On the surface, Hugo Black seemed like a natural ally. A pacifist at heart, Black had been against World War II until Pearl Harbor, against the Korean war throughout its duration, and against the Vietnam war from the start. He felt that the Court did not handle war issues very well. In World War II, the Justices had pretended that eight United States residents of German heritage had no constitutional guarantees when they were found guilty of attempted sabotage: six were executed while the Court looked the other way. The Court had ceded to the President and the military virtual autonomy in war-related matters. "You can't fight a war with the Courts in control," Black had said. He still defended his own
1944
opinion upholding the forced relocation of Japanese-Americans on the West Coast, but as the years passed, he did so with noticeably less enthusiasm.
Each night as he watched the news of the Vietnam war on television, his bitterness over the senseless slaughter grew. "A waste, a mistake," Black lamented. "We're going to pay a high price for that Big heroics today; wait until the death lists come in."
But Black wanted no part of the Massachusetts case. Whether one believed that Congress had meant to authorize the Vietnam war, or whether the President was conducting it on his own authority—either way in Black's view, the decision was a "political decision," to be made by another co-equal branch of government Traditionally, the Court did not meddle in matters of foreign policy, war powers, and national security. The Constitution had given the Congress the power to declare war and the President the power to conduct it. It gave the Court no role in that area.
If the war were to be attacked, Black said, it should be by Congress, not by the Court. And if he were still in the Senate, he would lead the charge. But he knew that even if the Court were to take up the war, at best only Douglas, Brennan, himself and perhaps Stewart would vote against it. Most assuredly, Burger, Harlan, and Blackmun would support the Nixon administration. White, a Kennedy protege^
and Marshall, a Johnson protege
had both, in Black's view, supported their former bosses' respective war policies with the rest of the hawks.
While Douglas did not agree with Black's logic for not wanting to hear the Massachusetts case, he understood it Douglas was far more aggrieved, however, over Brennan's position. Brennan felt that the Court could take up a "political question" like the war only if Congress explicitly opposed the war and the President continued to conduct it. As long as Congress failed to act, Brennan said, there was nothing the Court could do. Otherwise, the Court would end up dealing with moral rather than legal questions. Its credibility would be lost. This infuriated Douglas.
Seven years before, Douglas recalled, when Earl Warren had been on hand to give Brennan guidance and confidence, Brennan had been willing to bend the doctrine on political questions. Brennan had authored the first "one man, one vote" legislative reapportionment case
(Baker
v.
Carr),
when the Court addressed the question of who elects members of Congress and state legislatures—an issue previously thought to be "political." It irked Douglas that Brennan would not vote his conscience on the war now.
But while brooding over Brennan's stand, Douglas remained determined that the Court should take up the Massachusetts case. To his surprise, he picked up a third vote on the case from John Harlan.
Harlan was certainly no pacifist. He had fond memories of a camaraderie he had found while directing the Eighth Army strategic bombing group during World War II. But he thought this war was different. Something was seriously wrong, and it was wrong at the top. "What we need is some moral leadership from the White House," he observed, "and that won't come now."*
But beyond that, Harlan felt that the Court should at least hear arguments on whether
it
could decide such questions as the Massachusetts case posed. Douglas's point was that by not ruling on the constitutionality of the war, the Court, in effect, was sanctioning a new constitutional formulation: the President could make undeclared war as long as Congress gave him the funds. Harlan was unsure as to how he would vote on the ultimate question. But so far the Court had taken the position that individual taxpayers, draftees and soldiers had no standing from which to challenge the executive in a court case regarding the war. If a
* Always concerned that the slightest gesture or contact with the executive might be thought to imply endorsement, Harlan declined to vote in Presidential elections (or any others) and never applauded at the President's State of the Union address. In
1967,
Harlan refused to continue a tradition in which the Justices in top hats and tails annually paid their respects to the President at the White House at the opening of the Court's term. Johnson had continued to use then Justice Fortas as a principal adviser, calling him often on the red "hot line" in his office for help on the war. Fortas had even missed conference to attend White House meetings. Harlan persuaded the others to abandon the practice of calling on the President, lest Johnson try to use them to legitimize his war effort as well.
state did not have standing, Harlan mused, then who did? He voted to take the case.
Douglas's effort to bring the war before the Court stalled there. For a month, he put the case over from conference to conference. Finally conceding that the fourth vote was not coming, Douglas gave up. In November, he published a memo dissenting from the denial of cert.
Harlan's vote to hear the Massachusetts case was not
a
vote on the constitutionality of the war. He tended to give the benefit of the doubt to the men who, he presumed, still ran the national-security establishment. Many of the antiwar protest cases that filtered up to the Court involved civil disobedience. Like Black, Harlan had little sympathy for disruptive tactics.
One case
(Radich
v.
New York),
however, did bother Harlan. The proprietor of a midtown-Manhattan art gallery had been convicted of displaying American flags in
a
"lewd, vulgar and disrespectful way." The flags were thirteen impressionistic sculptures, each portraying the American flag as a penis. For Harlan, the sculpture was clearly protected by the First Amendment's guarantee of free speech. It was, he presumed, a protest against the war. Harlan suggested they take the case and overturn the conviction. To his surprise, no other Justice was interested in hearing it. Douglas had recused himself from the case, since the law firm that had defended him against impeachment was representing the art gallery's manager.
Harlan asked that the decision be put over a week so he could circulate a memorandum. He was not used to writing dissents from the denial of cert. It was not his style to air the Court's disagreements i
n public. But this was an excep
tional case. He had a clerk prepare a stern memo pointing out that it was "self evident" that the case was substantial. The ploy worked. Brennan, Stewart and Marshall joined him in granting cert.
But Harlan could see that it was a loser. There was no fifth vote. After oral argument, the vote was
4
to
4.
According to tradition in tie votes, the conviction would be affirmed without an opinion.
Harlan's view of the First Amendment was not always so expansive. Paul Cohen, a young antiwar protester, had been sentenced to thirty days in jail for disturbing the peace by wearing a jacket with the words "Fuck the Draft" inscribed on the back. Harlan termed this case
(Cohen
v.
California)
a "peewee."
When they had first granted cert on the case, Black had vehemently disagreed with Harlan. His interpretation of the First Amendment was literal: "Congress shall make no law
..
. abridging the freedom of speech."
"I read 'no law
...
abridging' to mean
no law abridging,"
he had stated emphatically in a
1959
opinion
(Smith
v.
California).
Black found the conviction of Cohen so outrageous that he insisted that the Court summarily reverse the conviction without even holding oral argument. Harlan's strong opposition prevented the summary reversal, and only reluctantly did he agree to have it argued.
Many clerks, however, saw the case as symbolically important. Sentiment against the Vietnam war was at its height. Many of the clerks opposed the war, and felt a little guilty that they had signed up for a year with an establishment institution like the Supreme Court. Most agreed with the sentiments on Cohen's jacket, and one way or another many had themselves avoided military service. In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken anti-war activist and actress Jane Fonda.
The antiwar movement was part of the clerks' culture, and its slogans part of their politics. The obscenities used to denounce Vietnam and the draft were important political expressions. Clearly, if the First Amendment protected speech of any kind, it protected political speech. Abrasive, outrageous expressions were sometimes called for. "Fuck the Draft" was hardly the most extreme. A decision against Cohen, in essence banning "Fuck the Draft" from the jackets and posters of the antiwar movement, could have deeper ramifications, some clerks believed. Police throughout the country were looking for grounds on which to curtail the activism unleashed by the war.
In Stewart's chamber, it looked to the clerks as if the Court was about to say that vulgar antiwar protests were not protected speech. Both flag sculptures and jacket slogans would be banned. The Court was desperately out of touch with the times. And, perhaps, with the Constitution. One of the clerks fashioned a makeshift patch combining the themes and put it on the back of his suit coat. "Fuck the Flag," it said. He wore it for several hours around the chambers before deciding that he did not want to test the Court's tolerance for political speech in its own building.
At oral argument on February
22,
the Chief attempted to signal Cohen's attorney to not use the vile slogan in the courtroom. ". . . You may proceed whenever you are ready," Burger said. ". . . the Court is thoroughly familiar with the factual setting of this case and it will not be necessary for you
...
to dwell on the facts."
But Cohen's lawyer, Melville B. Nimmer, acting on behalf of the A.C.L.U., thought that the case would be lost if he didn't say the word at least once. To not utter it would be conceding that the word was or should be unspeakable.
"At Mr. Chief Justice's suggestion," the lawyer responded, "I certainly will keep very brief the statement of facts . . . What this young man did was to walk through a courthouse corridor . . . wearing a jacket on which were inscribed the words 'Fuck the Draft.' "
The Chief's irritation was evident in his tone for the rest of oral argument. The Justices avoided using the word
fuck
in their questioning of the lawyers, referring instead to "that word."
The ritual that Harlan enjoyed most was sitting with his clerks on Thursday afternoons, reviewing the cases argued that week in preparation for the Friday conference. The afternoon of February
25,
the clerk he had assigned to the Fuck-the-Draft case reviewed the details at length, pointing out that according to Harlan's prior opinions, the slogan was clearly protected by the First Amendment. Cohen's conviction was for the content of the message on his jacket, for his opposition to the war, and not for some disruptive conduct.
For Harlan, and for all of his colleagues except Douglas and Black, there were exceptions to what was protected speech under the First Amendment. The clerk went down the list to assure Harlan that none was involved.
Did the words advocate an insurrectionary act—the overthrow of the government or interference with the draft? No, they merely conveyed Cohen's view of the war and of the draft.
Did the words immediately endanger observers—like shouting "Fire!" in a crowded theater? No, of course not.
Did the words incite a noisy disruption? No, the only one in the courthouse apparently bothered by them was the arresting officer.
Did the words provoke a violent reaction from observers, so-called "fighting words"? No, again only the arresting officer seemed concerned. He had tried and failed to get the judge to hold Cohen in contempt.
Were the words "offensive" to unconsenting viewers? This was the most difficult problem for Harlan. Some passersby in the corridor might have been offended. But they could have limited their exposure by moving away, the clerk argued. The only captive audience would have been the one in the courtroom where Cohen appeared, but there he folded his coat over his arm, so that the spectators were not exposed. Moreover, the clerk reasoned, a certain amount of "offensive" exposure had to be expected in public.
Were the words themselves "obscene"? Certainly the use Cohen had made of the word
fuck
was not meant to be erotic, or to appeal to "prurient" interests. It did not depict explicit sexual activity. Surely, the state of California could not purge the word from public discourse.