The Nixon Presidential Library's latest release of tapes earlier this week includes an extraordinary snippet of a phone conversation between President Richard Nixon and Chief Justice Warren Burger that took place in late 1972. The chat touched on the then-pending obscenity case Miller v. California, the simmering issue of school busing, and the health and caliber of other justices.
It begins with Nixon asking Burger casually about Miller, something that is frowned on, to say the least, when a case is still pending. Burger replies, "I don't know how we're coming down. I'm coming out hard on it," which Burger ultimately did, as author of the decision, released the following June. Nixon laughed and said, "I'm a square." He went on to say that he had read the obscenity cases in connection with "Time v. Hill," a reference to Time Inc. v. Hill, a First Amendment case he'd argued before the Supreme Court as a private lawyer in 1966.
"Let's face it, its a question of balance. ... They go overboard," Nixon said, then groping for the legal standard used by the courts in assessing obscenity claims. "Redeeming social purpose," Burger replied helpfully, though not entirely accurately -- "redeeming social importance" is the phrase from Roth v. United States. "Good God!" exclaimed Nixon, and Burger chimed in, "One of the biggest frauds ..." Said Nixon, "That was a Brennan opinion, wasn't it?" It was.
Burger said the legal standard means that "if they have one of these outrageous orgies, if they mention Vietnam or the condition of the ghettoes,that redeems the whole thing." Nixon chuckled, "Oh boy, isn't that something."
Nixon then asked Burger if the Court was expecting to rule on school busing anytime soon. "No, that's way down the road," Burger said, to which Nixon replied, "That's good. The longer the better." Burger agreed, and Nixon said he hoped to get some legislation passed to eliminate the problem.
A general discussion of the Court ensued, with Burger expressing impatience, apparently over the Court's slow shift toward conservatism. "By the way," Burger added, "this young fellow [William] Rehnquist is a real star." Nixon, who had appointed Rehnquist to the Court a year earlier, appreciated the comment and then, paraphrasing Gen. Douglas MacArthur's adage about old soldiers, Nixon said, "Supreme Court justices never die, and they never fade away." That was good for a hearty laugh from Burger, who said it would be good to "get some young fellows up here." Nixon countered that even though they were not young, "my guys are great -- the Burger Blackmun Powell triumvirate." (Actually, if conservatism was Nixon's measure of greatness, of course, then all three justices ended up falling short to greater or lesser degrees.)