Taking the Stand

by Alan Dershowitz

  Justice Goldberg regarded his “one year clerks” as “law clerks for life.” After I completed my clerkship, Justice Goldberg continued to give me assignments, ranging from helping him pick future clerks (such as current Justice Stephen Breyer), to editing his speeches and articles, to helping him draft resolutions at the United Nations (most notably Security Council Resolution 242, following Israel’s victory in the Six Day War of 1967),34 to assisting in his political aspirations. He called me for help, advice, and just to “schmooze” about the state of the world, until his death at the age of eighty-one.

  Even while he served on the Supreme Court he took an interest in his law clerks, including us in his weekly Friday afternoon lunches or teas with noteworthy people. Knowing that I was interested in Israel, he invited me to meet the Israeli ambassador to the United States, Avraham Harman, as well as visiting Israeli public officials. When I went to Israel in 1970, he asked me to smuggle a carton of Lucky Strike cigarettes to Israel’s prime minister, Golda Meir, whom he had known from their earliest Zionist days in the Midwest.

  Three months after I started working for Justice Goldberg I was in his secretary’s office while she was talking on the phone to her husband, who was an officer in the U.S. armed forces. He had something to do with communications, because he told her that shots had been fired in Dallas. We turned on a small television set that had been in my cubicle ever since I had brought it from home to watch the World Series a couple of months earlier. Nothing was yet on the news. A few minutes later everyone in the world knew that President Kennedy had been shot. It was a Friday and the justices were in their weekly conference, which no one else was allowed to attend. I had been given strict instructions never to interrupt Justice Goldberg during one of these conferences, but I knew this was an exception. I went to the door of the conference room and knocked. Justice Goldberg, being the junior justice, answered and gave me a dirty look, saying, “I told you not to interrupt me.” I said, “Mr. Justice, you are going to want to know that the President has been shot.” Several of the justices immediately gathered around my TV, which, it turned out, was the only one in the entire Supreme Court building. We watched as the news got progressively worse, finally leading to the announcement that the President was dead. The chief justice asked the justices to disperse for fear that there might be a conspiracy involving attacks on other institutions, such as occurred following the Lincoln assassination. The clerks stayed behind.

  The following night, right after the Sabbath was over, Justice Goldberg asked me to drive him to the White House. He was closely connected both to the Kennedy family and to Lyndon Johnson, and the new president wanted his advice. I picked up the justice in my old Peugeot, which was filled with children’s toys, and I drove him to the White House gate. Goldberg asked me to wait for him, since the meeting would be relatively brief, and drive him home. When the White House guard looked into the car, he immediately flung the back door open and grabbed a toy gun. Nerves were tense. Later, I also drove the justice to the funeral and was with him when the news came over the radio that Lee Harvey Oswald had been shot. Goldberg exclaimed angrily, “What kind of a country are we living in!”

  Shortly thereafter, Chief Justice Earl Warren told the Supreme Court staff that he was being appointed chairman of the newly formed Warren Commission. Goldberg told me that the President had asked the chief justice to perform a patriotic duty and to convince the American public that the act was that of a lone gunman, and not the result of a conspiracy by the Communists. Warren agreed because he did not want to allow any excuses either for the return of McCarthyism or military hostilities between the Soviet Union and the United States. I later learned that Lyndon Johnson personally believed that there was a conspiracy behind the Kennedy assassination, but he handpicked the Warren Commission to ensure that even if the evidence pointed in that direction, it would be covered up in the interest of national security.

  A controversial issue during my clerkship was obscenity. I recall Justice Goldberg coming back from a screening of an allegedly obscene movie called The Lovers35 and saying, “That damn movie ought to be banned, not for obscenity, but for fraud. There were no good dirty parts.” Another case involved an erotic memoir called Fanny Hill.36 The book was not included in the record, but Justice Goldberg wanted to read it. He was embarrassed to go to a bookstore and buy it himself, so he asked me to buy a copy of the book, but not to read it. Ha!

  A man once knocked at the door of Justice Goldberg’s chambers (in those days, anybody could walk into the chambers; today, that is impossible). He told me that he had met the justice and that he was making a financial sacrifice to serve on the Supreme Court. He was starting a foundation to help people make the transition from lucrative private life to low-paying government jobs, and he wanted to offer the justice the opportunity to have his salary supplemented. When I told the justice the story, he told me to “throw the bum out.” The “bum” turned out to be Louis Wolfson, a man facing stock fraud charges. He later made a similar offer to Justice Fortas, who accepted it and lost his seat on the Supreme Court as a result.37 Justice Goldberg was far more scrupulous. One day he received a basket of fruit for his birthday. He looked at the card and saw that it was from Katherine Graham, the publisher of the Washington Post. The important case of New York Times v. Sullivan was pending,38 and Goldberg insisted that we send the basket back. I told him that I had eaten a banana from it. He insisted that I go to the fruit store and replace it before having the basket returned.

  Justice Goldberg was a deeply ethical but only marginally religious man. He did not attend synagogue regularly, though he was very active in numerous aspects of Jewish life. Every year he had a Passover Seder, to which he invited Washington luminaries. When I was his law clerk, he invited me, and I gladly accepted. Knowing that I was kosher, he arranged to have the entire Seder dinner provided by an expensive kosher caterer. At the last minute, my mother forbade me from attending a Seder other than hers, and I had to decide whose views trumped, a justice of the Supreme Court or a Jewish mother. I don’t have to tell you who won, and Justice Goldberg remained angry with me for months, saying, “All those people had to eat catered kosher food because of you, while you ate your mother’s home-cooked food.”

  One day, while he was hearing arguments, I received a note asking me whether it was required under Jewish law that an Orthodox woman always wear a hat, even while arguing a case in the Supreme Court. The Supreme Court had a rule prohibiting wearing any head covering.39 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.40 He wrote back asking me to come into the courtroom, which I did. I looked at the offending hat. Just as I did so, I got another note from Justice Goldberg, asking if there was anything in Jewish law that required a woman to wear such a big ugly hat. I assured him that there was not. They made an exception, but Justice Goldberg told me to discreetly inform the woman that the next time she argued, 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,41 the holiest day of the Jewish calendar, on which work is prohibited. I looked at the calendar of cases and noted that there was a capital case. I told the justice that Jewish law permitted violation of nearly all religious precepts if human life was at stake.42 He sat and helped save the life of the condemned man.

  A few weeks after I began to work in the Supreme Court, I was walking through the hall and needed to use the bathroom. I went to the nearest bathroom. Suddenly an arm was gently on my shoulder. It was one of the justices’ messengers. “That bathroom is for us,” he said. “Yours is over there.” He pointed. I quickly understood what was going on. All the guards, secretaries, clerks, and justices were white. All the messengers were black. The bathrooms in the Supreme Court were, as a matter of practice, segregated. This was nearly a decade after Brown v. Board of Education. I rushed
to tell Justice Goldberg.

  He was appalled not only at what I had told him, but at the fact that he hadn’t figured it out himself. He summoned his messenger, who confirmed the practice and assured the justice that his fellow black messengers liked having their own bathroom, where they could hang out during breaks. But Goldberg would have none of it. He asked me to check on whether there were, in fact, any nonwhite employees, other than messengers, on the Supreme Court payroll. I reported back that there was one: The court’s barber was a black man (who, it later turned out, refused to cut the hair of any black person, because, as he proudly claimed, he was trained to be a “white man’s barber” and didn’t know how to cut the “kinky” hair of black customers).

  Justice Goldberg immediately hired the Supreme Court’s first black secretary. He advised Chief Justice Earl Warren of the court’s de facto segregation and got him to put an end to it. His actions produced some grumbling among the white guards and the black messengers, but everyone soon got used to the new regime. (It took the appointment of Thurgood Marshall to get the barber to begin to cut the hair of a black man, but only after Goldberg told him that his own hair was kinkier than Marshall’s.)

  The Supreme Court had a small basketball court on the top floor. The clerks called it “the Highest Court in the Land,” since it was directly above the courtroom itself. The games were in early evening, and occasionally Justice White, who was 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 once 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 1963–1964 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.43 He assigned me to draft the famous Escobedo opinion,44 which changed the law of confessions and led to the even more famous Miranda decision,45 which set out the well known “Miranda warnings” (“You have the right to remain silent …”). 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 drafted the following words, which 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 effectiveness of a system of law enforcement, then there is something very wrong with that system.46

  The theme of this paragraph—the right to know of one’s rights—has pervaded my thinking and teaching ever since.47

  During that term, I also drafted opinions—some majority, some concurring, some dissenting—on trial by jury, freedom of speech, desegregation, reapportionment, immunity, and other important and changing areas of the law. There could be no better foundation for the next phase of my career—teaching law students at the nation’s largest and most prestigious law school, Harvard.

  One of the great villains of the day to all liberals was J. Edgar Hoover, the head of the FBI. On several occasions, I let my negative views about Hoover be known to Goldberg, but he never said a word. I didn’t understand why. A few years later, I asked Judge Bazelon, who smiled and said, “I probably shouldn’t tell you, but it’s important for you to know that there are no perfect heroes.” He continued, “Hoover and Goldberg got along well, because when Goldberg was the lawyer for the labor movement, he worked hard to rid the CIO of Communist influence.” I asked whether that meant he informed on Communists within the union. Bazelon replied, “I wouldn’t use the word ‘informed,’ but he worked closely with Hoover on a common goal: to rid the CIO of Communist influence.”48

  Bazelon told me that Thurgood Marshall had played a similar role with regard to the NAACP—trying to cleanse it of Communist influences.

  “That’s how Thurgood and Arthur made it to the court. If Hoover had opposed them, they might not have been appointed.”

  I was shocked. “But there have been other liberals appointed as well,” I insisted.

  “Yes, Douglas, but he was Joe Kennedy’s boy, and Hoover liked Joe Kennedy, at least back in the day when Douglas was appointed. With Hoover, it wasn’t so much what you believed as were you with Hoover or against him. It was also whether he had anything on you that he could use as leverage.”

  “What about Justice Brennan?” I asked.

  “Bill was an accident, an Eisenhower mistake. They didn’t know he would be so liberal. Eisenhower regarded Warren and Brennan as his worst mistakes.”49

  About a year after I finished my clerkship with Justice Goldberg, I received a phone call from Dorothy Goldberg, Arthur’s wife. She was sobbing. “Alan, make him change his mind.” Justice Goldberg had decided to leave the Supreme Court after three terms in order to become the U.S. ambassador to the UN. Mrs. Goldberg was very upset with her husband’s decision, but there was nothing I could say that would make him change his mind. He talked about patriotism and the need to end the war in Vietnam and insisted that he was doing the right thing.

  When I reminded him that his was the swing vote on many important issues and that he might be replaced by someone more conservative who might swing the court the other way, he assured me that President Johnson would select his friend and former lawyer Abe Fortas to fill the vacancy. “Abe will vote the same way I did,” Goldberg assured me. “I won’t be missed on the court,” he said, “but I can make a difference in ending the Vietnam War.”

  Neither of us realized at the time that President Johnson wanted Goldberg off the court precisely so that he could appoint his loyal friend Abe Fortas, whom he could count on to support him if the corruption investigation—involving Bobby Baker and Lady Bird Johnson’s ownership of radio and television stations—that was still swirling around him were ever to reach the Supreme Court. Fortas did become Johnson’s “man” on the court when it came to issues relating to the Vietnam War and soon found himself embroiled in a corruption scandal that cost him his seat.

  Five years after he retired from the Supreme Court, Justice Goldberg decided to run for governor of New York. He asked his former law clerks, including current Supreme Court justice Stephen Breyer and me, to help him in his campaign. Goldberg was a stiff campaigner, and not particularly knowledgeable about New York. Once while eating a knish at Yonah Schimmel’s on Houston Street on the Lower East Side of Manhattan, he told the assembled press how pleased he was to be in Brooklyn. A few days later an acquaintance who was a reporter with the Daily News called to have me comment on a story he was writing concerning how stiff and formal Justice Goldberg was. He said he had heard reports that he required his former law clerks still to call him “Mr. Justice.” It was true. I went in to see the justice and told him about the upcoming story. He replied, “Well it’s true, so why don’t you just confirm it?” I said, “Mr. Justice, can’t we just change it?” He said, “No, I want you to continue to call me Mr. Justice.” I replied with a compromise: “How about if we continue to call you Mr. Justice in private but we call you Arthur or Art or Artie in public?” He reluctantly agreed to be called “Arthur” in public, so long as we still continued to call him “Mr. Justice” in private. I called him “Mr. Justice” till the day he died. Needless to say, he lost the election to Nelson Rockefeller.

  Justice Goldberg always wanted me to become a judge, perhaps even a justice. I never had any interest in wearing a robe, since judging requires the kind of passivity that is not s
uitable to my temperament. I was surprised that Justice Goldberg was so insistent, since he himself had left the bench after only three years. I don’t think I would have lasted three months. In any event, I never lived my life so as to make it possible to be nominated for anything that required confirmation. I was once flattered by an article that listed some of the most talented people in America who were unconfirmable for any office. I was included on that honor roll. My friend Steve Breyer, on the other hand, was always the perfect judge, and I worked hard behind the scenes to do everything I could to help his chances of serving on the bench. I helped him get confirmed for the court of appeals and lobbied President Clinton to appoint him to the Supreme Court. On the night of his nomination, he and his wife came to our home for an intimate celebration of his assuming the Goldberg seat on the court. He has proved to be an extraordinary judge and is one of the fairest people I know.

  Justice Goldberg would have been so proud that one of his law clerks had followed in his footsteps.

  Some lawyers describe their clerkships as career-enhancing “jobs.” My clerkships were life-changing experiences, which continue to influence me to this day. There could have been no better preparation for my life as a professor at Harvard Law School—a job offered to me during my clerkship.

  Having completed my two years of clerking, I was now on my way to begin my career as an assistant professor of law. I was also completing the most transformative decade of my young life—past and probably future. In the spring of 1955 I had been a C student in a not very good high school. By the fall of 1964, I had become the youngest assistant professor in the history of the law school of the greatest university in the world. I reflected on this transformation—and the reasons underlying it—on the drive from D.C. to Cambridge.