by Bob Woodward
The Chief was not about to shift his own vote. Nor were Black, White or Blackmun, the other members of the original majority. They were particularly disturbed that Harlan wanted to stress the government's twisting of the facts. Harlan's view could mean that all Black Muslims would be eligible for the conscientious objector status.
The Court year was coming to a close. If the Court remained deadlocked, Ali would finally go to jail for draft evasion. Since decisions in which the Justices were equally divided were not accompanied by opinions, Ali would never know why he had lost. It would be as if the Court had never taken the case.
Stewart was particularly upset by this prospect. He proposed an alternative: the Court could simply set Ali free, citing technical error by the Justice Department. The proposal had several advantages. For one, the ruling in this case would not become a precedent. It also would not broaden the categories under which others might claim to be conscientious objectors.,
Gradually, all but the Chief agreed to go along with Stewart's plan, giving Ali seven votes.* That left Burger with a problem. If he dissented, it might be interpreted as a racist vote. He decided to join the others. An 8-to-0 decision would be a good lift for black people, he concluded.
Stewart drafted the final unanimous per curiam. Ali's victory was announced on June 28. He heard the news in Chicago. "I thank Allah," Ali said, "and I thank the Supreme Court for recognizing the sincerity of the religious teachings that I've accepted." He did not know how close he had come to going to jail.
As the end of the term approached, Black's health continued to deteriorate. One day during the last week in May, he was returning to his chambers following conference when his knees buckled. By the time his clerks reached him and carried him into his office, he was shivering with a high fever. "They are after all my old majorities," he babbled as his clerks wrapped him in a blanket.
Black recovered from the fever, but his strength was seriously depleted. Disabling headaches plagued him, and his cheerful whistle as he strolled through the marble halls was suddenly missing.
* Douglas's concurrence retained language making it obvious that it was originally a dissent. His clerk, who normally would have corrected it, refused to work further on the opinion after Douglas insisted on retaining an incorrect statement of the Black Muslim position on holy wars.
For Black, who advocated positive thinking as the cure for every malady, the idea that he was no longer in full control of his own destiny was torture. For years, he had talked of how Holmes, Brandeis and Cardozo had lingered on at the Court, unable to perform their work competently. But Black was determined to remain. He had resisted Warren's and then Douglas's hints that he resign, and he had done his best to ignore Harlan's remarks that perhaps they both had stayed on too long. Now, in his thirty-fourth term, he had kept on his desk a small card bearing the exact lengths of service of John Marshall and Stephen J. Field. Both had served thirty-four terms and he would surpass both in a few months. But, finally, he was no longer sure that he could hold out.
On June 13, however, Black read a lengthy article in that Sunday's New York Times with unusual interest. It was the first installment of a top-secret government history of United States involvement in Vietnam. The Times cited numerous documents showing that government officials had lied to the American people about the war for three decades. The articles were based on a massive study, commissioned by former Secretary of Defense Robert S. Mc-Namara, covering the period 1945-1967. The entire 47-volume set, called The Pentagon Papers, was considered extremely sensitive. Black was pleased to see the press expose what he regarded as a long, sordid story.
The series continued the next day. But on Tuesday, June 15, Attorney General John Mitchell, arguing that the articles endangered the national security, obtained an order in federal District Court in New York enjoining further publication.
Black was stunned. "They're actually stopping it," he said to his clerks. In his view, that was an obvious violation of the First Amendment. The press was free; it could not be stopped from publishing material the government thought damaging to the national security. That was prior restraint; it was an absurd notion.
On Friday, June 18, publication of The Pentagon Papers began in The Washington Post, which had also obtained portions of the secret war study. The government lost twice in federal courts, before securing a temporary restraining order against the Post. By the following Thursday, June 24, both cases were before the Supreme Court (New York Times v. U.S. and U.S. v. The Washington Post). For Black, the developments were like a shot of adrenaline.
Both papers had been stopped from publishing the war series for almost a week. Each day's delay, in Black's view, was a defeat for the press and for the First Amendment. The authors of the First Amendment had anticipated that the press's ongoing critique of the government would involve great risk.
Black geared up for what was clearly going to be a historic test, and this case was not going to be easy. Black felt that Brennan and Marshall, as well as Douglas, would probably join him in favor of the newspapers' right to publish. The Chief, Harlan and Blackmun would likely be on the other side. That left Stewart and White for the fifth vote that Black needed. White was never a great supporter of First Amendment freedoms. He might sympathize with the Justice Department in this case, or he might fear what the papers would say about John Kennedy's role in the war. No one really knew what the Times or Post had.
Stewart was the key. As an establishment Republican, Stewart might back the administration's position, but he had good First Amendment credentials. At times, Black thought he had the votes to win; at other times, he was not so sure. One thing was certain: his headaches were less severe.
Harlan was exceedingly upset with the haphazard way in which the Pentagon Papers case had arrived at the Court. The Justices were considering a case less than twenty-four hours after the appeals. To make matters worse, they were going to decide immediately both on cert and on whether to continue the injunction. The case had come to them so quickly that it was impossible to calculate what consequences might result from an erroneous decision.
In 1931, in Near v. Minnesota, the Court had suggested that the government probably could prevent someone from publishing "the sailing dates of transports or the number and location of troops." Harlan read that to mean that when the national security was endangered, it had to be balanced against First Amendment freedoms. Harlan wanted to send the Pentagon Papers case back to the lower courts. He wanted a stronger foundation on which to base a decision. Why should the Court be required to make an instantaneous decision on an issue of such apparent magnitude? The injunctions should be continued until the Court could make some responsible determination. Harlan resolved not to be pushed into a hasty decision.
The last thing Stewart wanted was a delay. The temporary injunctions had been in force too long already. He would not accept any drawn-out decision making while the newspapers were kept from publishing. It wasn't really the great battle of the First Amendment and national security that it appeared on the surface. The issue was basic and factual. Were there in the documents matters that, if published, could truly threaten the national security?
Stewart would not accept the government's claim of national security on its face. The government had lied too much about the war already. At the same time, Stewart wanted to make sine that nothing in the papers was so sensitive that disclosure might result in deaths. It was difficult. A lot rested on the Court's decision, and he was possibly the swing vote. Contrary to his normal practice, he sought little advice from his clerks. "You're only the clerks," he said gently, "and I will have to decide for myself."
With the term substantially over, Stewart knew that normal procedures would have to be expedited if the Justices took the case. They would need a special session, maybe that weekend, to hear oral arguments, and they would have to render a decision almost at once. The prior-restraint issue virtually required that they act immediately. To delay would be to decide the cas
e in favor of the government
On Friday, June 25, eight Justices convened for the last regularly scheduled conference of the term; Douglas was already in Goose Prairie, Washington, where he had a cabin. The Justices quickly took up the question of whether the Times case should be granted cert.
Black took an absolute First Amendment stand. The Times and Post should be free to publish what they want. The Court should not even hear the case, and it should lift the injunctions immediately.
Douglas had phoned in his position. He agreed with Black. Brennan and Marshall, for different reasons, took this position too. To accept the cases and proceed in a normal manner would set a precedent for stopping the presses while courts tried to ascertain how much damage the articles might cause. These four Justices were ready to grant cert immediately and let publication resume at once. Normally only four votes were necessary to grant cert. But the two cases were being brought as emergency appeals and, under the Court's internal rules, that required a fifth vote.
Burger, Harlan, White and Blackmun all wanted to hear argument in October and continue the injunction until then. So Stewart held the crucial vote. He was unwilling to prevent publication until the fall. He was ready to grant cert now.
Harlan was annoyed by the haste with which the cases had been propelled through the lower courts. The Court's most shameful and wrenching episodes had come from acting hastily. He preferred to let the New York Times case return for an additional hearing in the lower federal court. Then, if an appeal was still sought, it could be considered with the Post case at some later date, next fall. He was willing that the temporary injunction against publication continue for weeks or months. But Stewart said that if that happened, he would join the four votes for a summary decision in favor of the newspapers and would lift the injunction against them. Without an injunction, the case would be moot, purely academic and publication would continue. Reluctantly Harlan joined the others in voting to grant cert. The expedited oral argument was immediately scheduled for the next day.
Griswold realized that he had some fast work to do. He calculated that it would take ten weeks to read the entire 47-volume history—which was obviously impractical—so he called in three top national-security officials to help sift out the most important "Top Secret" documents. They suggested that forty-one items—some entire volumes—be listed.
Griswold was amazed. To try to exclude so much of the material would hurt their case. He had already warned Attorney General Mitchell that the case should never have been started, that the government could never win. Any "dirt" in the papers was "all on Johnson and not you,"
Griswold had told him. Mitchell had replied that if Griswold didn't press ahead, the administration would find someone else to argue the case.
Griswold filed the long list with the Court by 5 p.m. But he knew that to make the national-security claim credible, he must create a shorter, more persuasive list. By the next morning, he had managed to pare down the number of alleged national-security items to eleven, although one item comprised four volumes that detailed diplomatic efforts to end the war and secure the return of American prisoners of war.
By mid-morning Saturday, a long line of people had formed outside the Court. Many had been waiting hours in hope of attending the oral argument.
That morning, when Griswold filed the shorter list as part of a secret brief, he also requested that the oral argument be held in secret, without press or public present. This was the procedure the lower courts had followed for at least part of the argument. It would allow him to discuss "top secret" and even more highly classified items.
The sealed record had been placed in the conference room, with security guards stationed at the doors. A memo over Burger's name had been posted there—". . . the Conference Room is 'off limits' due to material placed there for the Justices."
The Chief was taking the national-security aspects of the case at face value. He expressed his fear that some antiwar clerk might gain access and leak the papers.
Black joked with his clerks that he would not look at the sealed record anyway. To do so was inconsistent with his First Amendment views. After all, he regularly passed up the opportunity to view the pornographic movies that came into the Court. Individual judgments were unnecessary. Every book, every newspaper article, every movie was protected. But he knew that the clerks were concerned that he might see this as he had seen the Cohen Fuck-the-Draft case, as something other than free speech, and vote the wrong way. "Somehow I'll find a way to call this conduct rather than speech," he quipped.
The Justices arrived and met briefly to discuss Griswold's request for a closed hearing. The request itself had been secret; the lawyers for the two newspapers had not been told. Black, Douglas, Brennan and Marshall wanted the arguments to be open. Burger, Harlan and Blackmun were willing to close them. Stewart and White wanted some better indication of what extraordinary circumstances justified secret proceedings. The record from the lower courts revealed that little of the matters that had been discussed was of sufficient sensitivity to warrant excluding the public. Stewart said that secret proceedings would hurt the Court's reputation.
In addition, Griswold's credibility with the Justices had not been helped by his forecast of two months before that there would be mass insurrection if the veterans were allowed to camp on the Mall. He had embroiled the Court in a needless controversy. Stewart and White were not about to be taken in again. They voted with the four others to deny the motion.
At 11 a.m., the Chief opened the session before a packed courtroom. Douglas had flown back from Goose Prairie.
Griswold sat at the government counsel's table across from the lawyers for the two newspapers. Beneath the table were three boxes containing the forty-seven volumes of the Pentagon Papers. "The heart of our case," Griswold said, "is that the publication of the materials specified in my closed brief will . . . materially affect the security of the United States . . . [and] the process of the termination of the war . . . [and] of recovering prisoners."
Griswold presumed that he had no hope of winning Black, Douglas, Brennan or Marshall. He focused his appeal on the other five. A more general, less restricted concept of national security was required, Griswold argued, than was mentioned in the 1931 decision suggesting a ban on publication of "sailing dates" and "location of troops."
Stewart and White pressed Griswold. The potential harm must be immediate to justify prior restraint?
No, Griswold argued, it would be too narrow a standard to require that publication result in "a war tomorrow morning, when there's a war now going on." National security had to include peace overtures, for instance, and ongoing negotiation for the release of prisoners of war, and even more remote negotiations such as the Strategic Arms Limitation Talks (SALT) or Middle East peace plans. These were processes, chains of events, that could be "irreparably" harmed by publication of certain details. This would surely harm "national security" in a way that would justify prior restraint.
Yale Law Professor Alexander Bickel, a renowned constitutional scholar, argued next for the Times. He pointed out carefully that the New York Times's position was not absolute. There might be cases when national security considerations would justify prior restraint. This, however, was not such a case, he said.
Eleven days had already passed since the original disclosures, and no catastrophes had occurred. Government concerns about potential national-security crises were nothing but speculation and surmise. The link between publication and consequences, Bickel argued, must be "direct and immediate and visible."
"Let us assume," Stewart said, "that when the members of the Court go back and open up this sealed record we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers. What should we do?"
Bickel assured him that nothing of the kind would be found. "I am as confident as I can be of anything
that Your Honor will not find that when you get back to your chambers," Bickel said.
If such evidence did appear, Stewart pressed, "you would say the Constitution requires that it be published, and that these men die, is that it?"
"No," Bickel responded, "I am afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort."
Unable to restrain himself any longer, Douglas broke into Bickel's argument. "Do you read [the First Amendment] to mean that Congress may make some laws abridging freedom of the press?"