The case before the U.S. Supreme Court on March 21, 1989, involved a demonstrator named Gregory “Joey” Johnson, who had been fined $2,000 and sentenced to a year in prison for burning an American flag near Dallas City Hall during the 1984 Republican National Convention.
State law prohibited “desecration of a venerated object,” including “a state or national flag,” but the Texas Court of Criminal Appeals threw out Mr. Johnson’s conviction, ruling that his act was political speech protected by the First Amendment. The Dallas County district attorney asked the Supreme Court to reinstate the conviction.
The oral argument had moments of levity; “Mr. Kunstler, are we going to get back to this case?” said an exasperated Justice Thurgood Marshall, cracking up the courtroom as Mr. Johnson’s lawyer, William Kunstler, jocularly chastised the court for leaving its flags up outside during the morning’s rain.
Afterward, the justices retreated to one of the most private spaces in America, the Supreme Court conference room. There, on Wednesdays and Fridays following oral arguments, the nine justices conform to longstanding custom: The chief justice summarizes the case, explains his view, and casts a straw vote. The associate justices follow in kind, in order of seniority.
Nobody else is present, no recording is made, and no minutes or transcripts are published. But contemporaneous notes exist from these meetings—taken by the justices themselves. They cover the confidential discussions that led to some of the court’s most consequential decisions—Brown v. Board of Education, holding school segregation unconstitutional; Baker v. Carr, which led to the one-person, one-vote principle; Griswold v. Connecticut, recognizing a right to privacy.
Unlike presidential papers, the files of Supreme Court justices and other federal judges are considered private property, to be disposed of as they wish. Some justices had their papers destroyed, while others made arrangements with the Library of Congress, universities or other archives, with varying restrictions on access. It will be a long time, for instance, until the public sees the private writings of retired Justice David Souter; they are to be opened 50 years after the justice, now 80 years old, dies.
Files of other justices including Robert Jackson, William O. Douglas, William J. Brennan Jr. and Harry Blackmun have, technically, been open to the public. But as a practical matter, they are inaccessible to all but the most dedicated scholars: buried in folders, incompletely cataloged, and often impenetrable to those without knowledge of the issues being discussed—or ability to decipher the jurists’ scrawls.
Now, however, the SCOTUSNotes project, spearheaded by Prof. Timothy Johnson of the University of Minnesota, is digitizing and transcribing those notes and archiving them online—allowing one to be a virtual fly on the wall as the nation’s most powerful jurists decided landmarks of American law.
The digitization project, which relies on volunteer transcribers, “is going to be the most important thing to happen to Supreme Court research ever,” says Del Dickson, a University of San Diego law professor who produced the closest resource to date, “The Supreme Court in Conference (1940-1985).” The 1,040-page tome, published in 2001 and selling for $160, contains Mr. Dickson’s reconstruction of some 300 conference discussions based on study of the justices’ notes—but doesn’t include the notes themselves.
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The documents in Mr. Johnson’s collection include some lighter fare as well—notes about baseball scores and other trenchant matters passed by the justices as they sat hearing oral argument. But it is the conference notes, starting after Justice Douglas joined the court in 1939, that provide details of the closed-door debates—sometimes revealing that justices’ first impressions differed from how they came out in the end.
For instance, after Brown v. Board of Education was first argued in December 1952, only four justices were ready to find school segregation unconstitutional, conference notes show, and one—Stanley Reed—voted to uphold it. Chief Justice Fred Vinson appeared to agonize: “I am not sure what we should do today,” he said, according to Justice Robert Jackson’s notes. Paralyzed, the court ordered the case heard again.
A year later, Chief Justice Vinson was dead, and his colleagues were thinking differently. “The 13th, 14th and 15th amendments were intended to make equal those who were once slaves,” the new chief, Earl Warren, told the conference, Justice Douglas’s notes say. “CJ does not see how segregation can be justified in this day and age.” The decision, issued five months later, showed all the justices in agreement.
In 1989, the flag-burning case sharply divided the court, conference notes reveal, scrambling ideological lines and forcing some justices to pick between their heads and their hearts.
Justice William Brennan's notes on Texas v. Johnson
Follow dissent
in Spence & argued this
is wrkbl statute
Flag burning &
fighting words may
be punished constitu-
tionally
—Chief Justice William Rehnquist
To affirm runs
FA* into the ground
—Justice Byron White
*First Amendment
Another emotional
case for this week.*
This is expressive
conduct & Texas
relies on nothing
not expressive
Spence governs here
but apart FA law
requires aff†
—Justice Harry Blackmun
*The same day, the court heard argument on whether a newspaper could be sued for publishing a rape victim’s name found in the public police records.
†Affirming decision against Texas
Justice William Brennan’s notes laid out the views concisely: Chief Justice William Rehnquist stuck by his 1974 dissent in Spence v. Washington, where he found no problem jailing a college student for using black tape to make a peace sign on his American flag after National Guardsmen in Ohio shot dead four Kent State University students protesting President Nixon’s decision to expand the Vietnam War into Cambodia.
Justice Harry Blackmun, on the other hand, found the flag-burning question more difficult. He called it yet “another emotional case” heard that week, Justice Brennan’s notes say, apparently referring to arguments involving a rape victim’s privacy.
But “this is expressive conduct,” said Justice Blackmun, like that of the student in Spence.
I’m going to pass
would rather go on
vagueness grounds
not being punished
for message but his
manner of com-
municating it
—Justice John Paul Stevens
Even tho our
cases require affirm-
ance, state says
carve out exception —
This is core speech for
political purpose
—Justice Sandra Day O’Connor
Agree with
Sandra
—Justice Antonin Scalia
Agree with Nino [Scalia]
—Justice Anthony Kennedy
Justice Sandra Day O’Connor said that precedent lay on Mr. Johnson’s side, and that Texas was arguing for a First Amendment exception to protect the flag. Justice Brennan summarized without comment the views of the two most junior justices, Antonin Scalia and Anthony Kennedy : “Agree with Sandra” and “Agree with Nino,” he wrote after each spoke.
Justice Blackmun’s notes from the same conference offer further details.
Both justices’ notes quote Justice Byron White talking about running “the First Amendment into the ground.” That could be read to support Mr. Johnson —but the Blackmun notes, which indicate preliminary votes with a + or - next to each name, show that Justice White meant just the opposite, as he voted to uphold the conviction.
Justice Harry Blackmun's notes on Texas v. Johnson
— [Reverse]
My Spence dissent
I think t[he] stat[ute] is const[itutional]
D[efendant] c[oul]d speak only wa sc t flag
Anal[agous] to Chaplinsky narrow exception
? reserved on Spence
LP [Justice Lewis Powell] wrote PC “ ” [on Spence]
Spence fax distinguishable
—Chief Justice William Rehnquist
+ [Affirm]
This is polit[ical] sp[eech]
Tex concedes symbolic sp[eech]
St[ate] may n[ot] command respect
this way
Too vague
—Justice William Brennan
— [Reverse]
We run FA into t[he] gr[oun]d
& get [illegible]
—Justice Byron White
+ [Affirm]
To ret a Tex c/a
—Justice Thurgood Marshall
+ [Affirm]
—Justice Harry Blackmun
Justice Blackmun quoted Justice Scalia verbatim: The case “makes me sick,” Justice Scalia said, wondering if “we have carried the First Amendment too far.” But under his reading of the law, Mr. Johnson committed no crime.
The Blackmun notes also reveal that Justice O’Connor switched sides after the straw poll, when she voted to strike down the Texas law as unconstitutional. Ultimately, she joined Chief Justice Rehnquist’s dissent.
“[O]ffensiveness to others”—part of the Texas law—”is a standard we have not approved,” she said in conference. “Flag aside, we have a classic case of political expression.”
pass ?
S[hould] n[ot] h[a]v[e] taken — we lose either wa[y]
Cann[ot] be objective now
————
if + [Affirm], do it on vagueness
EW, OWH all shared CJ's view
punish here for method [of] message, n[ot]
for message itself
he is n[ot] advocating flag burning generally
no agree with R — flag wld be harmed
n substantially OB, bec only US flag wd b protect
→?
unless to vagueness, wd — [Reverse]
—Justice John Paul Stevens
+ [Affirm]?
Unpleasant case
Offensiveness to others is a stan[dard]
we h[a]v[e] n[ot] approved
Fl[ag] aside, we have a classic situ[ation] o[f]
polit[itcal] expression
Shd we h[a]v[e] a narrow exception
Hard to OK Ta
→+?
—Justice Sandra Day O’Connor
+ [Affirm]
→ +
makes me sick
cann[ot] dist[inguish] btw flag & Pres
A weird way to carry this out
Hope & b[elieve] otherwise [persuasive?]
We have carried FA too far
—Justice Antonin Scalia
+ [Affirm]
reach case issue
& n go off on vagueness
evocative
flag w[ould] b[e] [unsullied?] despite opin[ion]
may well b[e] strengthened
—Justice Anthony Kennedy
6-2 is + [Affirm]
JPS [Stevens] pass
No one struggled more than Justice John Paul Stevens, who eventually became the court’s foremost liberal voice. But Justice Stevens’s values were forged by his Navy service in World War II, when he saw the nation unite around the flag. Conference notes show him wanting the case to vanish.
“We should not have taken this case,” he said; if the court hadn’t done so, the lower court ruling against the state would have stood and Mr. Johnson would remain free, but no nationwide constitutional precedent would have been set. Maybe the court could uphold the conviction by finding that Mr. Johnson was being punished not for his antigovernment views, but rather for the “method of the message.” Perhaps the Texas law could be struck down for being too vague in defining criminal conduct, rather than categorically protecting the right to burn the flag.
He voted “pass.”
In June, the decision came out—with the 5-4 majority holding that the First Amendment protected flag burning.
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Justice Brennan wrote for the court.
“Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength,” he continued.
Justice Stevens dissented. The American flag “is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations,” he wrote. “If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”
Justice Stevens, who died in July, never deviated from his position. But, speaking with The Wall Street Journal in 2011, he said it was the dissent his law clerks all hated the most. The public won’t learn what Justice Stevens wrote in his own notes for some time; those from 1989 are scheduled to become public in 2030.
Justice Scalia often cited the Johnson case to demonstrate that he sometimes voted for legal results that turned his stomach. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Justice Scalia said a few months before he died in February 2016. “But I am not king.”
Justice Scalia left no instructions for his papers; his family decided to donate them to his alma mater, Harvard Law School, where they will become available piecemeal after all the justices who took part in a particular case die. Two who voted on the flag-burning case are still alive, retired Justices O’Connor and Kennedy.
As for Mr. Johnson? The perennial protester has made flag-burning his M.O., and authorities have found other reasons to lock him up. Cleveland police, for instance, charged him with misdemeanor assault after he burned a flag outside the 2016 Republican National Convention. In September, officials agreed to pay Mr. Johnson $225,000 as part of a settlement with protesters who sued the city for allegedly violating their First Amendment rights.
Write to Jess Bravin at jess.bravin@wsj.com
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