Part II
7.
BY THE EARLY 1970S, THE IMPACT OF THE END OF THE Bracero program in 1964 and the signing of the Hart-Celler Immigration and Nationality Act of 1965 was becoming clear at the border. Although the demand for Mexican labor in the agricultural and manufacturing sectors remained, the legal pathways to enter the country and to work were rescinded. Mexican laborers continued to travel to the United States for the same jobs they had before, but now that migration was against the law and resulted in a surge of apprehensions by the Border Patrol. The Border Patrol apprehended only 40,000 people in 1965, but by 1974 it soared to over 570,000.
This dramatic increase led to many new cases in the courts contesting the Border Patrol’s authority to stop and search vehicles in the border zone. The Border Patrol remained a small agency in the early 1970s—only 1,500 agents—and they primarily conducted immigration enforcement in the interior of the United States. The border line was long and difficult to guard in remote areas. Instead, the agents opted to search for immigrants away from the line at trails known to be used by smugglers and on highways that led away from the border into the United States. After the border zone was defined in 1947 as within one hundred miles of borders and coastlines, the agency set up interior checkpoints deep inside the United States to stop all vehicles to check the occupants’ immigration status. They also routinely deployed agents on roving patrols on interior roads where they pulled over vehicles, without a warrant or any probable cause, to ask about their immigration status.
The Border Patrol’s congressional authorization had remained largely unchanged since it was written in 1925 and allowed the agents to “board and search” vehicles without a warrant. A change in the wording in 1946 removed the need for the agents to have any belief that an individual was in the country without documents. Instead, the Border Patrol believed they had the authority to stop and search every single vehicle on American back roads and interstate highways up to one hundred miles from the border and coastlines.
The practices of the Border Patrol seemed to violate the basic protections against unreasonable searches and seizures that were guaranteed in the Fourth Amendment of the Constitution. The key cases that finally tested the constitutionality of the Border Patrol’s expansive congressional authorization to make stops in the border zone reached the Supreme Court in 1973, 1975, and 1976. The first case, Almeida-Sanchez v. United States, considered whether the Border Patrol could search a vehicle twenty miles north of the border without any suspicion whatsoever. In 1975, the court heard the case of Felix Brignoni-Ponce, United States v. Brignoni-Ponce, whose stop was based only on his apparent Mexican appearance. In the same term, the court also heard three other Border Patrol cases, including United States v. Ortiz, about whether the Border Patrol could search vehicles at an interior checkpoint without a warrant. The final major Border Patrol case was United States v. Martinez-Fuerte in 1976, which considered whether the Border Patrol could set up interior checkpoints, which resulted in the brief detention of every single vehicle that drove through the checkpoint whether the driver was an American citizen or not. The decisions the justices made in these cases are still in force today and shape the lives of millions of citizens and noncitizens alike.
In the early 1970s, it was not yet clear on which side the court would rule. Would they focus on the text of the Constitution that protects individuals from unreasonable searches and seizures by the police? Or would they prioritize the Border Patrol’s congressional authorization that waives the need for a warrant to stop and search vehicles for immigration enforcement purposes? Only time would tell.
What was clear as these cases made their way to the Supreme Court was that the political climate in the United States had changed. The liberal presidencies of John F. Kennedy and Lyndon Johnson in the 1960s were followed by a conservative resurgence and the election of Richard Nixon in 1968. One of Nixon’s campaign pledges was to reverse the series of pro-defendant decisions by nominating conservative law-and-order justices to the Supreme Court. The legality of the Border Patrol’s authority would be considered in this more conservative milieu, and one of Nixon’s four nominees to the Supreme Court, Lewis Powell, would play a decisive role in all the major Border Patrol decisions of the 1970s.
Nixon’s Conservative Supreme Court
Many politicians run a campaign promising bold changes, but Nixon was uniquely presented with the chance to achieve it in his first term. In his first four years in office, Richard Nixon had the unusual opportunity to select four new justices for the Supreme Court: Warren Burger in 1969, Harry Blackmun in 1970, and Lewis Powell and William Rehnquist in 1971. In the process, liberal justices who had expanded Fourth Amendment protections in the 1960s were replaced by conservatives who all shared Nixon’s focus on using the bench to impose “law and order.”
Law and order can seem like an innocuous phrase. It draws on the belief that societies are governed by rules and that if someone breaks the rules, they should be arrested and locked up for their crime. In the late 1960s, this argument resonated with white voters as Nixon made it one of his campaign slogans. The demand for more rights for African Americans, combined with agitation against the Vietnam War, led to a sense on the part of many whites that the vision of 1950s American life was dissolving into chaos.
The civil rights and antiwar movements both relied on civil disobedience. Civil rights leaders led sit-ins to protest white-only policies and encouraged people to break morally unjust rules that protected racial segregation. This, however, violated some people’s belief in the obligation to obey the law and led to fears about lawlessness. At the same time, the Supreme Court’s rulings—for example, the Mapp and Miranda cases that created the exclusionary rule and required police to inform people of their right to remain silent and to have legal counsel—were described as limiting the ability of the police to enforce the law. Nixon used these threads to weave a story about the potential collapse of American society if law and order was not restored.
In Nixon’s acceptance speech at the 1968 Republican National Convention in Miami, Florida, his primary theme was law and order. He began, “My friends, we live in an age of revolution in America and in the world.” He argued that America’s revolution in 1776 was based on both progress and order, saying that order is essential for that progress to occur. He continued, “Tonight it is time for some honest talk about the problem of order in the United States.”
Nixon put the blame for the lapse in order on the Supreme Court under Earl Warren: “Let us also recognize that some of our courts, in their decisions, have gone too far in weakening the peace forces as against the criminal forces in this country.” The audience broke into sustained applause. He concluded by saying, “And to those who say that law and order is the code word for racism, here is a reply. Our goal is justice, justice for every American . . . Just as we cannot have progress without order, we cannot have order without progress . . . And so as we commit to order tonight, let us commit to progress.”
Despite Nixon’s effort to defuse the charge of racism by acknowledging but not really addressing it, “law and order” functioned as a mechanism for reframing racial bias into a more palatable form. Richard Nixon rode the law-and-order platform to the presidency by campaigning against civil disobedience and the liberal Supreme Court under Earl Warren that weakened the position of the police. Nixon’s victory would have a profound effect on the Supreme Court.
Nixon’s first chance to appoint a new Supreme Court justice came at the start of his term when he selected Warren Burger to replace the retiring Chief Justice Earl Warren. Burger was involved in local Republican politics and helped deliver the Minnesota delegation to Dwight Eisenhower during the 1952 Republican convention. After Eisenhower’s election, he was named assistant attorney general in the civil division of the Justice Department, where he worked under Attorney General Herbert Brownell Jr. In 1956, he was appointed to the D.C. Circuit Court of Appeals. In the 1960s, he spoke frequently about his concerns over how far the criminal justice system had swung toward protecting defendants, language that fit perfectly with Nixon’s campaign focus on law and order. He was nominated as the chief justice on May 21, 1969, and he was confirmed by the Senate in a 74–3 vote. A retrospective on the Burger Court summed him up as “A conservative chief justice for conservative times.”1
Burger looked the part of a chief justice, with the silver hair, height, and baritone voice to perform the role of authority. Behind the scenes, he was an adept manager, working to improve the conditions of the court building and the flow of work. However, as a jurist, he was not well regarded. His colleagues were often unhappy with his opinions, which they thought were not well argued or written, and they often had to write memos to him to suggest the arguments he should make. Court documents also show that Burger routinely argued against a particular outcome behind the scenes, for example in Roe v. Wade, but then joined the majority at the end so that he would not be seen as weak.
Only a few months into his term, Nixon got his second chance to nominate a new Supreme Court justice when Abe Fortas resigned on May 14, 1969, amid an ethics scandal. Fortas had signed a retainer with a financier who was under investigation for fraud that paid Fortas $20,000 ($140,000 in 2022, adjusted for inflation) per year for the rest of his life. After the House of Representatives began impeachment proceedings against him, Fortas resigned.
Harry Blackmun became Nixon’s second appointment to the Supreme Court but, as Blackmun liked to joke, he was “old number three,” since Nixon’s first two nominees for the position, Clement Haynsworth and G. Harrold Carswell, were both withdrawn. Blackmun was really number four, because Nixon also offered the position to Lewis Powell, who privately turned it down. (Powell would join the court two years later.)
Blackmun happened to be a lifelong friend of Chief Justice Warren Burger. The two first met when they were five. Blackmun worked as counsel for the Mayo Clinic before becoming a judge on the Eighth Circuit Court of Appeals in 1959, after much encouragement from Burger to pursue a judgeship. Nixon nominated Blackmun on April 15, 1970, and he was unanimously confirmed on May 14. Initially, he was seen as a second vote for Chief Justice Burger, gaining the names “Minnesota Twin” and “Hip Pocket Harry.” Later he strayed away from the conservative bloc, becoming a swing vote who eventually sided most often with the liberals from the early 1980s until he retired in 1994. He was perceived to be a slow worker by the other justices and got a small share of cases assigned to him. His most significant ruling was Roe v. Wade, which legalized abortion in 1973.
Nixon’s good fortune with the Supreme Court continued in September 1971 when both Hugo Black and John Marshall Harlan, who were both ill, announced their retirements on September 17 and September 23 respectively. Black had a stroke two days after stepping down and died on September 25. Harlan had spinal cancer and passed away on December 29. With two more openings, Nixon decided to announce them together, hoping that the older, well-respected, and moderate Lewis Powell would draw attention away from the younger, brash, and conservative William Rehnquist.
Rehnquist worked as a meteorologist before using the GI Bill to enroll at Stanford University where he got a BA and MA in political science. After obtaining an MA in government from Harvard in 1950, he returned to Stanford for his law degree and finished first in his class. During his time at Stanford Law, he briefly dated another student, Sandra Day O’Connor, who would later be one of his colleagues on the Supreme Court. A 2018 biography of O’Connor said that he proposed to her, but she rejected him.2
Rehnquist was confirmed by the Senate on December 10, 1971, by a vote of 68–26. In his early years on the court, Rehnquist saw himself as an archconservative block of one, often finding himself in dissent, and he came to be known as the “Lone Ranger.” His law clerks gave him a small Lone Ranger doll he kept on his office shelf. However, he was well liked by his colleagues and many people commented on his charming nature as well as his intelligence.3 Rehnquist used his charm for behind-the-scenes maneuvering to ensure that even if he was on the wrong side of the ruling, it was still infused with the ethos of law and order. Rehnquist did precisely this in several of the Border Patrol cases that soon came before the court.
Lewis Powell
The Burger Court was meant to be a conservative revolution, particularly on crime, but it ended up not being quite as radical of a break as expected, and it largely upheld the rulings of the Warren Court. In many of its most high-profile rulings in the early 1970s, the court made liberal decisions. In addition to effectively ending the Nixon presidency in 1974 by unanimously ruling that he had to turn over tapes and other materials to a federal court, the court struck down capital punishment in Furman v. Georgia in a 5–4 ruling in 1972 and legalized abortion in Roe v. Wade in a 7–2 vote in 1973.4 The Burger Court also allowed racial preferences in college admissions through affirmative action in Regents of the University of California v. Bakke in 1978.
In many of these surprising decisions, the decisive votes were cast by Lewis Powell, a southerner with deep roots in segregated Richmond, Virginia, and Nixon’s final “law and order” addition to the Supreme Court. Powell’s ancestor Nathaniel Powell was an original Jamestown settler and the acting governor of the colony. However, Lewis Powell did not grow up in the aristocracy of the South, but rather in a modest, middle-class family. He was a good student and athlete, but his wide ears bothered him growing up and he once tried taping them to the side of his head while he slept in a failed attempt to reshape them. While most boys from his private high school attended the University of Virginia, he instead chose the smaller and more remote Washington and Lee University, in hopes of continuing to play baseball, but he did not make the team.
Powell excelled at Washington and Lee, where he was student body president and graduated first in his law class in 1931. He received a Master of Law degree from Harvard University in 1932 but spurned high-paying offers at New York law firms to return to his roots in Richmond. After a few years, he settled at Hunton Andrews Kurth LLP, as the firm is currently known, where he would remain until he joined the Supreme Court.
Powell volunteered for World War II, where he became the American liaison to the top-secret Ultra project. A team of mathematicians and code breakers led by Alan Turing figured out how to decrypt messages sent by the Germans with their Enigma machine. The intelligence from the project proved invaluable for the Allies, but they were constantly worried that if they used too much of it, the Germans would realize their secret code had been broken. Consequently, officers with discretion, like Powell, were brought in to figure out how best to hide the sources of the intelligence when transmitting it to commanders in the field. The Ultra project remained secret until the early 1970s, when Powell, by then on the Supreme Court, was revealed to have played a role.
After the war, Powell returned to private practice with Hunton Andrews Kurth LLP, where he was particularly adept at bringing in major clients to the firm, including Philip Morris, Ethyl Corp, and the Colonial Williamsburg Foundation. He served on the board of directors for several of these corporations, including the tobacco giant Philip Morris from 1964 to 1969. He even tried to take up smoking to be in solidarity with the firm and would pose with a cigarette in hand for photos of the board.
Powell believed in the patriotic duty of citizens to serve, and he was frequently appointed to boards, committees, and task forces in the state of Virginia and eventually nationally. The most contentious position he held was chair of the Richmond School Board from 1952 to 1961, a period that included the momentous Brown v. Board of Education ruling and massive resistance to integration from politicians in the state. During Powell’s tenure on the board, there were no Black students in white Richmond schools until 1960. When he resigned in 1961 to join the state school board, only 2 of 23,000 Black children went to white schools. John Jeffries, in his authorized biography of Powell, concluded, “What emerges from these details is a picture of local collaboration in maintaining segregated schools long after they were declared unconstitutional.”5
Powell began to see his national profile rise after he was elected president of the American Bar Association in 1963. He used the position to update ethics rules and to push for better legal aid for the poor, but his focus in many of his speeches was what he saw as a weakening of the rule of law in the United States. In 1965, Lyndon Johnson asked him to chair the president’s Commission on Law Enforcement and the Administration of Justice. He declined the role of chair, but agreed to serve on the committee, which produced a report entitled “The Challenge of Crime in a Free Society.” Powell and several other conservative members of the committee were not completely pleased with the final report, so they authored a supplemental statement on “Constitutional Limitations” that was seen as a critique of the Warren Supreme Court.
Powell felt that recent Supreme Court decisions “unduly limit reasonable law enforcement activities” and that “pendulum may possibly have swung too far” in favor of defendants’ rights.6 He particularly disliked the exclusionary rule from the Mapp decision that dramatically expanded Fourth Amendment protections. In words that must have been music to the ears of Richard Nixon, he wrote that there was “an alarming increase in crime” and a “partial breakdown in law and order” that could be a “prelude to revolution.” For Powell, recent Supreme Court decisions “render the task of law enforcement more difficult.”7 Although these positions were out of step with Johnson and other Democrats, they positioned him well if a more conservative Republican were to become president.
Just before his nomination to the Supreme Court, Powell authored what came to be known as the Powell Memorandum, a confidential memo to the U.S. Chamber of Commerce titled “Attack on American Free Enterprise System.” The memorandum identified an effort by academics, media, activists like Ralph Nader, and celebrities to undermine the capitalist system of free enterprise. In the memo, Powell laid out a multipronged approach for conservatives to counter this threat by using many strategies that have become the modus operandi of the right: calling for equal time in media, funding right-wing speakers on college campuses, and most significantly establishing a conservative academic counterweight to universities in the form of think tanks. The Powell Memorandum spurred the creation of the Heritage Foundation, the Manhattan Institute, the Cato Institute, and efforts to lobby local governments for pro-corporate legislation, such as those pursued by the American Legislative Exchange Council.
Nixon first asked Powell to join the Supreme Court in 1969 to fill the seat that went to Harry Blackmun, but Powell said no, feeling he was too old. Powell did not accept the nomination immediately in 1971 either, taking a day to think it over. For one thing, the capitalist-minded lawyer would see a substantial drop in pay by leaving his firm for the court. Powell, at sixty-four, was also an unusually old nominee for the bench. However, he felt the obligation to serve and reluctantly agreed to the nomination. He was confirmed 89–1 on December 6, 1971. He is the fifth-oldest person to begin a Supreme Court position, and he ended up serving sixteen years, until his retirement in 1987.
When Powell arrived at the court, he was well prepared for the business-oriented cases, but he relied heavily on his clerks to get him up to speed on the dizzying array of other constitutional questions. His pragmatism and careful consideration of the facts in each case meant that he was often in the middle of the conservative and liberal blocs as he looked for compromise. The tendency to give his clerks substantial responsibility and his desire for a just and fair outcome based on the facts in each case resulted in a series of unexpected positions on abortion, capital punishment, and affirmative action.
Although Powell did not have any experience with the border or immigration, he found himself casting the critical votes in each of the Border Patrol cases. His decisions in these cases were among those that he agonized over the most and were some of the most surprising decisions of his career, beginning with the case of Condrado Almeida-Sanchez in 1973.