Supreme Court Rulings

Quick note; my last post was my 400th.  As I glance through the titles and topics of these efforts, I am struck by the variety, by the persistence in continuing to blog despite the lack of exposure, by the idea that there may come a time when the inspiration falters, and by the fear that I won't make 500 for lack of topics to comment upon countered by the equally strong concern that I have only reached the tip of the iceberg in terms of discussing the events of our time which will create lasting ramifications for the future.

Anywho, I watched the movie The Post a few days ago.  Very compelling story, even though the ending was well known.  Interesting portrayal of Katherine Graham by Meryl Streep, and of Ben Bradlee by Tom Hanks.  As we most frequently do when thinking about historic figures, there is often a loss of humanity, by which I mean we forget these people were human; flawed, insecure, perhaps even unaware of the importance of what they were doing in regards to history.  Streep's portrayal presented Graham as almost a victim of the times, a woman in a man's world where the men were all too aware of that fact, assuming she could not (or should not) be in such a high level position, but also illustrating Graham's own belief that those chauvinistic assumptions were her's as well, at least at first.   Hanks' portrayal of Bradlee however, seemed to indicate that he knew full well the importance of what they were trying to do and had no doubts that they were doing the right thing.

Another interesting aspect of the movie was the depiction of how much the profit motive was part of the argument against publication of the Pentagon Papers.  There is often talk today about how the journalism of the past was unaffected by the need to generate revenue.  That those who ran the big newspapers of the day assumed a loss, but placed their respect for the importance of a strong 4th estate above money.  This movie presents a stark contrast to that assumption as Graham faced a very real effort by the lawyers and bankers who represented the investors, to convince her to delay or refuse to publish as they feared a decision against the papers by the Supreme Court, a vindictive Nixon who might use his power to hurt the paper, and/or a public response that might deem the decision to publish classified documents as anti-American, which, by themselves or in concert, could render the paper bankrupt.

That being said, I spent the next hour or two after the movie ended, researching the Supreme Court justices who rendered the decision, against the United States Government, in favor of both the Post and New York Times, in support of their right to publish those documents.  It doesn't seem that hard to imagine a near future Supreme Court case which might pit either of these news organizations against the current Administration.

So, who were the nine justices and, perhaps just as important, who appointed them.

The decision supporting publication was 6-3.  Those who ruled against publication were Justices Burger (who was Chief Justice) Blackmun and Harlan.  Burger and Blackmun were the most recent appointments, selected by President Nixon in his first term in office.  One might have pause to apply their ruling in favor of the effort by the Nixon Administration to suppress publication of the Papers to the apprehension that the recently appointed Judge Kavanaugh might demonstrate similar loyalty should a decision concerning President Trump come to the Supreme Court.  Justice Harlan, the third justice to rule against publication was an Eisenhower appointee.  In their briefs, all three justices indicated that they believed deferment to the executive branch in regards to the classification of sensitive data must be respected and defended.

Of the six who ruled for the newspapers, there appears to be two different reasons for reaching the same conclusion.  The first group, three of the six, were said to be absolutists in their belief that the First Amendment, the guarantee of free speech, was sacrosanct.  No exceptions.  Those three were Justices Marshall, Douglas and Black.  Justice Marshall was appointed by LBJ.  Both Douglas and Black were appointed by, get ready for it, FDR.  Each had over 30 years on the Court, 2 of the 14 justices (out of 114 total) in history who served over 30 years.

Of the other group of three, Justices White, Stewart and Brennan (two of which, White and Brennan eventually became members of the 30+ years served club), one was appointed by Kennedy, two by Eisenhower.  They believed that only in extreme circumstances should there be restrictions to the First Amendment, and it was their opinion that the Pentagon papers did not meet the heavy burden of that requirement.  For more than a few of the Justices, they regarded the release of the Papers as more of an embarrassment to the current and three preceding Administrations, less as an act which damaged the government's ability to keep secret that which must be kept secret, or put American soldiers in harm's way.  (Quick history lesson; the Pentagon Papers revealed that American governments under Eisenhower, Kennedy, Johnson and Nixon, repeatedly and knowingly lied to the Congress and the American people about the details and actions being taken during the Vietnam War.)

So, for those keeping score, appointments made by GOP Presidents voted 2-3 for restricting the release of the Papers, those appointed by Dems voted 4-0.  Hmmm.
 
(By the way, of the current Supreme Court justices, 5 were appointed by GOP presidents, 1 by George HW Bush, two by George W Bush, 2 by Trump while 4 were Dem appointees, two each by Clinton and Obama.  Further, while Ruth Bader Ginsberg is the oldest of the current Justices, Clarence Thomas is the longest served).

The Post, and my subsequent research on the Pentagon Papers, the follow-up historic events which led to the Post's famous journalists Woodward and Bernstein who revealed the involvement of President Nixon in authorizing, among other things, the break-in of the DNC headquarters at the Watergate Hotel and the attempts to obtain damaging information against Daniel Ellsberg (the inside source for the Pentagon Papers), and the revelations that Nixon used various government agencies as instruments for gaining knowledge about his "enemies", put in perspective the importance of that Supreme Court ruling.  Had the Court ruled to restrict First Amendment rights and hamper the press in its investigative duty, we might live in a different world today, especially in light of President Trump's "the press is the enemy of the people" rhetoric. 

It also underscores just how much power has been migrated to the Presidency, partly as the result of a squeamish Congress more worried about re-election that America, partly as a response to world shattering events which, to many, made FDR as much a dictator as any American President, and partly, perhaps, because of an electorate that prefers the easy answer of putting one person in charge, as opposed to the much harder demand that our elected officials work together despite our differences.

I am certainly not a fan of President Trump.  And I do believe that his philosophy of loyalty (to him) over the respect for law and our democracy is clearly in play.  But, when measured against the fact that part of our First Amendment rights hinged on a 6-3 count (why wasn't it 9-0?) in 1971, the prospect of a Supreme Court ruling that excuses the President from being indicted seems paltry.  We can still vote for someone else in 2020, but there is not as easy a mechanism for reversing a Supreme Court ruling restricting the First Amendment. 

My hope is that the overriding lesson of both The Post, the Pentagon Papers, and the founder's brainstorm of creating the three branches of government, is that we, the people, understand the age old maxim that absolute power corrupts absolutely (Lord Acton, a British historian of the late 19th, early 20th century).  We showed some signs of our understanding, or was it just frustration, when we voted to give control of the House to the Dems last Tuesday.  We need to continue to be watchdog and whistle blower when we hear anyone, politician or pundit, use phrases that demean either of the three branches, or the free press as representing the 4th branch of government.  There is no room in our democracy for phrases like judicial activism, fake news, enemy of the people, or unfit to govern, when used by one branch to attack the other.  Disagreement, of course, it is the only way to guarantee that all citizens are represented and their concerns and perspectives valued.  But when one branch works to delegitimize the others, our democracy is weakened.  On a weekend when we celebrated and honored those veterans, living or dead, who fought for our democracy, it would be very sad if we ignored the warning signs that might lead to a time when their sacrifice might have been in vain.