Judicial Power

Richard H. Fallon, Jr

doi:10.1017/CBO9781139108867.015

9 - Judicial Power

Published online by Cambridge University Press: 05 May 2013

Richard H. Fallon, Jr

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Richard H. Fallon, Jr: Affiliation:
Harvard University, Massachusetts

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Summary

[T]he judiciary, from the nature of its functions, will always be the least dangerous [branch of government].…It may truly be said to have neither force nor will, but merely judgment.

– The Federalist No. 78

The Imperial Judiciary lives.

– Justice Antonin Scalia, protesting a Supreme Court decision upholding abortion rights

IN 1973, DURING A CONGRESSIONAL INVESTIGATION INTO abuses of power by the presidential administration of Richard Nixon and illegal activities by the Nixon reelection campaign, it came to light that Nixon had secretly recorded a large number of conversations in the Oval Office. The special prosecutor charged with investigating wrongdoing by administration and campaign officials demanded access to the tapes. When Nixon refused, the special prosecutor sought a court order directing Nixon to hand them over.

Whatever his personal motivations, Nixon had a serious constitutional argument that the tapes were protected by “executive privilege” – a prerogative of the President, as head of the Executive Branch, to protect papers, tapes, and other evidence of what his advisers had said to him and he to them in the course of making presidential decisions. According to Nixon, it would harm the presidency, and thus the country, if Presidents could not receive advice and probe policy options on an absolutely confidential basis. Nixon, of course, acknowledged that Presidents could disclose any information that they saw fit.

Type: Chapter
Information: The Dynamic Constitution
An Introduction to American Constitutional Law and Practice
, pp. 275 - 298

DOI: https://doi.org/10.1017/CBO9781139108867.015 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2013

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9 - Judicial Power

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