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 case 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-on
e items—some entire volumes—be l
isted.
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. Mi
tchell had replied that if Gris
wold 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 Gris
wold'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?"
"No, sir," Bickel answered. "Only in that I have conceded, for purpose of this argument, that some limitations, some impairment of the absoluteness of that prohibition is possible—"
"That is a very strange argument for the
Times
to be making," Douglas snapped.
Argument ended at noon. As the Justices returned to the robing room, Stewart insisted that instead of proceeding to lunch they should each immediately read the record. They should waste no time in voting. The prior-restraint issue called for an immediate decision.
Harlan disagreed. First, the case had been allowed to sail through the lower courts with insufficient time to render a considered judgment Now Stewart was recommending that they rush even faster. But the others agreed with Stewart They would read the record and reconvene that afternoon.
As the Justices returned to their chambers, Black echoed Douglas's amazement over the unexpected stand taken by Bickel. "Too bad the
New York Times
couldn't find someone who believes in the First Amendment," he said.