Clerking for Justice Goldberg

Stephen Breyer

Sometime after his retirement Justice Goldberg, at home in the midst of a blizzard, heard a television reporter talk about a hospital in Northeast Washington that needed special, emergency equipment. Within the next half hour he had remembered once being at a nearby Army base that should have the equipment, he had telephoned the Secretary of the Army, and he had made certain the equipment was on its way to the hospital. That is what he was like --imaginative, intelligent, practical, and immediately ready to put his talents, connections, and resources to work in the service of a good cause.

No one could doubt Justice Goldberg's intelligence. (President Kennedy told a friend that he was "the smartest man lever met.") Nor could anyone doubt his strong social conscience. He devoted his career as a labor lawyer to working men and women, whom he understood and never forgot. It is equally correct to call him an "activist." Within a few months of his becoming Secretary of Labor, he had started "equal opportunity" and "minority hiring" programs, secured job retraining and minimum wage laws from Congress, and intervened successfully in several labor disputes, including the Metropolitan Opera strike. ("How could any Secretary of Labor have turned down a personal request from Mrs. Kennedy?" he asked.) Indeed, his successor in office, Willard Wirtz, suggested that it was as Secretary of Labor, not as Supreme Court Justice, that he was "in his natural element of constant social and political and economic ferment and controversy, playing more than at any other time in his life his natural role of dynamic activist."

What was it like clerking for this active, practical, humane man during one of the three years he served as an Associate Justice of the United States Supreme Court?

For one thing, we saw a strong and imaginative legal mind at work. Justice Goldberg had an uncanny ability to grasp immediately the practical heart of a legal problem, shaping the legal material at hand so that it would better serve the law's basic human purposes. Consider a good example from his first Term: The New York Stock Exchange had suspended Mr. Silver without a hearing. Mr. Silver sued the Exchange under the antitrust laws. The Court was asked to examine two different sets of statutes--securities statutes and antitrust statutes-- and to decide the extent to which they exempted the Exchange from the antitrust laws. Justice Goldberg noticed that the statutes were silent about the exemption's scope. He recognized that Mr. Silver's problem really was not "antitrust," but, in fact, was "fair procedure." And, he read the exemption as freeing the Exchange from antitrust liability but only if it used fair procedures--a reading that effectively reconciled the statutes, not simply with each other, but also with basic principles of procedural fairness that underlie much of law.

For another thing, we learned a highly practical view of the Constitution. He saw the Constitution as protecting basic liberties in a practical way, a way that permitted achieving the ideal without unduly interfering with the workings of government. Thus, he wrote, in his second Term, that the police have a duty to tell an arrested person about his rights, to remain silent, to consult a lawyer. He knew from his own experience that, without such warnings, the Constitution's promises would have proved meaningless, practically speaking, to many of those he had once represented. Soon after, he would also write, upholding the constitutionality of a search warrant, that the "Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract.... [A]ffidavits for search warrants.., must be tested and interpreted.., in a common-sense and realistic fashion."

Neither should it surprise anyone that he was fully convinced the Constitution protected more "fundamental liberties" than those listed in the Bill of Rights. After all, the Ninth Amendment to the Constitution specifically said that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." More important, how could a document survive the ages, he wondered, if it were limited to the protection of the specifically enumerated rights? Suppose, he asked us, that the government forced husbands and wives to live apart. Would the Constitution offer the family no protection? In the Connecticut birth control case, he wrote:

In addition, we learned about how government works, for Justice Goldberg had endless experience of government and its institutions, toward which he was respectful, but not necessarily reverential. He loved to repeat (later on) how he once was sitting down to lunch with CIA Chief Alan Dulles, at a Washington club, when an intelligence officer rushed into the room with a sealed envelope. Dulles found another envelope inside, and, after opening yet a third, he turned to Justice Goldberg and asked, "Do you know what this says?" "Yes," replied the Justice, "I do. It says that De Gaulle has just died." "How ever did you know?" asked Dulles. "I heard it on the radio on the way over to lunch." Working for this energetic, enthusiastic, highly principled man (who would not let a lawyer buy him coffee) was also great fun. He was happy on the Court; indeed, he was in his element. He talked to us about cases, about law, and about decisions. Over lunch on Saturdays, he talked about politics and the civil rights movement and foreign policy. He invited us to his annual, totally ecumenical, Passover Seder, where Justices and labor leaders, and his family, and old friends would sing more than they would pray. ("I'm not certain George Meany should be singing so many Irish ballads at a Jewish Seder," Mrs. Meany apparently said "Why not?" would have been the Justice's reply.) He then, and later, set us the example, as Secretary Wirtz described it, of "perpetual energy in constant motion leading to endless achievement."

Finally, and perhaps most important, he made us his friends. The year was but the beginning of a lifelong commitment. We stayed in touch with him when he went on to the United Nations, when he ran for Governor of New York ("Please don't tell me I look pompous on television," he told us, "how can I change what I look like?"), when he went to the Belgrade Conference on Human Rights. We knew he would never stop working for the causes in which he believed. We were not surprised to learn, for example, that he had helped Cardinal 0' Connor convince the Army to help create standards of "human rights" for enlisted men, or that he was chairman of a committee to right the wrongs done to Japanese citizens of America during World War II, or that he was about to send a letter explaining to the press how the Helsinki accords were truly important and could form the basis for a more stable, humane Europe. He followed our lives and those of our families with interest; he called us with help and advice, just as he would call advise, or help, so many others. One of Justice Goldberg's closest friends, Monsignor George Higgins, described how a few weeks ago the Justice, when the Monsignor's apartment heating system broke down, "ordered" him to move into his own house. He said that the Goldbergs proved that there are no limits, quantitative or otherwise, on friendship. Similarly, all his clerks quickly and permanently became convinced that there were no limits on the respect in which we held the Justice nor upon the devotion for him that we shall continue to feel.

1. Griswold v. Connecticut, 381 U.S. 479 (1965).