It seems so naïve now, that moment in 2020 when Democratic insiders started to talk of Joe Biden as a transformational figure. But there were reasons to believe. To hold off a pandemic-induced collapse, the federal government had injected $2.2 trillion into the economy, much of it in New Deal-style relief. The summer’s protests altered the public’s perception of race’s role in the criminal justice system. And analyses were pointing to Republican losses large enough to clear the way for the biggest burst of progressive legislation since the 1960s.
Two years on, the truth is easier to see. We aren’t living in Franklin Roosevelt’s America or Lyndon Johnson’s or Donald Trump’s or even Joe Biden’s. We’re living in Richard Nixon’s.
Not the America of Nixon’s last years, though there are dim echoes of it in the Jan. 6 hearings, but the nation he built before Watergate brought him down, where progressive possibilities would be choked off by law and order’s toxic politics and a Supreme Court he’d helped to shape.
He already had his core message set in the early days of his 1968 campaign. In a February speech in New Hampshire, he said: “When a nation with the greatest tradition of the rule of law is torn apart by lawlessness, when a nation which has been the symbol of equality of opportunity is torn apart by racial strife … then I say it’s time for new leadership in the United States of America.”
There it is: the fusion of crime, race and fear that Nixon believed would carry him to the presidency.
Over the course of that year, he gave his pitch a populist twist by saying that he was running to defend all those hard-working, law-abiding Americans who occupied “the silent center.”
A month later, after a major Supreme Court ruling on school integration, he quietly told key supporters that if he was elected, he would nominate only justices who would oppose the court’s progressivism. And on the August night he accepted the Republican nomination, he gave it all a colorblind sheen. “To those who say that law and order is the code word for racism, there and here is a reply,” he said. “Our goal is justice for every American.”
In practice, it didn’t work that way. Within two years of his election, Nixon had passed two major crime bills laced with provisions targeting poor Black communities. One laid the groundwork for a racialized war on drugs. The other turned the criminal code of Washington, D.C., into a model for states to follow by authorizing the district’s judges to issue no-knock warrants, allowing them to detain suspects they deemed dangerous and requiring them to impose mandatory minimum sentences on those convicted of violent crimes.
And the nation’s police would have all the help they needed to restore law and order. Lyndon Johnson sent about $20 million in aid to police departments and prison systems in his last two years in office. Nixon sent $3 billion. Up went departments’ purchases of military-grade weapons, their use of heavily armed tactical patrols, the number of officers they put on the streets. And up went the nation’s prison population, by 16 percent, while the Black share of the newly incarcerated reached its highest level in 50 years.
Nixon’s new order reached into the Supreme Court, too, just as he said it would. His predecessors had made their first nominations to the court by the fluid standards presidents tended to apply to the process: Dwight Eisenhower wanted a moderate Republican who seemed like a statesman, John Kennedy someone with the vigor of a New Frontiersman, Johnson an old Washington hand who understood where his loyalties lay. For his first appointment, in May 1969, Nixon chose a little-known federal judge, Warren Burger, with an extensive record supporting prosecutorial and police power over the rights of the accused.
When a second seat opened a few months later, he followed the same pattern, twice nominating judges who had at one point either expressed opposition to the integration of the races or whose rulings were regarded as favoring segregation. Only when the Senate rejected both of them did Nixon fall back on Harry Blackmun, the sort of centrist Ike would have loved.
Two more justices stepped down in September 1971. Again Nixon picked nominees who he knew would be tough on crime and soft on civil rights — and by then, he had a more expansive agenda in mind. It included an aversion to government regulation of the private sector — and so one pick was the courtly corporate lawyer Lewis Powell, who had written an influential memo that year to the director of the US Chamber of Commerce advocating a robust corporate defense of the free enterprise system. Another item on Nixon’s agenda was to devolve federal power down to the states. William Rehnquist, an assistant attorney general committed to that view, was his other pick. The two foundational principles of an increasingly energized conservatism were set into the court by Nixon’s determination to select his nominees through a precisely defined litmus test previous presidents hadn’t imagined applying.
Our view of the Burger court may be skewed in part because Nixon’s test didn’t include abortion. By 1971, abortion politics had become furiously contested, but the divisions followed demography as well as political affiliation: In polling then (which wasn’t as representative as it is today), among white people, men were slightly more likely than women to support the right to choose, the non-Catholic college-educated more likely than those without college degrees, non-Catholics far more likely than Catholics, who anchored the opposition. So it wasn’t surprising that after oral arguments, three of the four white Protestant men Nixon had put on the court voted for Roe and that one of them wrote the majority opinion.
Justice Blackmun was still drafting the court’s decision in May 1972 when Nixon sent a letter to New York’s Catholic cardinal, offering his “admiration, sympathy and support” for the church stepping in as “defenders of the right to life of the unborn.” The Republican assemblywoman who had led New York’s decriminalization of abortion denounced his intervention as “a patent pitch for the Catholic vote.” That it was. In November, Nixon carried the Catholic vote, thanks to a move that gave the abortion wars a partisan alignment they hadn’t had before.
Nixon’s version of law and order has endured, through Ronald Reagan’s war on drugs, George H.W. Bush’s Crime Control Act of 1990 and Bill Clinton’s crime bill to broken windows, stop-and-frisk and the inexorable rise in mass incarceration. The ideological vetting of justices has increased in intensity and in precision.
Mr. Trump’s term entrenched a party beholden to the configurations of politics and power that Nixon shaped half a century ago. The possibility of progressive change that seemed to open in 2020 has now been shut down. The court’s supermajority handed down the first of what could be at least a decade of rulings eviscerating liberal precedents. Crime and gun violence now outstrip race as one of the electorate’s major concerns.
Mr. Trump, in a speech on Tuesday, made it clear that he would continue to hammer the theme as he considers a 2024 run: “If we don’t have safety, we don’t have freedom,” he said, adding that “America First must mean safety first” and “we need an all-out effort to defeat violent crime in America and strongly defeat it. And be tough. And be nasty and be mean if we have to.”
An order so firmly entrenched won’t easily be undone. It’s tempting to talk about expanding the court or imposing age limits. But court reform has no plausible path through the Senate. Even if it did, the results might not be progressive: Republicans are as likely as Democrats to pack a court once they control Congress, and age limits wouldn’t affect some of the most conservative justices for at least another 13 years. The truth is, the court will be remade as it always has been, a justice at a time.
The court will undoubtedly limit progressive policies, too, as it has already done on corporate regulation and gun control. But it’s also opened up the possibility of undoing some of the partisan alignments that Nixon put into place, on abortion most of all. Now that Roe is gone, the Democrats have the chance to reclaim that portion of anti-abortion voters who support the government interventions — like prenatal and early child care — that a post-Roe nation desperately needs and the Republican Party almost certainly won’t provide.
Nothing matters more, though, than shattering Nixon’s fusion of race, crime and fear. To do that, liberals must take up violent crime as a defining issue, something they have been reluctant to do, and then relentlessly rework it and try to break the power of its racial dynamic by telling the public an all-too-obvious truth: The United States is harassed by violent crime because it’s awash in guns, because it has no effective approach to treating mental illness and the epidemic of drug addiction, because it accepts an appalling degree of inequality and allows entire sections of the country to tumble into despair.
Making that case is a long-term undertaking, too, as is to be expected of a project trying to topple half a century of political thinking. But until Nixon’s version of law and order is purged from American public life, we’re going to remain locked into the nation he built on its appeal, its future shaped, as so much of its past has been, by its racism and its fear.
The New York Times
