No. 3: The Supreme Court’s About- Face in Greer v. Spock

Dr. Benjamin M. Spock, a best-selling author on child rearing and a social and political activist.

No. 3

The Supreme Court’s About-Face in Greer v. Spock

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By Lieutenant Colonel (Ret.) Andrew J. Smith

For military practitioners, the Supreme Court case of Greer v. Spock has become an important decision, standing for the proposition that installation commanders have inherent authority to limit certain types of speech that occurs on military installations because “the business of military installations [is] to train soldiers, not to provide a public forum.”1 Greer v. Spock reinforces commanders’ broad authority to prohibit political campaigning on military installations and reaffirms commanders’ power to require individuals to seek pre-approval before distributing leaflets on post. Since the military banned all partisan campaigning, and the leaflets at issue were not prohibited due to their content but rather for failing to seek prior approval, the case itself purported to be “content neutral.”2 While seemingly uncontroversial today, the story behind Greer v. Spock reveals a heated battle between diverse groups of colorful characters from both ends of the political spectrum.

The story behind Greer v. Spock is about a war of ideas fought between counter-cultural activists on one side and proponents of traditional military authority on the other. The story also demonstrates the Supreme Court’s great indecision in applying First Amendment precedent in the military context. The Court’s uncertainty resulted in the Court publishing seemingly contradictory holdings in two remarkably similar cases within a mere four years. The Court’s unexplained “about-face” on the issue may be evidence of a conservative counter-reformation that occurred with the ascent of Chief Justice Rehnquist.

To understand the significance of the story behind Greer v. Spock, readers must understand the cultural context of the times. Beginning in the 1960s, elements of the so-called “counter-culture” began assailing traditional elements of American life, challenging everything from traditional notions of morality and sexuality to organized religion, race relations, and education.3 One activist explained, “We questioned everything and everybody, accepted nothing—capitalism, racism, sexism, electoral politics, the plight of the poorest among us, food, music, clothes, sex.”4 Perhaps no topic galvanized the counter-culture movement more, though, than the war in Vietnam.5 The Vietnam War has been called “America’s second Civil War.”6 Anti-war activists clamored to bring their message directly to the men and women who were training to fight in the unpopular war. By 1972, activists had successfully litigated their way onto various military posts, to include posts in Texas (Fort Sam Houston)7 and Rhode Island (Quonset Point Naval Air Station).8 It was in this charged political environment that Fort Dix, a relatively small Army training installation of just fifty-five square miles in rural New Jersey, became ground zero in the battle between anti-war activists and military authority. At the center of the fray stood an unlikely figure—Dr. Benjamin Spock.9

Presidential Candidate for the People’s Party: Dr. Spock

Dr. Spock is perhaps most famous for his child-rearing publication, The Common Sense Book of Baby and Child Care (later simply referred to as Baby and Child Care).10 His number-one rule of parenting was: “Trust yourself. You know more than you think you do.”11 The first edition was published in 1946 and was an instant bestseller, selling 500,000 copies in its first six months. Currently in its ninth printing, the book has sold over 50 million copies and is considered to be the second-best-selling work in the twentieth century, behind only the Bible.12

Born on 2 May 1903 in New Haven, Connecticut, Benjamin McLane Spock did not fit the stereotype of an anti-war radical.13 His father, Benjamin Ives Spock, was a conservative railroad lawyer, and his mother, Mildred Louise Stoughton Spock, was a stern disciplinarian.14 He grew to be a lanky, six-foot-four-inches tall, natural athlete.15 As an English major at Yale College, he was a member of the college rowing squad that won a gold medal in the 1924 Olympics in Paris.16 With the Olympics conquered, Dr. Spock attended Yale Medical School and later transferred to Columbia University’s College, earning his M.D. in 1929.17 After his medical residency in New York, Dr. Spock became a resident in psychiatry at New York Hospital.18 In 1943, Dr. Spock first began writing Baby and Child Care.19

Although he would eventually become a rabid anti-war advocate, Dr. Spock joined the Navy as a young doctor during World War II in 1944. At that time, Dr. Spock held more conservative views and even supported the United Nations’ intervention in the Korean conflict.20 While serving in the Navy, Dr. Spock continued writing Baby and Child Care during his off hours as a military psychiatrist in military hospitals in New York and California.21 In 1946, Lieutenant Commander Spock left the Navy and returned to his private medical practice with the manuscript of Baby and Child ready for publication.22

Although Baby and Child Care made Dr. Spock a millionaire, he continued practicing medicine and lecturing on pediatrics.23 In the 1960s, he began feeling troubled with the rise of nuclear weapons and the expanding war in Vietnam.24 He started protesting against the war—reluctantly at first, stating, “I felt acutely self-conscious and ridiculous.”25 However, as the war dragged on, Dr. Spock became “one of this country’s most vociferous opponents of the exercise of military power.”26 The success of Dr. Spock’s child-rearing books, coupled with his anti-war activities, led some commentators to argue that Dr. Spock was the “cradle guru of the hippies and the flower children because of his ‘permissive writings.’”27 Dr. Spock always rejected the claims that his writings were “permissive” or that he spawned the counter culture. “I’m not responsible for all those brats,” he would say, laughing.28

Before the Supreme Court case that bore his name, Dr. Spock was a defendant in a trial that is commonly referred to as “The Trial of Dr. Spock.”29 The 1968 trial was the first major anti-Vietnam War prosecution and was “widely regarded as a national disgrace.”30 In that criminal trial, Dr. Spock was charged with conspiracy to violate the Selective Service Act with Reverend William Sloane Coffin, Jr., and three other individuals—collectively referred to as the “Boston Five.”31 The government’s prosecution seemed to have been launched primarily to chill the anti-war movement.32 The government went so far as to argue at trial that even those who applauded during one of Dr. Spock’s speeches—which advocated violation of the Selective Service Act—could be considered part of the conspiracy; this led Dr. Spock’s well-known criminal attorney, Leonard Boudin to quip, “I didn’t know applause was a crime.”33 Despite claims of governmental overreaching, Dr. Spock was convicted and sentenced to two years in prison.34 On 11 July 1969, however, the Court of Appeals overturned Dr. Spock’s conviction.35 With his name thus cleared, Dr. Spock was free to begin his run at the 1972 presidency. He chose Julius Hobson, Sr., as his running mate.

By all outward appearances, Julius Hobson, Sr., seemed like the ideal running mate for Dr. Spock. Hobson was a well-known Washington, D.C., city councilman who sought statehood for the district.36 Hobson was also a committed Marxist who was considered to be an “angry” activist who was fond of saying that he even “slept mad.”37 In his obituary in 1977, the Washington Post described him as “a maverick, an egomaniac, a gadfly, a hero.”38 Despite his impeccable activist resumé, and counter-culture credentials, Hobson had a secret. While by all accounts he was a fully committed activist, it was discovered after his death that he was actually a Federal Bureau Investigator (FBI) “confidential source.”39 The FBI paid Hobson on several occasions to provide information on upcoming street demonstrations and on revolutionary parties, like the Black Panthers.40 The FBI even paid Hobson to provide confidential information on Martin Luther King Jr.’s 1963 March on Washington and the 1964 Democratic National Convention in Atlantic City.41 While the FBI files revealed that Hobson was considered to be an “undependable leftist radical who should be left under surveillance,” his secret relationship with the FBI adds an element of intrigue to the story.42

The success of Dr. Spock’s child-rearing books, coupled with his anti-war activities, led some commentators to argue that Dr. Spock was the “cradle guru of the hippies and the flower children because of his ‘permissive writings’”

Presidential Candidate for the Socialist Workers Party: Linda Jenness

Like Dr. Spock, Linda Jenness was running for the presidency in 1972. Her run for the U.S. presidency was unusual in several respects. At the time of her candidacy, she was only the second woman to have ever run for the presidency.43 She was only thirty-one years old in 1972, making her constitutionally disqualified for the presidency because she had “not attained the age of thirty-five.”44 This inconvenient truth did not stop her from campaigning across the country.

Jenness’s politics were certainly not within the mainstream of America in 1972. As a member of the Socialist Workers Party, she held very extreme libertarian views, to include de-criminalizing all “victimless crimes” and “abolishing” the FBI.45 She believed that black and Hispanic communities should be responsible for establishing rules on heroin and narcotic use and distribution since these “oppressed nationalities” were the communities “most affected by them.”46 Not surprisingly, she shared Dr. Spock’s anti-war views, and the two routinely campaigned together, despite the fact that they were vying for the same job.47 Thus, with their respective running mates, both Dr. Spock and Linda Jenness sought access to Fort Dix in 1972 to hold a joint campaign rally.

Andrew Pulley was Linda Jenness’s running mate on the Socialist Workers Party, but he was certainly not a traditional vice-presidential candidate. Born on 5 May 1951, he was only twenty years old in 1972. Thus, like Jenness, Pulley was constitutionally ineligible to be vice president.48 Although young, Pulley was no stranger to controversy. He was a former Soldier and Vietnam veteran who went to jail in 1969 for “attempting to organize [general infantrymen] G.I.s at Fort Jackson, S.C.”49 He was part of the so-called “Jackson 8” who faced court-martial charges stemming from their anti-war speeches on post.50 Pulley alleged that the charges were racially motivated since he was African-American.51 However, Pulley did make several statements in 1969 at an anti-Vietnam War conference that were inflammatory, to say the least, such as, “[T]he first thing to be done was to get the G.I.s to demonstrate peacefully, and the ideal thing would be for them to take up their guns and shoot their officers.”52 On another occasion Pulley said that “G.I.s are not ready to take up arms against their officers or to overthrow capitalism, although this is the long-term perspective.”53 As a member of the Socialists, Pulley advocated for the abolition of capitalism, perhaps using revolutionary—and even violent—methods.54 Pulley would, ultimately, run for the presidency for the Socialist Workers Party in 1980 and receive approximately 6,000 votes, even though he was only twenty-nine years old by that time.55

The Trespassing Pamphleteers

Along with the campaigners, there was a second, less prominent, group in Greer v. Spock who sought access to Fort Dix. John Ginaven, Donald Misch, Alan Hardy, and Robert Stanton were all members of anti-Vietnam War groups.56 Specifically, they were all members of the Central Committee of Conscientious Objectors (CCCO) and were committed to reaching Soldiers to convince them to become conscientious objectors—and thus ineligible for military service—pursuant to Army Regulation 600-43 (31 July 1970).57 These anti-war activists had been trespassing on Fort Dix for several years distributing literature, and Robert Stanton had been distributing anti-war pamphlets as early as 1968.58 Ultimately, all four were “apprehended, evicted, and given notice that they were barred from the base.”59 These barred pamphleteers joined Dr. Spock in claiming that the First Amendment protected their anti-war leaflet distribution activities.

Fort Dix Commanding Generals: General B.A.D. and General Greer

Major General Bert Alison David—who was the commander of Fort Dix in 1972—was, in many ways, Dr. Spock’s polar opposite. It would be hard to imagine someone who more embodied the spirit of the traditional Army establishment than General David. He was born on the Fourth of July in 1924 in Lehighton, Pennsylvania.60 He graduated West Point in 1946, commissioned as a second lieutenant in the infantry, and married his high-school sweetheart, Shirley Fagan, in a military wedding.61 He then served in the Army for over thirty years until he retired on 31 August 1977.62 During his Army career, General David had assignments in Japan, Korea, Germany, Vietnam, Washington, D.C., and, of course, Fort Dix.63 He was a veteran of the Korean War and was a brigade commander in Vietnam.64 He received his master’s degree in Business Administration from George Washington University.65 General David and Shirley had four sons, all of whom joined the Army as officers.66 General David was known as a strict, but well-respected, officer.67 His nickname was “General B.A.D.” due to the initials of his name.68 General David assumed his role as the Commanding General of Fort Dix in May 1972.69

General David was replaced as the Commanding General of Fort Dix by Major General Thomas U. Greer, who would go on to become the named party in Greer v. Spock, in February 1974.70 General Greer was born in Colon, Panama, in 1928.71 Like General David, General Greer was a graduate of West Point, class of 1950, and was commissioned as an infantry second lieutenant.72 He was a battalion commander in Vietnam and earned both a Bronze and a Silver Star Medal during his combat tours.73

The Initial Denial

In early September 1972, Dr. Spock called David Kairys, a prominent civil rights attorney from Philadelphia, and said, “This is Ben Spock . . . I’ve got a free speech case, and I need a lawyer.”74 Dr. Spock told Kairys that he was “particularly concerned about these young men going off to fight a war that has no legitimate purpose” and wanted to “talk to them” directly at Fort Dix.75 After recovering from the shock of receiving a “cold call” from the most famous anti-war activist in the country, Kairys quickly began plotting a legal strategy for Dr. Spock and his fellow activists to gain access to Fort Dix.76 Money would not be an issue as the National Emergency Civil Liberties Committee (NECLC) would finance the entire litigation.77

Kairys sketched out two potential approaches.78 First, Dr. Spock and his allies could simply campaign at Fort Dix without permission and, likely, get arrested.79 They could, then, challenge the criminal charges in court.80 Alternatively, Dr. Spock could simply request written permission from the post commander and, if denied, challenge the denial in federal court.81 Dr. Spock opted for the second approach; and so, on 9 September 1972, Spock wrote to General David to advise him that they intended to enter Fort Dix to distribute campaign material and to “discuss election issues with service personnel and their dependents.”82 Dr. Spock stated that he would abide by any “time and place” restrictions.83

On 18 September 1972, General David denied Dr. Spock’s request in a letter, which stated in relevant part:

There are several compelling reasons for this denial which I shall enumerate. First, there are lawful regulations in effect which prohibit political speeches and similar activities on all of the Fort Dix Military Reservation (Fort Dix Regulation 210-26). The distribution of literature without prior approval of this headquarters is also prohibited (Fort Dix Regulation 210-27). Also, Department of the Army Regulations prohibit military personnel from participating in any partisan political campaign and further prohibits [sic] them from appearing at public demonstrations in uniform.

The mission assigned to me as Commanding General of Fort Dix is to administer basic combat training to approximately 15,000 men at any given time. These men spend a period of eight weeks here during which they perform their training on very vigorous schedules occupying virtually all of their time. I am not in a position to dilute the quality of this training by expanding these schedules to include time to attend political campaigning and speeches. Political campaigning on Fort Dix cannot help but interfere with our training and other military missions.

To decide otherwise could also give the appearance that you or your campaign is supported by me in my official capacity . . . .84

Fort Dix, and virtually every Army installation, had regulations that were based on Army Regulation 210-10, which prohibited “picketing, demonstrations, sit-ins, protest marches, political speeches, and similar activities. . . .”85

Upon receiving the general’s letter, Dr. Spock and his allies responded with another letter, this time informing General David that they intended to campaign on Fort Dix on 23 September 1972, even in the face of his denial.86 Dr. Spock also turned to the press, informing them that General David had “denied permission” for him to campaign for the presidency at Fort Dix.87 Dr. Spock would turn to the press during each step of the legal battle to ensure their anti-war message received maximum publicity.

While Fort Dix was normally unguarded, on 23 September 1972, General David sent representatives to the front gate to deny Spock and his entourage admittance.88 After briefly conferring with Dr. Spock, several Army officials “quietly” denied Dr. Spock and his entourage access to the post.89 The Los Angeles Times reported that Dr. Spock was “rebuffed as expected.”90 Dr. Spock defiantly told reporters, “If a soldier is allowed to vote, then he should be allowed to hear the issues and meet the candidates.”91 Dr. Spock then told the press that he planned to take legal action to gain access to the base.92

While Fort Dix was normally unguarded, on 23 September 1972, General David sent representatives to the front gate to deny Spock and his entourage admittance

The First Legal Skirmish—An Early Defeat for Dr. Spock

True to his word, Dr. Spock sought a preliminary injunction to allow him to make a political address and pass out campaign literature at Fort Dix. An emergency hearing was held on 4 October 1972. The district court judge, Clarkson Fisher, commented that it was “interesting to note” that Dr. Spock and the other campaigners have allied themselves in the litigation with the anti-Vietnam War activists.93 This cryptic remark seemed to suggest that Judge Fisher thought Dr. Spock’s political campaign was really simply a cover to spread anti-war propaganda. Judge Fisher went on to say that the “primary military mission at Fort Dix is training” and anything that would “interfere with the mission of the Command makes no sense whatsoever.”94 He then rejected Dr. Spock’s injunction on 12 October 1972, holding that the military “must remain politically antiseptic.”95

Flower Blossoms

Not surprisingly, Dr. Spock immediately appealed the district court’s decision to the U.S. Court of Appeals for the Third Circuit. The Third Circuit conceded that the military exercised jurisdiction “over the entire reservation” but concluded, “[E]xercise of such jurisdiction does not imply the power to selectively exclude persons solely on the ground of exercise of rights protected by the first amendment.”96 The court relied primarily on the 1972 Supreme Court case Flower v. United States to reach its conclusion. The facts in Flower were remarkably similar to the facts in Spock. Flower involved an anti-war activist, John Thomas Flower, who was “quietly distributing leaflets on New Braunfels Avenue” within the limits of Fort Sam Houston, Texas.97 Just like Fort Dix, the Commanding General of Fort Sam Houston allowed civilians to travel on the military installation’s streets and walk on the installation’s sidewalks. Both Fort Dix and Fort Sam Houston employed no sentries or guards at the entrances. Essentially, both posts were “open” to the public. The commander of Fort Sam Houston had previously barred Flower from the post, and so Flower was arrested by the military police when he subsequently attempted to distribute “unauthorized leaflets.”98 Flower was sentenced to six months in prison.

Justice Potter Stewart wrote the per curiam decision reversing Flower’s conviction.99 The decision was made “without the benefit [of ] briefs or oral argument.”100 In his brief one-page decision, Justice Stewart held that the “base commander can no more order petitioner off this public street because he was distributing leaflets than could the city police order any leafleteer off any public street.”101 Under “such circumstances,” Justice Stewart determined that the “military had abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue.”102 Justice Stewart was so certain that the First Amendment protected such activities that he said that there was no “need to set the matter for further argument.103

Applying the principles announced in Flower, the Third Circuit easily concluded, “Fort Dix, when compared to Fort Sam Houston, is a fortiori an open post.”104 The Third Circuit rejected Judge Fisher’s argument that the Army had to remain politically neutral and found that a “policy of antisepsis . . . would not be neutral. It would consign military voters to the category of the uninformed.”105 The Third Circuit also questioned whether the regulations at Fort Dix were really “content neutral”:

What the Fort Dix voters are protected from, practically speaking, is exposure to the political ideas of those minor candidates whose campaigns are neither prominent enough nor sufficiently well-financed to attract media coverage, and who must make do with the more old fashioned face-to-face style of campaigning.106

Spock, left, marches with Martin Luther King, Jr.

Interestingly, Fort Dix Regulation 210-26 was published in 1968, and Fort Dix Regulation 210-27 was published in 1970, so neither even attempted to incorporate the Flower ruling. However, the Third Circuit saw the regulations as mere “feigned neutrality” and overturned the district court’s ruling.107 Thus, on 27 October 1972, the Third Circuit remanded the case for entry of a preliminary injunction “directing the defendants to cease from interfering with the political campaigning by the candidate plaintiffs Spock, Hobson, Jenness, and Pulley or with the distribution of campaign literature on their behalf within the unrestricted areas of the Fort Dix Military Reservation . . . .”108

The Supreme Court’s First Position on Dr. Spock

The Solicitor General at the time, Erwin N. Griswold, immediately appealed the Third Circuit’s decision to the Supreme Court.109 Griswold was a well-respected attorney who was a “lifelong Republican with a background of Midwest conservatism.”110 Griswold is credited with compiling the first version of the Bluebook, “the paragon of citation style,” as a law student in ١٩٢٦.111 Before being appointed as the U.S. Solicitor General, he was the dean of Harvard Law School for twenty-one years.112

On appeal, Griswold argued to the Supreme Court that allowing campaigning on a military installation would undermine “the fundamental principle that the Army must not become involved or even appear to be involved in politics.”113 On 3 November 1972, the Supreme Court denied the government’s application for a stay of the judgment of the Third Circuit without explanation.114 The majority, including Justices Powell, Douglas, Brennan, Stewart, and Marshall, all voted to deny the government’s request, while the dissent, including Chief Justice Burger and Justices Rehnquist, White, and Blackmun, all would have granted the stay to allow further argument.115 The Supreme Court’s denial seemingly reinforced the validity of the Third Circuit’s interpretation of the Flower decision.

Spock and Hobson, though defeated in the presidential race of 1972, desired to continue political activity on the Fort Dix Military Reservation, and the barred pamphleteers desired to distribute their literature on that base

The First Political Campaign on a Military Installation in American History

With the Supreme Court’s denial of the government’s appeal, the stage was finally set for the first political campaign on a military installation in the history of America.116 Now that they had won the right to campaign, Dr. Spock and his allies made it clear that the primary purpose of the campaign was to spread their anti-war message. Dr. Spock and Linda Jenness triumphantly informed the press that they would hold “the first political anti-war rally ever on an American military base.”117 The campaign/rally occurred on 4 November 1972 at a Fort Dix parking lot.118

The success of Dr. Spock’s Fort Dix campaign rally is debatable. Kairys described the event as a “sizable gathering of [S]oldiers” and recalled the campaign stop at Fort Dix in somewhat glowing terms.119 He recalled that there was “no trouble or any disruptions from anyone favorable or unfavorable to the speakers.”120 Kairys recalled that the candidates “addressed the crowd directly as [S]oldiers on the war and the opposition to the war.”121 Folk singer and anti-war activist Judy Collins performed as part of the campaign and spoke “movingly” about her opposition to the war. 122 Kairys recalls smoking his pipe “with great satisfaction” while listening to the candidates protest the war in the heart of a military installation.123

Contemporaneous news accounts of the event were less glowing. The New York Times reported that the rally was “uneventful” and that a crowd of only about 150 people attended the campaign rally.124 While 150 Soldiers attending a socialist campaign on a military training base would not be a bad turnout, all things considered, the New York Times went on to report that fifty of the spectators were members of the press, while the other 100 attendees were “Spock supporters bussed onto the base.”125 Simple arithmetic derived from that press account would suggest that no Soldiers from Fort Dix attended the campaign.

However, the record does reflect that at least a few Soldiers attended the campaign rally. In an early draft of Justice Potter’s majority opinion in Greer v. Spock, a deleted portion described the rally in the following manner: “Approximately 150 to 200 persons were present, including sixty to seventy-five civilians. Some thirty to forty military personnel attended the rally in uniform, in violation of an Army regulation. No violence or disruption occurred during the rally.”126

Three days after the Fort Dix political rally, the presidential elections were held on 7 November 1972. President Nixon defeated George McGovern, Dr. Spock, and Linda Jenness by a large margin.127

After Dr. Spock’s legal victory, counter-culture activists used the legal precedence of Flower and Spock to successfully demand access to the Presidio of San Francisco, California;128 Fort Bragg, North Carolina; Hickam Air Force Base, Hawaii; the Air Force Academy, Colorado; and “even aboard aircraft carriers.”129 The military gates had been largely smashed down and opened to activists so they could make face-to-face appeals directly to service members. With the Supreme Court’s denial of the government’s appeal and the presidential election over, the story should have been over.

But it wasn’t.

There is a saying by Napoleon Bonaparte, “You must not fight too often with one enemy, or you will teach him all your art of war.” Not satisfied with their legal victory, Dr. Spock and his team pressed for a permanent injunction against General David and Fort Dix. As the Third Circuit noted, “Spock and Hobson, though defeated in the presidential race of 1972, desired to continue political activity on the Fort Dix Military Reservation, and the barred pamphleteers desired to distribute their literature on that base.”130 The district court complied with Dr. Spock’s demands and issued a permanent injunction enjoining General David from enforcing the offending portions of Fort Dix Regulations 210-27 and 210-26 and allowing Dr. Spock and the Socialist Workers Party to be free to conduct political campaigning at Fort Dix, subject to reasonable time, place, and manner restrictions.131

Due to Dr. Spock’s continued demand for further access to the post, the dispute was not moot.132 It is not clear why Dr. Spock continued to push for access, although it may have been that he wanted to continue campaigning there for the 1976 campaign, or perhaps just as a matter of principle. The government claimed that the courts lacked jurisdiction to enforce the injunction, pursuant to 28 U.S.C. 1331.133 At that time, 28 U.S.C. 1331 required that controversies meet the jurisdictional threshold amount of $10,000.134 The government claimed that the amount in controversy was less than $10,000, and thus below the statutory threshold. Kairys argued on behalf of Dr. Spock that “free speech is by definition worth more than $10,000” and also pointed to the cost of advertising in the area as being over $10,000.135 The Third Circuit ultimately sided with Kairys that the jurisdictional amount was met and affirmed the lower court’s permanent injunction.136 Robert Bork, as Solicitor General, quickly appealed the case back to the Supreme Court for the final confrontation. Bork had been the Solicitor General for about three years when Greer v. Spock was argued.137 Bork elected to make the oral argument at the Supreme Court himself.138 In fact, Bork was so proud of his oral argument in Greer v. Spock that he included the entire transcript from his oral argument in one of his books.139

The Wilting of Flower: The Lone Dissenter’s Hidden Influence

Justice William H. Rehnquist was only forty-seven years old when President Nixon appointed him to the bench in 1971.140 While he was the youngest justice on the Burger Court, he quickly became its “most conservative member,” with Newsweek even calling him “The Court’s Mr. Right.”141 Justice Rehnquist set a record for issuing fifty-four solo dissents during his first fourteen years as an associate justice, earning him the nickname of the “Lone Dissenter.”142 Justice Rehnquist tended to be deferential to military regulations, especially when it involved issues of freedom of expression in the military context.143 He authored several decisions that validated the exercise of military authority, including Parker v. Levy—upholding the constitutionality of Articles 133 and 134 of the Uniform Code of Military Justice144— and Middendorf v. Henry—holding the denial of counsel in summary courts-martial as constitutional and issued the same day as Spock v. Greer.145

One of Justice Rehnquist’s first dissents on the Court was in Flower v. United States, the same decision that was so heavily relied on by the Third Circuit.146 In that dissent, Justice Rehnquist blasted the Court’s “impressionistic summary reversal” that was reached “without benefit of briefs or oral argument.”147 He argued that “the unique requirements of military morale and security may well necessitate control over certain persons and activities on the base, even while normal traffic flow through the area can be tolerated.”148 He criticized the majority’s view that the commander “abandoned” his claim to control access to the installation by simply allowing individuals on government property.149 Although an unsigned per curium decision, Justice Potter Stewart authored the Flower opinion and had also voted with the majority to deny the first Spock appeal back in 1972. The challenge for Justice Rehnquist was to convince Justice Stewart to execute a 180-degree “about-face” on the issue.

As the 1975 term progressed, the fifty-one-year-old Justice Rehnquist and the seventy-year old Justice Stewart “continued to grow closer, both personally and professionally,” and their relationship “affected the alignment of the Court.”150 Justice Rehnquist’s decisions were “important, well-reasoned, and sophisticated” and often “forced the majority to address new issues or to narrow its focus.”151 When asked to describe Justice Rehnquist, Justice Stewart would simply say he was “excellent” and a “team player.”152 Justice Stewart’s law clerks felt Justice Rehnquist’s influence and were “not entirely happy about the way their boss seemed to have fallen under Rehnquist’s spell.”153 Justice Stewart’s contemporaneous files are remarkably silent about any conversations between the two justices regarding Greer v. Spock; however, something—or someone—fundamentally changed Justice Stewart’s view on the merits of the case. Justice Rehnquist is the most likely suspect.

Out of the Wilderness

During the Greer v. Spock conference, Chief Justice Warren Burger began by stating that a military installation is “not a public forum like a public park.”154 He indicated that Lloyd v. Tanner—which allowed a private mall to forbid certain types of speeches on its property—“has much bearing.”155 Chief Justice Burger mentioned the Cafeteria Workers case—in which the Court upheld the power of the military to bar entry to a base—and noted that the Hatch Act isolates civilian employees from politics.156 Chief Justice Burger ended his comments by stating, “A base, is a base, is a base, is a base.”157

Justice Byron White largely agreed with Chief Justice Burger and believed that the Third Circuit’s decision “crosses the line against involving the military in politics unnecessarily. This is military property, and if we allow this, I don’t know where to stop.”158 Surprisingly, Justice Potter Stewart seemed to agree with Chief Justice Burger and Justice White during the conference, when he said, “This is the military, and our constitutional tradition to isolate the military from politics requires this.”159

On the other side, only Justice Douglas and Justice Marshall indicated that they were inclined to side with Dr. Spock. Justice Brennan passed but, ultimately, filed a lengthy and heated dissent.160 Justice Douglas, who had suffered a debilitating stroke on 31 December 1975, retired before the decision, and Justice Stevens, who replaced Douglas, did not participate.161

Justice Rehnquist was conspicuously silent during the Greer v. Spock conference. According to Justice Blackmun’s detailed conference notes, every justice that was present made comments except Justice Rehnquist.162 Based on his dissents in Flower and the earlier Spock decisions, Justice Rehnquist clearly held strong views on the issue, but he chose to keep his own counsel during the conference. Among the other justices, there was still much uncertainty on how to vote. Justice Blackmun drafted a long internal legal memorandum on the issues, including a detailed analysis of Flower.163 At the conclusion of the memo, he wrote, “I therefore suspect that I shall vote to affirm, but do so with some reluctance and would be pleased to see someone lead me out of the wilderness.”164 This final paragraph was subsequently crossed out in pencil with the word “No” underlined twice. Apparently, Justice Blackmun found his guide out of the wilderness and ultimately voted with the majority to overturn.

At oral argument on 5 November 1975, the Flower decision loomed large. Bork began his argument with a concession, “I have no trouble agreeing that if this were about civilians within a city, an ordinance like the commander’s rules here would be unconstitutional.”165 He then began to distinguish the case on military grounds, “But we’re dealing here with a military base, devoted to the training of soldiers. The commander of Fort Dix has the lawful power to exclude all civilians from the base.”166 Justice Rehnquist then asked, “Well, that was true in Flower, too, wasn’t it?”167 At this point, Bork had two options—he could have argued that Flower was wrongly decided and should be overturned or he could try to distinguish the case, even though the facts were almost indistinguishable. He opted to attempt to distinguish the cases:

Mr. Bork: It is true in Flower also. I think Flower is a different case in a variety of reasons I am going to come to. One I think; one reason, one point of difference it seems to me is that street was indistinguishable from any other civilian street indeed continued straight through from the city in the way that is not true at Fort Dix, but I think there are other reasons that Flower does not govern in this case.

Justice Rehnquist: Well, but did not he retain that power in Fort Sam Houston in Flower, too?

Mr. Bork: Mr. Justice Rehnquist, if I thought that Flower had announced . . . [a] principle so broad as to say that if the Commander let civilians on the base… he must let them on base for all purposes. That is . . . any access means all access. Then I would [,] without hesitation [,] ask this Court to modify [,] or reverse [,] or overrule Flower. I do not think it should be read that broadly.168

Kairys, of course, argued that the facts in Flower were indistinguishable. He began his oral argument by saying:

First of all, I do not note anyway in which the Solicitor General actually distinguishes this base or these areas that First Amendment rights were granted in this case from either the areas at Fort Sam Houston involved in Flower or from the usual kinds of civilian streets. Regarding the question of Mr. Chief Justice Burger, there are also highways, state roads and county roads that go completely across the base and the one involving several the respondents here in the Wrightstown road exit which is pictured in [the] appendix . . . is certainly indistinguishable from the city. You cannot even figure out on that picture where base starts and where the city ends . . . .169

Kairys also claimed that the former vice president, Spiro Agnew, was the first person to give a “political speech” on a military base, proving that the Army was not really being neutral in its application in its rules.170 Justice Stewart expressed some suspicion regarding this argument, “That speaker was the incumbent vice-president, wasn’t he? . . . And one remembers a great many occasions when an incumbent president spoke almost only at military bases. . . . He is Commander in Chief and I suppose he could change any regulations that might be made at Fort Dix or anywhere else, could not he?” 171

Kairys also argued that the Court’s civilian First Amendment cases should apply, specifically Hague v. CIO, which held that “wherever the title of streets and parks may rest, they [are] held in trust for the use of the public.”172 Additionally, Freedman v. Maryland held, “In the area of freedom of expression, it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office . . . whether or not he applied for a license.”173 Freedman v. Maryland seemed to hold that the pamphleteers had standing to challenge the Dix regulations even though they did not first apply for permission.

After oral arguments, the justices still expressed great uncertainty on how the case should come out. Justice White wrote to Justice Stewart, “I had my doubts about the regulations insofar as the distribution of political literature is concerned, but I join your circulation of January 27, subject to what is written in dissent on the literature issue.”174 In one of Justice Stewart’s subsequent drafts, someone wrote in the margins of Justice White’s copy, “Justice Stewart is trying to mollify you.”175 Justice Blackmun also wrote to Justice Stewart, stating, “I shall await Lewis[ Powell]’s concurrence” before making a decision.176

Layered on top of the general indecision of the Court was concern over the political ramifications of the decision. Justice Stewart was uniquely concerned about the potential political fallout. On 9 March 1976, he wrote the following personal message to the Chief Justice: “One final thought. It seems to me that in this election year it would be wise to announce our decision in this case reasonably soon, whatever that decision may ultimately be.”177 Chief Justice Burger replied the same day, “Dear Potter: I quite agree with what you say and also on the essence of time. Possibly I may add a short ‘snapper’ concurrence.”178

The Final Decision: About-Face!

After much indecision, the majority finally formed around Justice Stewart’s opinion, although the justices still felt the need to file two separate concurrences and two separate dissents. Ultimately, Justice Stewart’s majority opinion overturned the Third Circuit. He largely adopted Bork’s argument that the Flower precedent did not apply in this case. Justice Stewart wrote:

Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had “abandoned any claim [of] special interest in who walks, talks, or distributes leaflets on the avenue,” then the implication surely is that a different result must obtain on a military installation where the authorities have not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history.179

Justice Stewart then wrote the most famous lines in the case, “In short, it is ‘the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’ And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum.”180 And while the controversial anti-war content of Spock’s campaign may have been simmering under the surface, Justice Stewart stressed that there was “no claim that the military authorities discriminated in any way among the candidates for public office based upon the candidates’ supposed political views. It is undisputed that, until the appearance of . . . Spock at Fort Dix . . . as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there.”181 Finally, Justice Stewart stressed that the literature was not denied based on its content, and, in fact, “the respondents didn’t even attempt to obtain approval.”182 Justice Stewart also emphasized that the military must remain politically neutral, to avoid even the appearance of “acting as a handmaiden for partisan political causes or candidates.”183

Justices Brennan and Marshall, the last liberal stalwarts from the Warren era, wrote harsh dissents. Justice Brennan hammered the fact that Flower was indistinguishable from the facts in Spock, even going as far as publishing the photos comparing the two posts that Kairys submitted with his brief.184 Justice Marshall stated that he was “deeply concerned” that the majority seemed to suggest that the “Constitution does not apply to the military.” He specifically pointed to the other Justice Rehnquist decision of Middendorf v. Henry—issued the same day as Spock—as further evidence that the Court has gone “distressingly far toward deciding that fundamental constitutional rights can be denied to both civilians and servicemen whenever the military thinks its functioning would be enhanced by doing so.”185

The media’s reaction to the dual decisions in Greer and Middendorf was largely negative. The Los Angeles Times’s coverage focused on the “blistering dissent” that criticized the “‘unblinking deference’ to the claim that the military was a world apart.”186 The Los Angeles Times reported that the “result Wednesday came as a surprise since only four years ago the high court permitted political pamphleteering at Ft. Sam Houston, Tex. on the theory that civilians freely roamed the streets.” The article mentioned that Justice Brennan’s dissent included pictures comparing Fort Sam Houston and Fort Dix “to show that there was no meaningful distinction.”187 The New York Times headline read, “High Court Limits Military Rights,” and implicitly criticized the decision’s “sharp distinction between the rights of civilians and those of military personnel . . . .”188

Justice Stewart then wrote the most famous lines in the case, “In short, it is ‘the primary business of armies and navies to fight or be ready to fight wars should the occasion arise’ . . .

Aftermath

When the dust settled, the dissents’ concern that Greer v. Spock would fundamentally change constitutional rights was, perhaps, a little overheated. However, it was a clear victory for traditional military authorities over the counter-culture. It was also a victory for Justice Rehnquist in his quest to nudge the Court a bit to the right. After the Greer v. Spock decision was finalized, Justice Stewart’s clerks would “snipe: ‘Flower looks the other way’” whenever Justice Stewart would join one of Justice Rehnquist’s “more inexplicable decisions.”189 Kairys recalls calling Dr. Spock after the decision and “bemoaning the conservative trend of the Supreme Court.”190 He believed the result of the case was as a “conservative retrenchment” regarding First Amendment rights. He also said: “Something hit me clearly that day that had been brewing for some time. Legal opinions are written in a style that emphasizes objectivity and requires results. But there is broad, though usually hidden, discretion, choices made based on values nowhere specified or required in the law.”191 This revelation underscores the importance of why knowing the whole story behind a famous case is helpful. Greer v. Spock stands for the commander’s broad authority to control what occurs on his post, but this bedrock principle could have just as easily been curtailed if Justice Stewart had not changed his position and sided with Justice Rehnquist. Also, there is a tendency to read precedent more broadly than necessary and not challenge the underlying factual basis of a decision.

Bork’s oral argument sought to distinguish the facts of Flower rather than seek to overturn it by arguing that the Court should confine Flower to the unique facts at Fort Sam Houston. This tactic is, obviously, a more persuasive technique to convince the Court—and Justice Stewart—not to follow what may appear on the surface to be binding precedence. Finally, by understanding the full story behind Greer v. Spock, practitioners are better able to advise commanders grappling with modern versions of the similar First Amendment issues—from the commander’s ability to restrict speech on social media to limiting politically-motivated demonstrations at high-profile courts-martial. There is also a danger that practitioners who are unfamiliar with the story behind Spock will read the holding too broadly and forget about the limits of a commander’s authority in Flower, which is still good law lurking in the background, waiting for the day a commander overreaches.

The holding in Greer v. Spock has been applied by the Court to the civilian setting, but it stands for very different propositions, depending on who is making the argument. For example, liberal justices point to the Spock decision for the proposition that public schools should have the ability to restrict religious groups’ ability to meet on school grounds under the theory that Spock stands for the proposition that “public entities have ‘broad discretion to preserve the property under its control for the use to which it is lawfully dedicated.””192 Conservative justices, on the other hand, rely on Spock to uphold the government’s ability to restrict speech in certain public areas, such as airports193 and postal sidewalks.194 For example, Justice O’Connor relied on Spock for the proposition that “although airports do not normally restrict public access, ‘publically owned or operated property does not become a “public forum” simply because members of the public are permitted to come and go at will.’”195 Understanding the full story and context behind the Spock case demonstrates how precedent can be spun and twisted on both sides of an argument to stand for broad propositions that are unhinged from the factual moorings of the actual case.

While Dr. Spock lost the case, he didn’t miss a step in life. He kept advocating against the war and nuclear weapons and writing books until he retired to enjoy a life of leisure boating.196 He passed away in San Diego on 15 March 1998 at the age of 94. Kairys, his attorney, continued practicing civil rights cases, but now is a full-time law professor at Temple University.197

While Bork’s arguments won the day in Greer v. Spock, the cultural wars ultimately caught up with him. When President Jimmy Carter was elected in 1976, Bork returned to Yale Law School.198 After President Ronald Regan was elected president in 1980, Bork was appointed to the D.C. Circuit, where he served for five years.199 He was then nominated for the Supreme Court, where Senate democrats systematically attacked his conservative jurisprudence and defeated his nomination.200 Clearly, the cultural wars did not end with the decision in Greer v. Spock, and the winners of one battle could very well be the losers in the next. TAL

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LTC (Ret.) Andrew J. Smith retired as the Chief of Trial Team 1, U.S. Army Contract and Fiscal Law Division (KFLD) at the U.S. Army Legal Services Agency, Fort Belvoir, Virginia. He was previously a Senior Attorney with the Government Accountability Office. He is currently the Chief of Bid Protests, KFLD. He would like thank Professor Gregory Maggs of George Washington University and Justice Clarence Thomas for their support and guidance during the drafting of this article.

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Notes

1. Greer v. Spock, 424 U.S. 828, 837-38 (1976).

2. Id.

3. See Norman F. Cantor, The Age of Protest, Dissent and Rebellion in the Twentieth Century v-xiv (Walter Anderson ed., 2d ed. 1969) see also Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism an American Decline (1996).

4. David Kairys, Philadelphia Freedom: Memoir of a Civil Rights Lawyer 393 (2008).

5. Id.

6. Bork, supra note 3, at 21.

7. Flower v. United States, 407 U.S. 197 (1972).

8. Jenness v. Forbes, 351 F. Supp. 88 (D.R.I. 1972).

9. Gereon Zimmerman, What Makes Dr. Spock March? in Cantor, supra note 3, at 167-73.

10. Benjamin Spock, The Common Sense Book of Baby and Child Care (1946).

11. Id.

12. Thomas Maier, Dr. Spock: An American Life 462 (Basic Books 2003) (1998).

13. Eric Pace, Benjamin Spock, World’s Pediatrician, Dies at 94, N.Y. Times (Mar. 17, 1998), https://www.nytimes.com/1998/03/17/us/benjamin-spock-world-s-pediatrician-dies-at-94.html.

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Zimmerman, supra note 9, at 168.

21. Pace, supra note 13.

22. Id.

23. Id.

24. Id.

25. Zimmerman, supra note 9, at 167.

26. Greer v. Spock, 44 U.S.L.W. 4380, 4393 (23 Mar. 1976) (Brennan, J., dissenting).

27. Zimmerman, supra note 9, at 171.

28. Id.

29. Alan M. Dershowitz, America on Trial 382-89 (2005) see also Jessica Mitford, The Trial of Dr. Spock 55 (1969).

30. Dershowitz, supra note 29.

31. Id. at 382.

32. Id.

33. Id. at 385.

34. Id. Dr. Spock never served any of his jail time. Louise Hidalgo, Dr Spock’s Baby and Child Care at 65, BBC (Aug. 23, 2011), https://www.bbc.com/news/world-us-canada-14534094.

35. Dershowitz, supra note 29, at 385.

36. Cynthia Gorney, Julius Hobson, Sr. Dies, Wash. Post (Mar. 24, 1977), https://www.washingtonpost.com/archive/politics/1977/03/24/julius-hobson-sr-dies/8c1edc81-9586-487a-a78b-5b6ffedab48a/.

37. Id.

38. Id.

39. Paul W. Valentine, FBI Records List Julius Hobson as “Confidential Source” in ’60s, Wash. Post, May 22, 1981, at A1.

40. Id.

41. Id.

42. Id.

43. Belva Lockwood, Lawyer, Dies at 85, N.Y. Times, May 20, 1917, at 23. The first woman to run for the presidency was the George Washington Law School alum Belva Ann Lockwood, who ran for the presidency in 1884 as the candidate for the “Equality Party.” Id.

44. See U.S. Const., art. II, § 1, cl. 5.

45. Hospers on Crime and the FBI, 4 Libertarian Forum 10, 2 (Dec. 1972), https://cdn.mises.org/Libertarian%20Forum_Volume_1.pdf.

46. Id.

47. See Jenness v. Forbes, 351 F. Supp. 88, 90 (D.R.I. 1972).

48. See U.S. Const., art. II, § 1, cl. 5.

49. Spock Will Sue to Speak at Ft. Dix, N.Y. Times, Sept. 25, 1972, at 78.

50. David Cortright, Soldiers in Revolt: GI Resistance During the Vietnam War 59-60 (2005).

51. Id.

52. Socialist Workers Party v. Attorney Gen. of Unites States, 642 F. Supp. 1357, 1373-74 (S.D.N.Y. 1986).

53. Id.

54. Id. at 1357.

55. See 1980 Presidential General Election Results, Dave Leip’s Atlas of U.S. Presidential Elections, www.uselectionatlas.org/RESULTS/national.php?year=1980&minper=0&f=0&off=0&elect=0 (last visited Mar. 24, 2020).

56. Spock v. David, 349 F. Supp. 179, 180 (D.N.J. 1972).

57. See Gillette v. United States, 401 U.S. 437 (1971).

58. Spock, 349 F. Supp. at 180.

59. Id.

60. Bert Alison David Memorial Article, West-Point.org (Dec. 1980), http://www.west-point.org/users/usma1946/15849/.

61. Id.

62. Id.

63. Id.

64. Id.

65. Id.

66. Id.

67. Randy Robinson, Bert Alison David, Eugology, West-Point.org (May 30, 2012), http://defender.west-point.org/service/display.mhtml?u=15849&i=49743.

68. Id.

69. Id.

70. Id.

71. Maj. Gen. Thomas U. Greer Biography, U.S. Army Pacific, http://www.usarpac.army.mil/history2/cg_greer.asp (last visited Mar. 24, 2020).

72. Id.

73. Id.

74. Kairys, supra note 4, at 227.

75. Id. at 227.

76. Id. at 227-28.

77. Id.

78. Id.

79. Id.

80. Id. at 227.

81. Id.

82. Greer v. Spock, 424 U.S. 828, 832 (1976).

83. Id.

84. Id. at 833, n.3.

85. Dennis Corrigan, The Lonely Flower, Army Law., June 1976, at 1.

86. Spock v. David, 349 F. Supp. 179 (D.N.J. 1972).

87. Fred Ferretti, Fort Dix Bars Candidate, N.Y. Times, Sept. 22, 1972, at 30.

88. Id.

89. Spock Denied Entry to Ft. Dix, L.A. Times, Sept. 24, 1972 at 5.

90. Id.

91. Spock Will Sue to Speak at Ft. Dix, N.Y. Times, Sept. 25, 1972 at 78.

92. Id.

93. Spock v. David, 349 F. Supp. 179-80 (D.N.J. 1972).

94. Id.

95. Id. at 181-82.

96. Id.

97. Flower v. United States, 407 U.S. 197 (1972).

98. Id.

99. Id. at 199.

100. Id. (Rehnquist, J. dissenting).

101. Id. at 198.

102. Id.

103. Id. at 199.

104. Spock v. David, 469 F.2d 1047, 1053 (1972).

105. Id. at 1055.

106. Id. at 1056.

107. Id.

108. Id. at 1047.

109. Dr. Spock Given OK to Appear at Ft. Dix, L.A. Times, Nov. 4, 1972, at 28.

110. Dennis Hevesi, Erwin Griswold of Harvard, Ex-Soliciotor General, N.Y. Times, Nov. 21, 1994, at 90.

111. Christine Hurt, The Bluebook at Eighteen: Reflecting and Ratifying Current Trends in Legal Scholarship, 82 Ind. L.J. 49, 51 (2006).

112. Hevesi, supra note 110, at 58.

113. Id.

114. Laird v. Spock, 409 U.S. 971 (1972).

115. Id.

116. Spock Allowed to Go to Ft. Dix, Wash. Post, Nov. 4, 1972, at A4.

117. Id. (emphasis added).

118. Corrigan, supra note 85, at 3.

119. Kairys, supra note 4, at 231.

120. E-mail from David Kairys, Prof. of Law, Temple Univ. Beasley Sch. Of Law to Author (Oct. 13, 2014) (on file with author) [hereinafter Kairys Email].

121. Id.

122. Id.

123. Kairys, supra note 4, at 231.

124. Spock Campaigns in Fort Dix, N.Y. Times, Nov. 6, 1972, at 87.

125. Id.

126. Potter Stewart Papers (Call Number: MS 1367), Archives at Yale, archives.yale.edu/repositories/12/resources/4553/collection_organization#scroll::/repositories/12/resources/4553 (last visited Mar. 24, 2020) [hereinafter Stewart Papers].

127. Dr. Spock ultimately received only 78,759 votes nationwide, while Linda Jenness outdid him by receiving 83,380 votes. See Max Frankel, President Won 49 States and 521 Electoral Votes, N.Y. Times, Nov. 9, 1972, https://www.nytimes.com/1972/11/09/archives/new-jersey-pages-president-won-49-states-and-521-electoral-votes.html.

128. CCCO-Western Region v. Fellows, 359 F. Supp. 644 (N.D. Cal. 1972).

129. Corrigan, supra note 85, at 2 (citing Burnett v. Tolsen, 474 F.2d 877 (4th Cir. 1973); Butler v. United States, 365 F. Supp. 644 (N.D. Cal. 1973); United States v. Gourley, 502 F.2d 785 (10th Cir. 1974); Allan v. Monger, 404 F.Supp. 1081 (N.D. Cal. 1975)).

130. Spock v. David, 502 F.2d 953, 955 (3d Cir. 1974).

131. Id. at 956, n.3.

132. Id.

133. Id.

134. Id.

135. Id.

136. Id. at 956.

137. Id.

138. Ethan Bronner, A Conservative Whose Supreme Court Bid Set the Senate on Fire, N.Y. Times (Dec. 19, 2012), https://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html.

139. Robert H. Bork, A Time to Speak: Selected Writings and Arguments 116-130 (2008).

140. Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (2005).

141. Bernard Schwartz, A History of the Supreme Court 317 (New York: Oxford University Press, 1995).

142. Id. Rehnquist’s law clerks even presented him with a “Lone Ranger” doll. Id.

143. Sue Davis, Justice William H. Rehnquist: Right-Wing Ideologue or Majoritarian Democrat? in The Burger Court: Political and Judicial Profiles 331 (Charles M. Lamb & Stephen C. Halpern, eds., 1991).

144. Parker v. Levy, 417 U.S. 733 (1974).

145. Middendorf v. Henry, 425 U.S. 25 (1976).

146. Flower v. United States, 407 U.S. 197 (1972).

147. Id. at 656 (Rehnquist, J., dissenting).

148. Id. at 657.

149. Id.

150. Woodward & Armstrong, supra note 140, at 410.

151. Id.

152. Id.

153. Id.

154. Id.

155. Id.

156. Id.

157. Id.

158. Id.

159. Id.

160. Id.

161. Warrend Weaver Jr., Justices to Say if Military Can Ban Politics on Bases, N.Y. Times, Apr. 15, 1975, at 10.

162. Harry A. Blackmun, Harry Blackmun Papers, Library of Congress, at Box 216, findingaids.loc.gov/exist_collections/ead3pdf/mss/2003/ms003030.pdf (last visited Oct. 28, 2014).

163. Id.

164. Id.

165. Kairys, supra note 4, at 231.

166. Oral Argument, Spock, 424 U.S. 828 (1976) http://www.oyez.org/cases/1970-1979/1975/1975_74_848 (last visited Apr. 8, 2020).

167. Id.

168. Id.

169. Id.

170. Id.

171. Id.

172. Kairys, supra note 4, at 231.

173. Freedman v. Maryland, 380 U.S. 51 (1965).

174. Stewart Papers, supra note 126.

175. Id.

176. Id.

177. Id.

178. Id.

179. Greer v. Spock, 424 U.S. 828, 837 (1976).

180. Id. at 837-38.

181. Id. at 839.

182. Id. at 840.

183. Id. at 839.

184. Id. at 871 (Brennan, J., dissenting).

185. Id. at 873 (Marshall, J., dissenting).

186. Military Ban on Political Activity in Bases Upheld, L.A. Times, Mar. 25, 1976 at B1.

187. Id.

188. High Court Limits Military Rights, N.Y. Times, Mar. 25, 1976, at 29.

189. Woodward & Armstrong, supra note 140, at 411.

190. Kairys Email, supra note 120.

191. Kairys, supra note 4, at 241.

192. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 131 (2001) (Stevens, J., dissenting).

193. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 686 (1992) (O’Connor, J., concurring).

194. United States. v. Kokinda, 497 U.S. 720, 727 (1990).

195. Id.

196. Pace, supra note 13.

197. David Kairys, Professor Emeritus, Temple Univ. Beasley School of Law, https://www.law.temple.edu/contact/david-kairys/ (last visited on Apr. 8, 2020).

198. Bronner, supra note 138.

199. Id.

200. Id.