Anthony Lewis: what he learned at Harvard Law School.

• Author: Caplan, Lincoln
• Position: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis

Anthony Lewis was a columnist for The New York Times for the unusually long tenure of thirty-two years. (1) When he retired in 2001 at the age of seventy-four, Bill Clinton awarded him the Presidential Citizens Medal for setting "the highest standard of journalistic ethics and excellence" and for being "a clear and courageous voice for democracy and justice." (2) Lewis ended his last column by paraphrasing one of his heroes: "The most important office in a democracy, Justice Louis Brandeis said, is the office of citizen." (3) Lewis' point was that the American commitment to the rule of law and the belief in reason on which it rests both depend on citizens standing up to rulers who abuse power by exercising it unreasonably--arbitrarily and unjustly. (4)

Lewis sounded like a classic outsider, who believed that his most important job as a journalist was to be a stand-in for citizens as an adversary of the government. In America today, that is the idealized stance for a journalist. Glenn Greenwald, the former columnist for The Guardian who co-founded the website called The Intercept, is a prominent example. (5) He was responsible for The Guardian US sharing the 2014 Pulitzer Prize for Public Service with The Washington Post. (6) The Guardian's award based on Greenwald's work, the Pulitzer Prize Board said, was for the paper's "revelation of widespread secret surveillance by the National Security Agency, helping through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy." (7)

In interviews about this work based on massive leaks from the former N.S.A. contractor Edward Snowden, Greenwald has avowed that in the age of the surveillance state, with the United States government eliminating much of what privacy once entailed, the role of the press is to be confrontational. (8) The press's duty, he said, is to call-out government lies, expose unwarranted secrecy, and avoid the deplorable habit of "the establishment media" (9) bowing in "glaring subservience to political power." (10) It is the press's role, in other words, to be combative. When it is, the press provides the check and balance against the executive branch that neither Congress nor the judiciary have done anywhere near adequately. It helps reverse the anxiety-fueled swing of the pendulum toward police-state-like overprotection of national security, pushing the pendulum back toward the constitutionally guaranteed protection of individual rights.

Lewis often fit this model: he was a formidable critic of the government, in particular of its penchant for secrecy. (11) He was an insistent defender of citizens against government encroachments, especially of their right to privacy. (12) He was indignant about brutality that government sometimes inflicted, as when southern states used police to beat up people protesting against segregation, and about fear that government sometimes instilled in citizens to manipulate them, as in the period after the attacks against the United States on 9/11, (13) Lewis condemned those wrongs and sought to right them through his journalism. He was a liberal who pushed for liberal causes: liberty, equality, and the rule of law; fair and open elections; human rights; and freedom of expression and religion. (14)

Yet Lewis' journalism was fundamentally not adversarial: it was defined by what he was for, much more than by what he was against. As a member of the press, in a remarkable contrast to today's idealized stance, he felt a duty to explain and stand up for the constitutional system and the government's central part in it, as well as to challenge when the government violated American laws and values. (15) That's why it was apt that the presidential medal was given to him for being "a clear and courageous voice for democracy and justice." (16)

The story of how he developed that voice begins as an ever-receding footnote to history, but it is much more than that. Ten presidents ago, when Dwight D. Eisenhower was in the White House, going back almost one-fourth of the way through American history, the Times sent Anthony Lewis to study law at Harvard for one academic year, in 1956-57. (17) While he received no degree, Lewis later summed up his experience like this: "The Harvard Law School opened my eyes to the law ..." (18)

That year--in an era of giant change for the Court--Lewis learned about the most challenging and important ideas then being debated by scholars who specialized in the Constitution and the Supreme Court. Those ideas reinforced his liberal sympathies and ideals, but they also changed his thinking fundamentally. They led him to adopt a traditionalist view about the importance of understanding the American constitutional system and how (in his words) "history, law, and culture contribute to the process of defining what the Constitution commands." (19)

Those ideas also helped Lewis establish his distinctive stance as a journalist: he was fastidiously independent, yet passionately invested in the American project. He was both an outsider and an insider. He understood better than any other journalist why it was indefensible for the government to prosecute any journalist under the Espionage Act, as the Obama administration has done, unless the journalist was actually a spy. (20) But Lewis also understood that journalists should not get blanket immunity from subpoenas in criminal cases, since they are subject to the law like everyone else. (21) It is their job to hold the government to its principles, but that does not give journalists license to hide behind the law if they do their job badly, in an effort to cover up a mistake of no benefit to the Republic and of potentially great harm to an individual about whom they had been mistaken. (22)

Lewis had exquisite skills as a journalist, but in the sense that British universities call law students lawyers, he was also a lawyer with remarkable skills. He loved both professions and believed that they were bound together: the press is integral to the process of governance because of its quasi-constitutional role under the First Amendment; the law is essential because it is the foundation of American government and is called on to resolve so many fundamental issues of national politics and social policy.

His reporting and writing about the law transformed legal journalism. He became American law's leading liberal tribune, but even more significantly, the country's most lucid and influential teacher about the workings of its constitutional system. The foundation of his journalism was the conviction that the effective functioning of the system of government, especially the courts, is essential to the survival and the health of the American Republic. He was a great journalist and the country's greatest journalist about legal affairs. It is an honor to be included in this symposium about him following his death in 2013 at the age of eighty-five. (23)

"A Scholar Who Can Run"

Lewis was twenty-nine when he went up to Harvard, (24) already a star reporter with an ardent interest in stories involving law and justice. The year before he started law school, he had won a Pulitzer Prize for National Reporting, (25) for a six-part series (26) of articles in The Washington Daily News. (27) According to the prize committee, the articles "were adjudged directly responsible for clearing Abraham Chasanow, an employee of the U.S. Navy Department, and bringing about his restoration to duty with an acknowledgment by the Navy Department that it had committed a grave injustice in dismissing him as a security risk." (28)

In 1953, when Senator Joseph McCarthy's fear-mongering campaign was at its peak to brand dissenters as traitors and force them out of the United States government under the guise of fighting Communism, Chasanow was dismissed based on charges by an accuser who was never identified. (29) The Lewis series exposed this wrong and led to highly publicized hearings where the Navy produced no evidence to support the charges. (30) Chasanow was reinstated. (31) The Secretary of the Navy acknowledged injustice through an official apology. (32)

Lewis went to Harvard as a Nieman Fellow to prepare for covering the Supreme Court, a very different kind of assignment. (33) Paul Freund was a Harvard Law School professor and an eminent scholar about the Court and the U.S. Constitution. (34) He wrote that the Court then, "despite its pivotal role, has been by all odds the least adequately and intelligently covered of all government departments." (35) In retrospect, that isn't all that surprising. By the time Lewis arrived at Harvard Law School, the U.S. Supreme Court building was just twenty-one years-old. (36) Until October of 1935, the Court had heard argument in the basement of the U.S. Capitol and--because they had no courthouse--the justices worked at their own homes. (37) In the most basic way, the Court had been difficult to cover because it was a phantom institution without a home.

With a concerted nudge from Justice Felix Frankfurter, the Times' James Reston, who was the paper's Washington Bureau Chief, had decided that it was time for the Times to have a reporter who specialized in the Court. (38) He chose Lewis, who he had hired in 195 5. (39) Reston said Lewis was "that rare and precious commodity in a newspaper office: a scholar who can run." (40)

At Harvard, Lewis took Freund's course in constitutional law and learned about what the professor regarded as the conundrums of the federal system: the tensions among the executive, legislative, and judicial branches; the intertwined yet distinct powers of the federal and state governments; the layering in cases of technical, conceptual, and human issues; and the competing principles in every important constitutional question. (41) The course had a lasting effect on Lewis. Freund became a regular sounding board for him when he wrote about the Supreme...