I am reading The Burger Court and the Rise of the Judicial Right by Michael J. Graetz and Linda Greenhouse, and came across a hilarious anecdote. At the same time the Nixon administration obtained a district court injunction against the New York Times for publishing the Pentagon Papers case, the government was also pursuing a similar injunction against the Washington Post. However, unlike in New York, the district court denied the injunction. As a result, the Post expected it to be appealed (quickly) up to Circuit Justice Burger, who oversaw emergency appeals from the D.C. Circuit. Here’s what happened:
The Justice Department then went to the federal district court for the District of Columbia seeking to restrain publication by the Post. In the Post case, the court denied the government’s request. The government appealed. Fearful that the Justice Department might ask Chief Justice Burger for an immediate order restraining publication, the Post sent two reporters to Burger’s home in Arlington, Virginia, to watch for government lawyers. Near midnight, the Post reporters, who had been unable to reach Burger by telephone, knocked on his door to tell him what they were doing there. The chief justice answered the door in his bathrobe, carrying a long pistol which he held in his right hand, muzzle down, throughout the few minute conversation with the reporters, whom he told to wait down the street. The reporters wanted the Post to publish the story of Burger’s attire and weapon, but Bradlee was fearful of the cartoons that might result and antagonize the chief justice just as the paper was about to appear before him, so he killed the story.
Whenever I think of CJ Burger, all I can think about is his position that the individual-rights model of the 2nd Amendment is a “fraud.” I’m glad to see at least he was a gun owner, who believed in defending himself against rapacious reporters from the Washington Post.