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4.2.12
WC: 191694

My Year of Clerking For Justice Goldberg

Justice Arthur Goldberg was a man of action. Before being nominated at age 54 to the Supreme Court by President John F. Kennedy, Goldberg had accomplished an enormous amount. Unlike most of the current justices, he would have been in the history books even had he never served on the High Court.

Arthur Goldberg helped establish the profession of labor law. He represented the most important labor unions in the country. He helped merge the American Federation of Labor (AFL) with the Congress of Industrial Organizations (CIO). He helped rid unions of communist influence. He argued some of the most significant cases before the Supreme Court and other courts, including the Steel Seizure Case of 1951. He was, perhaps the most successful Secretary of Labor in history, settling one strike after another and being recognized as a legendary mediator.

The Supreme Court is not a place of action, it is an institution of reaction—to cases and controversies generated by others. It is a place of thoughtful, often solitary, meditation and research. Justice Goldberg was used to working with many people. He was accustomed to crisis. His phone had always rung. When he arrived at the Supreme Court, as he once summarized the situation, “my phone never rings.” The High Court is the loneliest of institutions. As Justice Brandeis once put it, “here we do our own work.” The Justices only occassionally interact: on the bench, in the weekly, somewhat formal, conference; and in informal one-on-one meetings, which were rare then and even rarer today. It is fair to say that Justice Goldberg was somewhat lonely, often restless and craved the active life he had left behind.

This is not to say that Justice Goldberg was not a serious intellectual. He was. He was also one of the smartest justices in history. He loved the Supreme Court. He loved the law. He loved having intense discussions with his law clerks about jurisprudence and the role of the Supreme Court. But he needed more than contemplation, deliberation and discussion. The “passive virtues,” as Professor Alexander Bickel once characterized the Supreme Court’s role in not making decisions, was a vice to Arthur Goldberg. He wanted to get things done. He too was an unapologetic judicial activist. He came to the High Court with an agenda—a list of changes he wanted to help engender.

I will never forget my first meeting with my new boss when I came to work in the Supreme Court during the summer of 1963. He tossed a certiorari petition at me from across his desk and asked me to read it in his presence. It was only a few pages long and I did. He then asked me, “What do you see in it?” I said, “It’s just another pro se cert petition in a capital case.” He said, “No, what you’re holding in your hand is the vehicle by which we can end capital punishment in the United States.” Abolishing the death penalty was the first item on his “to do” list as a justice.

My major responsibility during the first part of my clerkship was to draft a memorandum supporting Justice Goldberg’s views that the death penalty was cruel and unusual punishment in violation of the Constitution. He knew we had no chance of getting the majority to support that view—at least not yet—but he wanted to start a dialogue that would ultimately lead to the judicial abolition of the death penalty. He decided to focus first on an interracial rape case involving an African American defendant and a white victim, since almost no whites had been executed for

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