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4.2.12
WC: 191694

One day while he was hearing arguments, and I was working in the office, I received a note from
the Justice asking me whether it was required under Jewish law that an orthodox woman always
wears a hat, even while arguing a case in the Supreme Court. The Supreme Court had a rule
prohibiting wearing any head covering. But Goldberg was willing to insist that there be an
exception if there was a religious obligation. I wrote back saying that there was such a rule for
strictly orthodox women. He wrote back asking me to come into the courtroom, which I did.
When I got there I looked at the offending hat. Just as I did so, I got another note from Justice
Goldberg saying is there anything in Jewish law that requires a woman to wear such a big ugly
hat. I assured him that there was not. Nonetheless they made an exception, but Justice Goldberg
told me to discreetly inform the woman that next time she argues, she should wear a smaller hat.

Justice Goldberg also asked my advice about whether he should sit on the opening day of Court,
which fell on Yom Kippur, the holiest day of the Jewish calendar, during which all work is
prohibited. I looked at the calendar of cases to be argued that day and noted that there was a
capital case. I told him that Jewish law permitted violation of nearly all religious precepts if
human life was at stake and recommended that he call the rabbi of his congregation. The rabbi
confirmed my view and told him to sit only on that case. He did and helped save the life of the
condemned man.

The Supreme Court had a small basketball court on the fifth floor. The clerks called it “The
Highest Court in the Land,” since it was directly above the Supreme Courtroom itself. Rumor
had it that in previous years the clerks used to play basketball while the Justices were hearing
arguments, and the sound of the bouncing ball could be heard through the ceiling of the Court. A
rule was established therefore prohibiting the playing of basketball during Court sessions. By the
time I got there the games were in early evening, and occasionally Justice White, who had been a
former professional football player, participated. As a basketball player, White was a great
football player - - not much finesse, but lots of elbows. I played only occasionally, but was there
once when Justice White was in a game. He boxed me out for a rebound and, in the process of
grabbing the ball, hit me in the face with his elbow. I instinctively yelled, “That’s a foul, damn it!”
to which I quickly added, “Mr. Justice.” I was overruled by His Honor.

According to historians of the Supreme Court, the 1963-64 term was among the most significant
and innovative in the history of the American judiciary, and Justice Goldberg was at the center of
the action. He assigned me to draft the famous Escobedo opinion, which changed the law of
confessions and led to the even more famous Miranda decision. Escobedo was suspected of
killing a relative and he was interrogated without his lawyer being present, even though his lawyer
was in the police station, trying to advise him on his right to remain silent. I penned the following
words that became an important part of my legal philosophy throughout my career:

We have…learned the…lesson of history that no system of criminal justice can, or should,
survive if it comes to depend for its continued effectiveness on the citizens' abdication
through unawareness of their constitutional rights. No system worth preserving should
have to fear that if an accused is permitted to consult with a lawyer, he will become aware
of, and exercise, these rights. If the exercise of constitutional rights will thwart the

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