Erwin Griswold argued more cases before the Supreme Court than almost any lawyer of his century, ran Harvard Law School for a generation, and served as Solicitor General under two presidents. But the most instructive thing he ever did may have been to stand up, years after his most famous case, and admit that he had been wrong about it.
Griswold was a fixture of American law for half a century. He was dean of Harvard Law School for more than twenty years, shaping generations of lawyers, and then he became Solicitor General of the United States, the government's chief advocate before the Supreme Court, serving under Presidents Johnson and Nixon. He argued case after case at the highest level, a lawyer of enormous skill and standing, the kind of advocate other advocates studied.
His most famous case is one he lost. In 1971, when the New York Times began publishing the Pentagon Papers, the secret history of the Vietnam War, the government tried to stop it, and Griswold was the lawyer sent to the Supreme Court to make the case. He argued that publication would cause a grave and immediate danger to the security of the United States. The Court disagreed and ruled for the newspapers, in one of the most important press-freedom decisions in American history. Griswold had made the government's best argument, with full skill, and the answer was no.
That is where most accounts stop. The part worth remembering came later. Years after the case, Griswold wrote publicly that he had come to believe he had been wrong, that he had never seen any real evidence the publication harmed national security at all, and he urged the public to treat the government's demands for secrecy with skepticism. The man who had argued for suppression, at the height of his authority, looked back honestly and said the danger he had warned of had not been real.
There are two lessons here, and they cut in different directions. The first is about the job. Griswold's task as Solicitor General was to make his client's strongest lawful argument, and he did, ably, even in a case he would later doubt. That is the advocate's role, and there is honor in doing it well. But the second lesson is the deeper one. The willingness, later, to say plainly that the alarm had been overstated, that is a kind of integrity most people never manage, because it costs pride to admit that the thing you argued with total conviction was not so.
For a trial lawyer, Griswold is a caution and a model at once. A caution, because he is proof that a brilliant advocate arguing with complete confidence can still be wrong, which should make you humble about your own certainty and skeptical of the other side's. And a model, because the measure of a lawyer is not only how hard he fights but whether he keeps his honesty intact while doing it, and whether, when the evidence turns, he can face it. Conviction is a tool. It is not the same thing as being right, and the good lawyer never confuses the two.
Griswold died in 1994, remembered as one of the towering lawyers of his age, and remembered too for that rare second act, the public reckoning with his own most famous argument. It is a small thing and a large one. In a profession built on advocacy, on making the strongest case for a side, he showed that the highest skill is still married to a duty to the truth, and that the bravest thing an advocate can sometimes do is admit, out loud, that he got it wrong.
Erwin N. Griswold (1904 to 1994), dean of Harvard Law School from 1946 to 1967 and Solicitor General of the United States from 1967 to 1973, who argued the government's unsuccessful case to enjoin publication of the Pentagon Papers in New York Times Co. v. United States (1971) and who wrote years afterward that he had never seen evidence the publication harmed national security. Considered here for the craft of advocacy and the integrity behind it. This is general information, not legal advice.
