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Obamacare Ruling Doesn't Surprise Supreme Court Expert

A Trinity professor, Kevin McMahon of West Hartford, authored a book on Nixon and the High Court.

Last week’s Supreme Court ruling upholding most of President Obama’s health care law did not come as a surprise to Professor Kevin J. McMahon. The Trinity College political science professor and expert on the American presidency, constitutional law and the Supreme Court anticipated that Chief Justice John Roberts would vote to uphold the legislation — not wanting to become known as a chief justice who rejected the “most important piece of legislation of the Obama administration.”

“It was a really crafty opinion by Roberts,” McMahon said in a phone interview from his West Hartford home. “I didn’t expect the tax argument [Roberts found a narrow way to uphold the law as an exercise of Congress’ taxing power], but I did expect Roberts to vote with the liberal justices. But I honestly thought the decision would come down to uphold, 6-3 (and not 5-4), while I did think Roberts would vote to uphold.”

McMahon knows of what he speaks. He is the author of two critically acclaimed books on presidents and their relationships to the Supreme Court. His first book, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown, came out in 2004, and last year, he published a book on Richard Nixon called Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences. (University of Chicago Press, 2011).

In Nixon’s Court, McMahon argues that Nixon has been misunderstood. Against conventional wisdom, Nixon did not set out to make the Supreme Court as conservative as his public rhetoric but had a practical and political motivation in nominating justices. He wanted to name judges who would attract disgruntled Democratic voters to the Republican Party. These voters were primarily southern whites and working-class white voters from the Northeast. (When Nixon was elected president, the composition of the Supreme Court was one of the central issues in the election, with the Court under Chief Justice Earl Warren viewed as an activist, liberal court.)

Nixon, who campaigned for the presidency at a time when urban rioting and crime were on the rise in America, succeeded on both the legal and electoral fronts, said McMahon. He appointed four Supreme Court justices who would advance his law and order and school desegregation agendas and attract members of the “Silent Majority,” in hopes of disrupting the long-dominant New Deal Democratic coalition, noted McMahon.

The most significant of his appointments was that of William Rehnquist, who was the leading intellectual conservative thinker on the Court, said McMahon, and who began the process of transforming the Court to a more conservative posture. Rehnquist would eventually be named chief justice by Ronald Reagan. Nixon also appointed Warren Burger to replace retiring Chief Justice Warren. Burger was an advocate of a strict-constructionist reading of the Constitution, with which Nixon agreed, explained McMahon.

However, the Nixon administration didn’t pursue controversial social issues such as abortion. For example, said McMahon, the Nixon White House didn’t even file a legal brief in the landmark Roe v. Wade case. “That today would be unthinkable,” added McMahon.

Reviews of McMahon’s book have been overwhelmingly positive, with legal scholars from institutions such as the University of Chicago calling it “utterly engaging” and an “important book” which will “force scholars to rethink not only Nixon’s presidency, but also the very criteria upon which they categorize all presidents’ successes and failures.”

“McMahon’s book is highly readable for undergraduate students and general readers as well as academics. Nixon’s Court is an outstanding contribution to presidential studies and Supreme Court history that revives the understanding of the Nixon presidency and the Republican resurgence that followed,” wrote M.N. Green of Catholic University. Frank J. Colucci in a Law and Politics book review said: “McMahon shows how the larger context of American politics shaped the judicial policies of a president who cared less about waging a jurisprudential counter-revolution and more about doing whatever was necessary to remain in power.”

Fulbright Winner

Born in Troy and raised in Watervliet, NY, McMahon graduated from SUNY at Potsdam in 1988 and earned a PhD at Brandeis University in 1997. At Trinity College, where he has taught since 2005, McMahon is the John R. Reitemeyer & Charles Dana Research Professor in the Department of Political
Science. He taught for two years in Russia with the Civic Education Project, commonly regarded as the “academic Peace Corps.” He previously taught at the State University of New York, Fredonia, where he was honored with the Hagan “Young” Scholar Award. In 2006, he was a Fulbright Distinguished Research Chair at the University of Montreal.

His first book on Roosevelt was given the American Political Science Association’s Richard E. Neustadt Award for the best book published on the American presidency in 2004. He is also the co-author/editor of three books on the presidency and presidential elections and author of several book chapters and journal articles. McMahon also won the Founders' Award for his conference paper “Richard Nixon, the Supreme Court, and the Politics of Desegregation in the Urban North,” by the American Political Science Association in 2010.  

A West Hartford resident for the past five years, McMahon dedicated Nixon’s Court to his son Brooks, who will enter kindergarten at Duffy Elementary School in the fall.

So where is the Supreme Court headed in the future? McMahon said it depends on what happens to the nine justices on the Court, some of whom are elderly. If Obama is re-elected, McMahon expects Ruth Bader Ginsburg to step aside, but as a liberal, her departure wouldn’t affect rulings so much. But if conservative-leaning Justices Antonin Scalia and Anthony Kennedy leave (either by retiring or ill health, for example), “that would change things dramatically,” said McMahon.

"The Court is so divided," McMahon said. "If one conservative judge leaves, it could change things for years to come."

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