Regular readers know me as a severe critic of many "historical" films, such as Bridge of Spies, Selma, and The Birth of a Nation (by Nate Parker.) I was worried about The Post, the story of Ben Bradlee (Tom Hanks), Kay Graham (Meryl Streep), and their decision to continue publishing the Pentagon Papers after an injunction stopped the New York Times from doing so, but I was very pleasantly surprised. I knew Hanks wouldn't have the proper GI generation gravitas to play Bradlee, but he did much better than I expected. Streep had a difficult assignment too because Kay Graham simply did not project the strength of her personality (just search youtube if you want proof), but Streep didn't try to make her something that she was not. Some complained that the design of the movie slighted the more critical role of the New York Times (and of Daniel Ellsberg himself), but I didn't. What I really liked, however, was the ensemble cast, the production design, and the very sincere and successful attempt to recreate the atmosphere of 1971. The portrayal of the middle aged men of that generation was accurate, and we saw how they got the job done. Steven Spielberg has usually put a lot of thought and effort into historical films such as Schindler's List and Lncoln, and he did this time, too.
Having said all that, however, today I want to share with my readers what was, for me, the highlight of those tumultuous two weeks: the Supreme Court's decision to let publication go forward, and in particular, the opinion of Justice Hugo Black. Elected to the Senate from Alabama in 1926, replacing another distinguished, progressive southerner, Oscar W. Underwood. Although he was elected with the support of the KKK, Black rapidly emerged as a liberal on everything except race--a southern species that was quite common from the 1930s through the 1950s, until it was driven out of politics in the wake of the civil rights movement. In 1937, in the midst of the court packing crisis, Franklin Roosevelt appointed Black to the Supreme Court, and he was confirmed. Subsequent to his confirmation, the story of his membership in the KKK leaked, causing a sensation. Walter White, the Executive Secretary of the NAACP, declined to join the hue and cry over the news, telling all who would listen that Black was a real liberal who belonged on the court. His judgment was vindicated over the next 34 years.
Black was a liberal on a variety of legal issues, and he joined the unanimous majority in Brown V. Board of Education in 1954 and remained a strong supporter of civil rights thereafter. But his most moving opinions related to civil liberties, and especially to the First Amendment. During the Second World War, when the Congress added an amendment to an appropriations bill forbidding the payment of salaries to three left-wing New Dealers, Black wrote an opinion invalidating the decision. The Founders, he said, knew the dangers of legislative punishments from their study of English history, and had therefore outlawed Bills of Attainder--of which this was one. In the midst of the bitterest period of the Cold War and McCarthyism, Black also argued unsuccessfully that the Smith Act, which was used to convict the leaders of the Communist Party of the US of "conspiracy to advocate" overthrow of the government, was unconstitutional on its face. Later in the decade the court came much closer to his view. In the late 1960s Black did an hour long interview with Eric Sevareid of CBS, one which I regret to find is not available on youtube. Sevareid started the interview by asking Black if recent Supreme Court decisions had made it more difficult to convict criminals. "Of course they've made it harder to convict criminals!" he replied. "But look in the Constitution!" he added, pulling his pocket copy out. "A defendant must be provided counsel! You need a warrant for a search!" And so on. Black, in short, believed that the words of the Constitution, and particularly of the Bill of Rights, meant exactly what they said.
Black was 85 years old and his abilities were failing when the Pentagon Papers case reached the Supreme Court in the summer of 1971. He wrote a separate, concurring opinion providing for publication. It was by far the most moving of the opinions, as readers will see in a moment, and it remains one of my three or four favorite opinions from the whole history of the court. It was also his last opinion. Recognizing that his health was failing, he retired--one of two departures whose seats were filled by Lewis Powell and William Rehnquist. A few months later, he died.
Many years ago, a friend of mine named Tom Kerr, the head of the ACLU chapter in Pittsburgh and a fellow Carnegie Mellon faculty member, told me the story of Black's funeral, which he attended. Black knew, of course, that President Nixon and Attorney General John Mitchell, who had tried to stop the publication, would attend the ceremony. He left instructions that his last opinion be read in full to conclude the service. It was a fitting summary of his most important views and really of his life on the court, and he movingly concluded it with a bow to Charles Evans Hughes, the first Chief Justice under whom he had served. It put the publication of the Pentagon Papers, a turning point in our history, in the whole context of our history, and it did so in absolutely unforgettable language. This is a big week for History Unfolding. Sometime in the next few days--probably Sunday or Monday--this web page will receive its one millionth visit since I started writing this posts in the fall of 2004. This is a fitting text to mark that occasion. Here it is.