Spearman Address To N.C. College of Trial Lawyers

Article Date: Wednesday, April 21, 2010

COPYRIGHT © 2010    ROBERT W. SPEARMAN

CLERKING FOR MR. JUSTICE BLACK:
THE 1970-71 TERM AND THE PENTAGON PAPERS CASE

ROBERT W. SPEARMAN

(This piece is based on a speech delivered by the author to the North Carolina College of Trial Lawyers at its spring meeting in Asheville, North Carolina in April, 2010.)

 

Robert W. Spearman

Hugo Lafayette Black had a strikingly different background from most Supreme Court Justices, particularly the nine former federal appeals court judges serving now.  Unlike all current Justices, Black had no previous tenure as a federal judge.  Before his Court nomination, he had been a highly successful plaintiff’s lawyer, a local prosecutor, and the United States Senator from Alabama.

 

Justice Black was born in Clay County, Alabama in 1886, in the hill country east of Birmingham.  He never attended undergraduate college, but went to one year of medical school.  He then switched to Alabama Law School and graduated in two years with a straight A average.  He began practice in his home town of Ashland but soon moved to Birmingham where he developed a thriving personal injury and labor union practice.  In his first case in Birmingham he recovered damages for an African-American who had been held beyond his prescribed prison term under the State’s convict lease system. 

 

Hugo Black became a police court judge, then solicitor for Jefferson County.  He was elected to the U.S. Senate in 1926 and re-elected in 1932, when both he and FDR carried Alabama overwhelmingly.  In the Senate, Black enthusiastically supported the New Deal and was principal sponsor of the Fair Labor Standards Act.  He was appointed to the U.S. Supreme Court in 1937 as Roosevelt’s first nominee.  He served 34 years until 1971.  Black replaced Justice Willis Van Devanter, a conservative Justice who had frequently voted to declare New Deal legislation unconstitutional.  It would be fair to say that Hugo Black did not share Van Devanter’s views on the constitutionality or the efficacy of the New Deal. 

 

When he joined the Court, many still referred to Black as “Senator” but he soon became known as “the Judge” or “Judge,” both to friends and to succeeding generations of law clerks.  I clerked for the Judge in his last year, 1970-71.  Significant matters that term included Swann v. Charlotte Mecklenburg; the 18 year-old vote case (Oregon v. Mitchell); and the Pentagon Papers case.  Other Justices then on the Court were William Douglas, William Brennan, Thurgood Marshall, Byron White, John Marshall Harlan, Potter Stewart, Chief Justice Warren Burger (who had assumed that office just a year before), and a new Justice who had joined the Court in June 1970, Harry Blackmun.  Richard Nixon was President.

 

Justice Black’s office staff was small.  Bob McCaw from Virginia and I began the term as his two clerks.  Frances Lamb was his secretary and Spencer Campbell his driver, messenger, and organizer and tracker of cert petitions.  Shortly after the term began, Chief Justice Burger suggested the Judge take on an additional clerk, my fellow UNC alumnus John Harmon.  The Chief Justice had obtained a Congressional appropriation for extra positions, and he offered a new clerk to each Justice.  The Judge was wary, suspecting the Chief really intended to plant spies in each Justice’s chambers and expand his control over the Court’s workings.  Bob McCaw and I persuaded the Judge to at least have lunch with John.  After that brief interview, the Judge quickly concluded John was a solid southern boy, and he joined us as a clerk as well.

 

By 1970, the Judge’s constitutional philosophy was so well-established that our tasks as clerks differed from those in other chambers.  We each had 70 to 80 cert petitions to review and prepare memos about each week.  But our memos analyzing the petitions’ merits were often succinct.  I remember I drafted one in an obscenity case, stating: “The petitioner was convicted for selling an obscene magazine; I suggest you grant cert and reverse the conviction.”  The Judge thought this approach dealt with the case sufficiently, and he needed no more detailed analysis.

 

The Judge was not interested in our laboring to prepare long bench memos, so we spent our time on cert memos and working on his opinions on behalf of the Court, his concurrences and his dissents.  Usually one clerk or the Judge would do an initial opinion draft, and the others would review and edit.  A frequent and pleasant task involved assisting on dissents from denials of cert in personal injury cases where district judges had set aside jury verdicts, often under the Federal Employers Liability Act.  As a former plaintiff’s lawyer, the Judge considered such lower court judicial activism improper; often he argued it violated the Seventh Amendment.

 

The Judge was friendly with his clerks.  He had us to suppers and parties at his Alexandria home, and sometimes brought us figs his wife Elizabeth had picked in their yard. The Judge had suffered a stroke while playing tennis in 1969, and in 1970-71 his health was not consistently good.  His memory ebbed and flowed, but it was remarkable to me that he often remembered clearly fact patterns of cases decided in the 1930s, even when he’d forgotten case names of key precedents.

 

By 1970 the Judge very rarely lobbied other Justices in order to promote his own views.  For example, he did not push for the Court to reach consensus on the 18 year-old vote case.  His unusual view -- that it was constitutionally permissible for Congress to authorize 18 year-olds to vote in federal elections, but not in state elections -- became the law of the land when the other members of the Court split 4 - 4 on the breadth of Congressional power over elections.  (A constitutional amendment was soon passed so that 18 year-olds could vote in all elections.)

 

The Judge always carried a small copy of the Constitution in his pocket.  He pulled it out frequently to argue with Bob, John or me on what the Constitution required.  Often he reminded us that the Fourth Amendment provided protection only against “unreasonable searches and seizures.”

 

Above almost all his other loyalties, the Judge was a Democrat.  Once when invited to the White House for a State dinner, he wanted to avoid the event because the host was a Republican President for whom he had little regard, but Elizabeth very much wanted to attend.  The Judge finally told me he had solved the problem; he’d told Elizabeth that going to the dinner would present just too grave a threat to the separation of powers.

 

The Judge’s decisions in the 1950s and 1960s holding segregation laws unconstitutional had lowered his status with Alabama lawyers and other Southern friends.  His attorney son, Hugo Jr., had begun practice in Birmingham after law school, but had been frequently harassed there and subjected to threatening phone calls.  He finally left Alabama in 1962 to practice in Miami.  When introducing his father in later years, Hugo Jr. sometimes made light of his father’s altered status in Alabama, saying that when he first went on the Court some saw him “as a man who had worn a white robe to scare black people but later he wore a black robe and scared white people.”  By 1970, the tide had begun to turn somewhat within the Alabama Bar, and many more in the State had begun to admire, or at least respect, the Judge.  I recall that in the middle of the 1970 term he accepted an invitation to deliver a speech in Alabama.  He left Washington after sticking his head in his clerks’ office, smiling and saying, “it’s not always been this way lately, but this will be fun; I’m off to Alabama with my banjo on my knee.”

 

As the Court’s senior member, the Judge’s relationships with other Justices were fascinating.  He was especially fond of Justice Harlan, who was his distant relative.  He once said that John Harlan was “one of the few people who could convince me there is such a thing as a good Republican.”

 

The Judge had correct but formal relations with Chief Justice Burger.  It soon became clear to us that he considered Earl Warren to be still the real “Chief.”  The Judge referred to Chief Justice Burger not as “Chief Justice” or “the Chief” but simply as “Burger.”  Chief Justice Burger appeared to enjoy administrative and ceremonial duties more than legal analysis, and this did not endear him to the Judge.  To the surprise and delight of all in our chambers, Justice Burger once circulated a draft “concurring” opinion in one hotly contested case, in which he joined both Justice Black’s opinion for the Court and Justice Blackmun’s dissent.

 

Justice William O. Douglas was Justice Black’s oldest friend on the Court.  The two had first met when the Judge was a Senator and Douglas was working on proposed New Deal reforms at the Securities and Exchange Commission.  Especially in the 1940s and 1950s the two had been the stalwarts of the progressive wing of the Court.  Justice Douglas sometimes described himself as ideologically closer to Justice Black than to any other Justice.  Their views were similar on the First Amendment, the necessity of applying the Bill of Rights protections to the States, and the duty of the Court to defer to Congress on economic regulatory issues.  But the two had disagreed sharply in Griswold v. Connecticut, and the Judge often asked us rhetorically, “…now just how do you all think Bill could have come up with those penumbras?”

 

During the term, the Court struggled several times with applying the First Amendment to obscenity issues, and on these matters Justices Black and Douglas had precisely the same perspective.  The First Amendment was an absolute, absolutely protecting all books, movies and photographs.

 

Once I worked with the Judge on a dissent in U.S. v. Thirty-Seven Photographs, a case in which the Court’s majority approved seizure of pornographic pictures at customs offices.  Only Justice Douglas joined our draft dissent, which stated that “the First Amendment denies Congress the power to act as censor and determine what books our citizens may read and what pictures they may watch.”  I was delighted when our dissent came back from Douglas’ chambers with his handwritten scrawl in the margin, “Hugo, this is excellent, I join.”

 

Another First Amendment case that year involved the supposedly obscene film, “I am Curious (Yellow).”  Because there was a contention that the film might have been illegally seized, the case involved both First and Fourth Amendment issues.  A majority concluded that it could not be resolved without actually watching the movie, perhaps following Justice Stewart’s view that he “knew obscenity when he saw it.”  A private special showing was scheduled for the Court’s basement.  Somehow we persuaded the Judge that his clerks really needed to attend so we could report on the other Justices’ reactions.

 

As the screening began, Justice Harlan tried to compensate for weak eyesight by sitting two feet from the screen.  Repeatedly he asked, “what’s happening now?”  Another Justice told him a couple appeared to be having sex in a tree.  Justice Harlan then slid his chair forward and squinted more intently. Justice Marshall took a more relaxed pose, leaning against a back wall, smoking a large cigar.  As the sex in the tree scenes appeared on the screen, he took another puff and declared, “It’s clear to me we’ll have to decide this case based on the Fourth Amendment, not the First.”

 

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The Judge and Justice Douglas differed in personality.  Douglas was often irascible with clerks and staff.  Once during the term Douglas fired both his clerks and told them to go home.  When they didn’t appear at the office the next day, he called their houses and threatened to fire them again for not showing up for work.  The Judge sometimes attributed Douglas’ eccentricities to his succeeding marriages, maintaining: “Bill just should not have divorced his lovely wife, Mildred.”  Despite ideological and personal differences, the Judge’s relationship with Douglas remained close and admiring.  In 1969, the Nixon administration and the House Republicans had told Hugo Jr. about a possible impeachment effort against Douglas based on his lifestyle and his authoring articles for Playboy.  While the Court was listening to an oral argument, the Judge sent a note across the bench to Douglas.  It read “Dear Bill, if they try to impeach you, I’ll resign and be your lawyer.  I have one more hard trial left in me.  Hugo.”

 

1970 was Justice Blackmun’s first year on the Court.  He and the Judge were not close friends.  The Judge viewed Blackmun as forming with Chief Justice Burger a pair of “Minnesota Twins” who usually voted together.  In a luncheon involving clerks from different chambers that year, Justice Blackmun told us he felt that “it’s just a terribly hard job to decide all these difficult cases.”  I later mentioned that remark to the Judge who shook his head and responded: “Blackmun won’t make it; he will worry himself so much he’ll be like Justice Whittaker and die or quit.” 

 

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The 1970-71 term’s high point came at its end in a short, fierce legal battle that lasted only 16 days from the filing of a Government complaint against the New York Times.  On June 13, 1971, the Times began printing excerpts from 47 volumes of a Defense Department history on the U.S. involvement in Vietnam.  The Judge first mentioned this development to his clerks a couple of days later, “[y]ou know I am never too fond of injunctions against newspapers.  We better keep a close eye on this one.” 

 

The Second Circuit soon enjoined publication by the Times, but the DC Circuit ruled for the Washington Post, which had also started to publish the same papers.  The Supreme Court quickly granted cert.  The case was like a shot of adrenalin for the Judge.  Many of his experiences and views pulled him the same way -- his dislike of the Vietnam war, the need for protection of the press by the First Amendment, and a new alliance with Justice Douglas.  There also was the possibility that the Democrats might win, the Republicans lose, and President Nixon suffer a serious defeat. 

 

The Judge believed from the beginning that Justices Douglas, Marshall and Brennan would join him to defend the First Amendment and the press.  But he told us: “I don’t know what some of the Republicans will do.  It might just come down to Potter [Stewart].”

 

Shortly after the Court granted cert on this new matter, I received a letter from the North Carolina Bar stating I could not take the bar exam in August unless I met its new requirement to be “physically present in the State for over 60 days” prior to the exam.  The Bar apparently resented recent federal court decisions striking down durational residency requirements and had adopted the new rule in retaliation.  I told the Judge about my problem.  He immediately dispatched a letter to the Bar saying that due to an unexpected new matter, my services would likely be needed for several more weeks.  The Bar quickly granted me a waiver, and I was able to stay until the term’s end.

 

As the case moved forward, a set of the Pentagon Papers were deposited with the Court and Justices, other than Black, reviewed portions of them.  Security measures were intensified.  The Government’s brief was delayed when Justice Department lawyers discovered the secretary typing it did not have a proper security clearance.

 

Oral argument was held on June 26, 1971.  Professor Alexander Bickel, who had been my constitutional law professor at Yale, argued for the New York Times.  The Judge thought that Bickel’s argument was not a sufficiently vigorous defense of a free press, and complained that the Times had not found a lawyer who really believed in the First Amendment.

 

Solicitor General Erwin Griswold fenced with the Judge during oral argument:

 

GRISWOLD:  Now, Mr. Justice Black, your construction of [the First Amendment] is well known, and I certainly respect it.  You say that “no law” means “no law,” and that should be obvious.

BLACK:  I rather thought that.

GRISWOLD:  And I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that is true.

 

Justice Black smiled, enjoying Griswold’s descent into a deep hole.

 

The Justices held a conference to decide the case immediately after oral argument.  After several hours the Judge returned, thrust his head into our clerks’ office and reported:  “It’s been decided.  But Burger has told us we can’t tell clerks anything about what happened or how people voted.”  He then paused, winked and added, “but I think you’re going to be very pleased with the result.” 

 

The vote had been 6 to 3 for the press: Black, Douglas, Brennan, Marshall and finally, after some uncertainty, Stewart and White as well.  A short per curiam opinion, authored by Justice Brennan, had been agreed on, stating simply that the government had failed to present evidence overcoming the presumption that prior restraints on the press were unconstitutional. 

 

We then went to work with the Judge on what, happily, would be a concurrence to the brief per curiam.  We drove to his house in Alexandria on consecutive early mornings where the Judge gave us a tutorial on the country’s legal history.  [“What did this Constitution lack when it was first ratified?  It was missing its most critical element, the First Amendment.”]  Under his guidance, we worked on writing, rewriting and polishing the concurrence that was to be his last opinion.  Justice Douglas subsequently joined the Judge’s concurrence.  The Judge also joined that of Justice Douglas, but only after Douglas agreed to remove his assertion that the Vietnam War was unconstitutional.

 

On June 30, 1971, Chief Justice Burger announced the result from the bench.  Under customary Court practice, that honor should have gone to Black, the senior Justice in the majority.  As the Judge’s clerks, we resented this slight.  But the Judge appeared almost serene on the bench, simply taking great pleasure that the battle had been won. 

 

The Judge’s retirement and his death came soon after.  In the summer of 1971 after the Pentagon Papers case came down, he weakened rapidly.  He was in and out of the hospital over the summer.  Toward its end, he signed an undated letter of resignation.  He entered the Bethesda Naval Hospital.  Justice Harlan, who had cancer and was also fading fast, was in the room next door.  The Judge retired from the Court on September 17, 1971.  He went into a coma almost immediately and died on September 25. 

 

His funeral service was held in Washington Cathedral, with readings from Corinthians, Aeschylus, Cicero, and excerpts of his opinions, including the 1940 coerced confession case, Chambers v. Florida.  One reading chosen for the funeral by Hugo Jr. was from his father’s Pentagon Papers opinion.  Excerpts from it and from Chambers also appear on plaques mounted on stone tablets at the Hugo L. Black federal courthouse built in Birmingham in 1988, dedicated to the Judge.

 

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.  The press was to serve the governed, not the governors.  The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.  The press was protected so that it could bare the secrets of government and inform the people.  Only a free and unrestrained press can effectively expose deception in government.  And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.  In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly.  In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

 

New York Times Co. v. United States, 403 U.S. 713, 717 (Mr. Justice Black concurring).