Nixon’s Shadow

Abstract

Like old generals, American lawyers and judges have spent the last quarter-century fighting the last big war. The war, of course, was Vietnam and its constitutional counterpart was Watergate. The enemy was the Imperial President, Bad King Richard; and victory came when Nixon unconditionally surrendered after his smashing defeat in the Tapes Case. The King was dead! Long live.., the Court. But the Tapes Case opinion reflected a troubling imperialism of its own-judicial imperialism-and featured remarkably sloppy reasoning. The Justices reached the right result but for the wrong reasons. Ever since, Americans have refracted everything through the twisted prism of this great case, and so the law of the Presidency today is badly distorted. There may still be time to set the law straight-doubtless too late for this President, but perhaps in time for the next. The first step is to see where the law of the Presidency began to go wrong-in the landmark Tapes Case.