Did Nixon Threaten a Supreme Court Justice?

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Nixon called the head of the F.B.I. in '71 to say he wanted to literally outlive Justice Byron White. (Nixon apparently did not say, :"Could you make that happen?") [unknown photographer]

The White House tapes show it vividly. President Nixon was hopping mad about a Supreme Court decision that said the government had no authority to stop The New York Times and other newspapers from publishing the so-called Pentagon papers.

The 6-to-3 decision came down on June 30, 1971. Within hours, on July 1st, Nixon was venting on the phone to the head of the F.B.I., J. Edgar Hoover.

"I wanted to tell you that I was so damned mad when that Supreme Court had to come down -- I didn't like that decision. That was unbelievable, wasn't it?"

Hoover, acting like a yes-man and sounding like an echo chamber, agreed.

"Unbelievable," said Hoover.

"Those clowns we've got on there, I tell ya, I hope I outlive the bastards," said Nixon.

"I hope you do, too," said Hoover.

"I mean, politically, too," Nixon said, underlining the fact that he meant "outlive the bastards" quite literally. "Because we've got to change our Court."

"There's no question about that whatsoever," said Hoover. "If I had thought there was a possibility of a five to four..."

Hoover doesn't finish his sentence, though Nixon gives him the space to do so and doesn't interrupt him. The sense of what Hoover is saying is, "If I had thought there was a possibility of a five to four, I would have done something about it."

"I thought we ought to get [Justice Byron] White," says Nixon. The President's meaning is apparently, "We should have won White's vote on this case," but the ambiguity of "get White" is attention-getting in this context.

And Hoover agrees, saying White is "in with the whole Kennedy crowd." White, of course, was the only Justice on the Burger Court appointed by Nixon's one-time arch-nemesis, President John F. Kennedy.

Hearing the tape today, it's hard to deny that Nixon's remarks to Hoover sound a bit like a threat of extra-legal action against Byron White.

After all, the president is speaking to the head of the F.B.I., choosing his words carefully, one assumes, so as to not send the wrong signal. Nixon could have expressed his anger with many different phrases: "I've had it up to here," "I'm sick of those guys," "The Court is killing me," etc.

But instead he chose to say and repeat the unusual phrase, "I hope I outlive the bastards." Then he underlines his meaning by saying that he's not stating that merely figuratively. And singles out White. (And one also has to wonder why Nixon was even talking to Hoover about this particular subject. Was the head of the Bureau the appropriate person for Nixon to have talked to about this?)

And Hoover, ever the lacky, agrees with Nixon and even leaves a phrase dangling unsettlingly.

Was Nixon subtly signaling to Hoover he should "get White," perhaps by, say, using the apparatus of the FBI to arrange some sort of dirty trick or even something darker? (Nixon, of course, was known to have used both dirty tricks and government agencies against people he perceived to be his enemies.)

The July 1, 1971, Nixon-Hoover tape is included with other raw audio footage in the "extras" section of the documentary "The Most Dangerous Man in America," though the film makers do not raise any of the questions that I'm raising in this piece. The audio is also included on this website: http://nixontapes.org/jeh.html

For the record, Justice White ended up dying in 2002, outliving Nixon by eight years. He was replaced by Ruth Bader Ginsburg, who still serves on the Court.