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United States Supreme Court
During the long course of the Cold War, the powers of the president that derived from his unshared
responsibilities for national security and his leadership in foreign relations increased markedly. Congress
attempted to limit this growth, and this conflict between a Democratic congressional majority and a normally
Republican executive became the basis of a continuing political debate. Republican lawmakers strove to
increase the powers and privileges of the executive, while Democrats fought equally vigorously to limit
or curtail them.
The so-called Pentagon Papers case was one incident in this struggle. Before leaving his employment in
the Pentagon, a Department of Defense employee named Daniel Ellsberg had copied a mass of documents concerning
the war in Vietnam that had been classified as Secret and Top Secret. The documents contained information
that tended to support the conviction of many that the war had been badly mismanaged and that the Executive
Branch had deliberately misled Congress and the public as to the actual state of affairs. These papers
passed from Ellsberg to The New York Times, and the editors of that newspaper began analyzing the
material preparatory to publishing it. When this became known to government officials, the Executive Branch
asked the federal court to issue an injunction against the publication of this information, contending
that disclosure would endanger national security and compromise the president’s ability to formulate and
carry out foreign policy.
The case quickly reached the United States Supreme Court, where it was regarded with the seriousness it
deserved. The Executive Branch of the government was attempting to obtain prior restraint. Lacking a basis
in law for such a procedure, it was asking the court to use its injunctive power enforced by its power
to imprison or fine for contempt of court in order to create a legal basis for government censorship where
no such basis had existed before. By a six-to-three majority, the court refused to serve that function.
Although their reasoning differed, the majority of the justices clearly saw the position of the Executive
Branch in the matter as a threat to First Amendment rights of free speech, as well as an attempt to use
the court to gain power that the Legislative Branch had refused to grant it.
This case, like many that reach the Supreme Court concerning "national security" or "free
speech" issues, divided the justices along different lines than in criminal rights cases. The reasoning
of each justice is based on his interpretation of the Constitution, prior cases and his own life experience,
which is different for every person. Keeping this in mind, what was the basis for Justice William J. Brennan’s
concurrence? What reason did Justice Potter Stewart use in his decision? What was Justice Byron White’s
reasoning? How about that of Justice Thurgood Marshall? The same divisions apply for those justices dissenting
in the case. What reasons did Chief Justice Warren Burger give for dissenting? On what grounds did Justices
John Harlan and Harry Blackmun dissent from the majority opinion?
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