidate was thus assured the opportunity to appoint a chief justice. Moreover, the advanced age of several other justices virtually guaranteed the new President additional appointments. Staffing the judiciary became an important political issue as Richard Nixon mounted a vigorous "law and order" campaign, in which he sought to link rising crime rates to the criminal process decisions of the Warren Court and promised to stem the tide of judicial activism by appointing only "strict constructionists" to the Supreme Court. Nixon's victory in 1968 thus appeared to set the stage for a judicial "counterrevolution," a determined effort by the executive branch to set aside the liberal jurisprudence of the Warren Court through the use of the appointment power. This effort gathered momentum as the nomination of a new chief justice was quickly followed by the resignation of Justice Fortas and the deaths of Justices Hugo L. Black and John M. Harlan. Within his first three years in office, Nixon was