The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers

Abstract

Great cases like hard cases, perhaps, still bad law, 1 but in the Supreme Court of the United States they often make almost no law at all. The Court divides sharply and even splinters; a majority is obtained for the judgment only on the narrowest grounds, and the result is explained and justified only in a most cryptic opinion. Individual Justices, more expansive in explaining their concurrence, justify it on grounds that do not commend themselves to their brethren and that would hardly govern any other case. And that which makes the case great or hard renders unlikely that another case will soon arise to invoke the Court's precedent. By any criteria, the case of the Pentagon Papers 2 must be deemed great or hard, or at least dramatic; surely, it represents some accident of immediate overwhelming interest which appeals to the feelings andsome will add-distorts the judgment. 3 Six Justices concurred in the judgment, and at least five of them4 joined a brief per curiam opinion. Each of the concurring Justices wrote separately, two pairs joining each other's opinion. Each of the three dissenting Justices wrote, and all of them joined in one of the dissents. Some things said by one or more Justices on one side commended themselves to one or more on the other.