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Peter Edelman On Clerking for Justice Goldberg:
The Washington Lawyer magazine has a very interesting interview with Georgetown lawprof Peter B. Edelman that includes reflections on clerking for Justice Goldberg in 1962-63:
What was Justice Goldberg like?
He was a wonderful person. Very warm. He treated his law clerks like family. Working for him was an eye-opening experience. His first question in approaching a case always was, "What is the just result?" Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of "neutral principles" that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.

What year were you at the Supreme Court?
I was there for the term that began in October 1962.

Did you have a favorite case?
The case I remember best is Rusk v. Cort, in which the government had stripped Dr. Joseph Cort of his citizenship on the grounds that he failed to return to the United States to respond to a draft notice in 1952 during the Korean War. The question at issue was whether this was constitutional, and by a vote of 5--4, the Court ruled that it was not. Justice Goldberg wrote the opinion, which I helped draft. Six years later, my wife and I were traveling through Czechoslovakia on our honeymoon, and I looked up Dr. Cort, who resided in Prague. I thought he would be pleased with the opinion of the Court, which said that his citizenship could not be taken away. But he was not at all grateful. He told me that if he went back to the United States he could still be prosecuted for avoiding the draft. I confess I had not thought through the real-life meaning of the decision. I learned a lesson that day.
Hat tip: Ed @ Bench Memos.

  UPDATE: The rest of the interview is also quite interesting, including this recollection of Justice Goldberg's run for New York governor in 1970:
Then in 1970 Justice Goldberg decided to run for governor of New York, and I was asked to be the issues director for the campaign. My relationship with Justice Goldberg was lifelong, and he was a wonderful mentor and friend, but he was also a terrible candidate. He had been appointed to every job he'd had in his life, and running for office was an art he never mastered. Once when we were campaigning in upstate New York, someone asked him, "You've had all these jobs—you've been Secretary Goldberg, Ambassador Goldberg, Justice Goldberg—and I was wondering what's your favorite title?" Any candidate worth his salt as a politician would say, "Oh, just call me Arthur." But Goldberg couldn't do that. He let the questioner know he preferred to be addressed as "Justice Goldberg." I shook my head in disbelief. I knew then that we were in serious trouble.
Clayton E. Cramer (mail) (www):

His first question in approaching a case always was, "What is the just result?" Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent.
This explains a lot about Goldberg's historically ignorant concurring opinion in Griswold v. Connecticut (1965), in which Goldberg used the Ninth Amendment, incorporated through the Fourteenth Amendment, to strike down a very stupid law. The problem, of course, is that the Ninth Amendment was a limitation only on the federal government (not the states), and even the privileges and immunities clause was only supposed to impose the first eight amendments on the states.

If you think there's something really neat about a judge using his own personal view of "What is just?" to decide the outcome of a case--consider what would happen in an alternative universe where the Rev. Fred Phelps wasn't disbarred, and ended up on the bench.
4.14.2008 11:41pm
George Weiss (mail) (www):

His first question in approaching a case always was, "What is the just result?" Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent.


no. no legal realism on the supreme court at all
4.14.2008 11:42pm
Just Saying:
His first question in approaching a case always was, "What is the just result?" Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent.

Good lord. I cannot think of a more damning indictment for a Supreme Court justice.
4.14.2008 11:52pm
Displaced Midwesterner (mail):
Well, I think if he always approached a case by asking, "What is the unjust result?", that would be a little more damning.
4.15.2008 12:26am
Mark H.:
Heck, I'm totally ignorant to the inside game, but isn't asking "What is the just result" prior to "working backward" (and worse, prior to examining legislation and past case law) to achieve same, imply (rather dramatically) a finding of personal bias as to the wished for result; then going on to search for cases to support that view to the exclusion, or at least to the detriment, of others that don't?
4.15.2008 12:32am
OrinKerr:
Mark H.,

Yes, indeed it does.
4.15.2008 12:46am
Fearless:

If you think there's something really neat about a judge using his own personal view of "What is just?" to decide the outcome of a case--consider what would happen in an alternative universe where the Rev. Fred Phelps wasn't disbarred, and ended up on the bench.


I have a better idea. Why not imagine a real world scenario. You know, like Justices that can actually be confirmed by the Senate.
4.15.2008 12:53am
Fearless:
Ed Whelan writes:


Ah, the good old days … when liberal judicial activists were candid—at least with themselves and their close associates—about what they were really up to.


I guess liberal judicial activists were once more candid. That is, they were once quite different than Justice Scalia at his confirmation hearings.
4.15.2008 1:02am
OrinKerr:
Fearless,

i don't understand; what are you arguing?
4.15.2008 1:14am
Brian G (mail) (www):
The thing I always like about him is that he retired long before he had to. I wish others would follow his lead.
4.15.2008 1:34am
Redlands (mail):
What a taskmaster. He could have made it so much easier on his law clerks. Coin flip, work backward from there.
4.15.2008 1:41am
Displaced Midwesterner (mail):
Orin,

I could be wrong, but I'm guessing Fearless is arguing that Scalia does the same thing Goldberg did-determine the result he wants, and then find a way to justify it. Only, so the argument goes, Goldberg and other old liberal justices were at least honest about that being their approach, whereas Scalia claims he is merely neutrally applying the law.
4.15.2008 1:41am
TerrencePhilip:
Six years later, my wife and I were traveling through Czechoslovakia on our honeymoon, and I looked up Dr. Cort, who resided in Prague. I thought he would be pleased with the opinion of the Court, which said that his citizenship could not be taken away. But he was not at all grateful. He told me that if he went back to the United States he could still be prosecuted for avoiding the draft. I confess I had not thought through the real-life meaning of the decision. I learned a lesson that day.

This made me chuckle. Professor Edelman sounds like he is being polite, and a little self-effacing. Law clerk Edelman was probably too busy to think about the question of Cort's continuing criminal liability (it had no consequence to his work), but did Cort think that retaining his citizenship would make his criminal problem magically go away?

Cort sounds like a colossal jerk. I guess he didn't need to tearfully thank Edelman for his contribution to justice but he appears to have taken the opportunity to unload on someone who had no way of helping him but was forced to listen to him bitch; they let him keep his citizenship and he's simply pissed off that draft dodging is still a crime! I'm guessing the lesson Edelman learned while listening to Cort's rant is "no good deed goes unpunished;" either that or he instantly realized he wanted no part of private practice.
4.15.2008 1:56am
OrinKerr:
Displaced Midwesterner,

I suppose that's a possible interpretation of what Fearless has in mind; hard to tell.

FWIW, it seems worth noting that, as far as I know, Justice Goldberg did not publicize this approach. Note that this is the recollection of a law clerk 45 years later about what the Justice said in confidence to his law clerks, not what the Justice said in public or during his confirmation hearings.
4.15.2008 1:59am
NI:
I'm not sure trying to achieve a just result is as bad as all that. There are a great many instances in which the Constitution, like the Bible, is wide open to interpretation. Perhaps remembering that real people are going to suffer real harm isn't a bad thing.
4.15.2008 2:01am
OrinKerr:
NI,

The difficulty, of course, is that there are always different senses of what justice requires, and what harms are. That's the rub: One person's justice is often another person's injustice, and pursuing justice sometime requires picking one person's version over another's. How do you choose which person's version of justice is the right one?
4.15.2008 2:13am
Dave D. (mail):
...Real people did suffer real harm; they thought they were getting a Justice who would weigh the law but they got a fella who was a fixer.
4.15.2008 2:19am
NI:
Orin, it's true that there are times when "justice" is wide open to interpretation as well, but I'm not convinced there are that many of them. I suspect even people who believe Kelo and Raich arrived at the correct answer to what the Constitution means nevertheless think Kelo and Raich got badly screwed.

However, if you want a bright line, balance the harm to Kelo if she loses against the harm to the city/developer if they lose. Balance the harm to Raich if she loses against the harm to the feds if they lose. In both cases you have individuals who will suffer catastrophic personal loss (one economic; one to the only thing that appears to be keeping her cancer symptoms in check). On the other side, a developer won't be able to collude with the city to get rich by taking someone's property, and the feds won't be able to piously allow the deathly ill to suffer for the sake of their temperance morality. Whether or not those cases were a correct reading of the Constitution, they were by no means "just" decisions in any meaningful sense of the word. If you have a contrary argument, I'm all ears.
4.15.2008 2:25am
BGates:
NI - let's solve the housing crisis by this harm-balancing test. On one side there's an individual who will suffer the catastrophic loss of his home. On the other, a multibillion dollar corporation which stands to lose maybe three hundred thousand. Without getting in to law and stuff, it looks like the court should always rule against foreclosure. In fact, since the judges are going to start with their own sense of the just outcome, what good are laws and legislatures in the first place?
4.15.2008 2:41am
OrinKerr:
NI,

Sure, that's easy. Here's the contrary argument.

The issue in Kelo is whether the government should have to pay homeowners full market value for their property or whether a holdout homeowner should be able to block government action for no reason at all. On balance, the just result is that the homeowner should be paid fair market value; this will encourage more development and provide more jobs for families trying to feed and clothe their children.

In Raich, the question was whether pedophiles and drug dealers should be able to escape the FBI. Rejecting Raich's lawsuit provides the underpinning for the federal government's power to prosecute pedophiles and child molesters who are often caught with only evidence of intra-state molestation. Raich's losing probably results in hundreds or even thousands of fewer children being sexually molested.

(I should add that these responses represent the contrary justice arguments, not that they are arguments I agree with or that I think are relevant to any constitutional questions.)
4.15.2008 2:42am
e:
When people talk about "justice" at my law school, it rarely seems to include equal treatment for both the warthog and baby seal litigants. It rarely seems to consider that the deep pockets litigant often employs and serves many no pocket individuals.

No, I've been taught that "justice" is about the emotional story rather than a uniform and predictable court system with rules which apply equally to all. "Justice" means that we can always find someone to blame for the miseries of life.
4.15.2008 2:42am
NI:
I think BGates and S are both missing the point that there is a significant difference between using "justice" as a sword or as a shield. There's a huge difference between "stop doing nasty things to me" and "you ought to do good things for me."

As for Orin's Raich argument, when a case comes along in which the state courts are unable to prosecute a pedophile and the pedophile will walk unless the feds are able to assert jurisdiction over intra-state conduct, then the court can resolve that question. As for Kelo, even accepting your argument's premise, the Constitution doesn't require fair market value; it requires just compensation. What is just compensation for being uprooted from a home that has been in the family for generations, that has all kinds of memories, and put into a real estate market where you're not going to find anything comparable for what the state gave you?
4.15.2008 2:52am
Mike& (mail):
Interesting that he was so candid.

Unfortunately, excerpts like Kerr quotes just degenerate into a game of "Gotcha!" People who hate abortion will hold that quote up as an example of liberal "judicial activism." Shots are fired, and thus others will (accurately) note Scalia's opinions in Raich and Bush v. Gore. Others will note that a big gun in conservative circles praised Chief Justice Rehnquist for voting not as he felt the law should require him to in Dickersen - instead voting in a way that would allow him to manipulate the law. Three cheers for gamesmanship.

On this issue, it just doesn't seem that the dialogue is moving forward. People just take sides and close their eyes. Those liberal justices are wily activists. Conservatives, on the other hand, merely interpret the law. Counter-examples are to be ignored.

I wonder if this game of "Gotcha!" will ever get old?
4.15.2008 2:57am
OrinKerr:
NI,

Note that Justice Goldberg, who was committed to justice, would almost have certainly voted along with the majority in both Kelo and Raich. QED.
4.15.2008 3:06am
Mike& (mail):
I'm not sure trying to achieve a just result is as bad as all that. There are a great many instances in which the Constitution, like the Bible, is wide open to interpretation.


Yep. And it's not like, on ambiguous questions, a justice can just say, "Heck, this could go either way. I'm not going to decide the case." Or, "This is a new case. I'm not sure what the answer is. I abstain."

Plus, the Supreme Court is not legally bound by precedent. No law says they must abide by precedent. For prudential reasons, they might do so. But, again, they have the right and the power to re-write the law at will.

So something is guiding their hands. What is that something? Probably a "sense of justice" or desire to shape society. Judges decide cases based on their own biases and construct a legal reality according to their own frames.

If this were not the case, then someone could write the next Great American Law Review Article saying, "Justice X applies [insert principle] consistently in every case." If it were just objective legal principles at play, such an article would be easy to write.

Yet that article has never been written, even though it would be a blockbuster. There's a good reason for that: There is much more at play than The Law.
4.15.2008 3:07am
Mike& (mail):
NI: Here is what your discussion with Kerr illustrates. You have arguments. So do I. Can you really say which one is Justice? Do you have a book or something? ;-)

The fact that reasonable arguments exist on both sides indicates that the "just" result just might not be so easy to decide.

Then again, I don't think the legal result was easy to find, either. Both sides had good arguments, and though I wish the holders had been otherwise, I really couldn't call someone a crank for agreeing with them.
4.15.2008 3:12am
Mike& (mail):
As for Kelo, even accepting your argument's premise, the Constitution doesn't require fair market value; it requires just compensation.


But that is a legal argument. Kerr's argument went toward justice. I tend to agree with the position that it's unjust to deny jobs to many people because one person has an emotional attachment to his home.

Justice, in my view, may require the greatest good for the greatest number. Thus, on justice grounds, Kelo was an easy case. Tear the home down and create jobs for many.
4.15.2008 3:15am
Mike& (mail):
And, of course, we can play this game: Is it just to disregard the law?

Some might say that if you are committed to justice, you must do what the law requires. Thus, there is no dichotomy between law and justice. They are one-in-the-same.

But this is not my blog, so I've typed more than enough.
4.15.2008 3:19am
U.Va. 3L:
Orin wrote:


FWIW, it seems worth noting that, as far as I know, Justice Goldberg did not publicize this approach. Note that this is the recollection of a law clerk 45 years later about what the Justice said in confidence to his law clerks, not what the Justice said in public or during his confirmation hearings.


Goldberg didn't publicize it, I suppose, but it's also not like it was unknown. In 1963 (I believe that was the year--it was whatever year Alan Dershowitz clerked for him), Goldberg sent a memorandum to the conference regarding several death penalty appeals. In the memo, he argued that the death penalty should be done away with as cruel and unusual punishment. Anticipating the counter-argument that its near-universal legality in the US was good evidence that the public didn't think it cruel and unusual, Goldberg further argued that it was the Court's job to be a trailblazer for public opinion, leading the nation down the right path. The memo has long been available to the public in (among other locations) the Douglas, Black, and Warren papers at the Library of Congress.

Hmm. I started this comment as a response to Prof. Kerr, but I guess it's morphed into an example of "Goldberg being Goldberg," to steal a phrase. Oh well. :)
4.15.2008 3:22am
NI:

But that is a legal argument. Kerr's argument went toward justice. I tend to agree with the position that it's unjust to deny jobs to many people because one person has an emotional attachment to his home.

Justice, in my view, may require the greatest good for the greatest number. Thus, on justice grounds, Kelo was an easy case. Tear the home down and create jobs for many.


I never said judges should ignore clear textual mandates and completely make stuff up out of whole cloth. Where there is a textual mandate -- in this case, just compensation -- a judge should follow it. It's where there is no textual mandate, or where the text can be interpreted numerous ways, that I think they need to pay attention to the end result.

Those people who don't have jobs don't have a right to a job in the same sense that a person who owns a house has a right to a house. Any more than a child in need of support has the right to latch on to the nearest millionaire and demand child support. Most of the time, justice requires leaving people alone.
4.15.2008 6:54am
Arkady:

The difficulty, of course, is that there are always different senses of what justice requires, and what harms are. That's the rub: One person's justice is often another person's injustice, and pursuing justice sometime requires picking one person's version over another's. How do you choose which person's version of justice is the right one?


Quite. However, my sense of the debate is that many conservatives believe that this Entscheidungsproblem of jurisprudence is side-stepped by recourse to some form of originalism. Justice need never be an issue.
4.15.2008 8:30am
darelf:
Wow. As a complete outsider to the legal arena, any illusions I had (what little there were) are now permanently shattered.

As just a regular, normal, everyday guy; I've always seen justice as a universal truth, and that there is always one achievable and knowable correct decision for every dispute.

Darn.
4.15.2008 9:48am
Just Saying:
Darelf-- The Court's jurisprudence is much, much better when it comes to statutory construction; I am consistently impressed with how predictable and common-sense the results are (I'm in a code-based practice). I sometimes wonder if part of the reason the legal profession is held in low regard is because the public's perception of what the Court is centers almost entirely around constitutional law, where it's frequently hard to escape the impression that judges frequently legislate from the bench in ill-defined areas.
4.15.2008 9:56am
SeaDrive:
I so glad to hear the enlightened view that the Supreme Court should operate without regard to justice. I do agree completely with the view that "justice" is subjective.

But are there not many clauses in the Constitution, and many laws, and many prior decisions that have frame the consensus of what "justice" is? And might not the question "what is the just result" be a illuminate what law might apply in the case at hand?
4.15.2008 10:02am
Anderson (mail):
Much ado about nothing, at least insofar as the Goldberg quotation goes.

Everyone is ignoring the second part. He started with "what is the just result?" and *then* "would work backward from the answer to that question to see how it would comport with relevant theory or precedent."

We don't see the rest of the train of thought, but there is nothing wrong with that approach, provided that one is open to correction if and when the "just result" does *not* comport with relevant theory or precedent.

Of course, sitting on a court of last resort, Goldberg was in a position to argue that evidently unjust "theory or precedent" should be changed; but there is no reason to *assume* (as commenters seem to be doing) that Goldberg didn't ever let the state of the law as he found it affect his result.

Also, as noted above, cases that get to the SCOTUS are more likely than not to be undecidable by existing precedent, which makes an interest in "the just result" entirely appropriate.

But even for a district-court judge, I don't see that there's anything wrong with starting from one's intuition and then checking it out against the law. Even mathematicians and physicists can do that -- why not judges?
4.15.2008 10:09am
NI:
Darelf, I hate to be the one to tell you there's no Santa Claus, but there are three great lies of our time:

1. The media is liberal;

2. George Bush is conservative; and

3. Judicial objectivity.

And there's no Easter Bunny either. I made stew out of him last Easter.
4.15.2008 11:00am
OrinKerr:
NI writes:
I never said judges should ignore clear textual mandates and completely make stuff up out of whole cloth. Where there is a textual mandate -- in this case, just compensation -- a judge should follow it.
But why? Whatever happened to justice?
4.15.2008 11:15am
mga (mail):
Speaking of clear textual mandates, my copy of the Fifth Amendment says property shall not be taken for "public use" without just compensation, the necessary implication being that property shall not be taken at all for something other than a public use. In Justice Stevens' world, "public use" really means "public purpose" and raising more tax revenue or encouraging growth is a public purpose. Thus is the plain text of the Constitution amended by judicial fiat.
4.15.2008 11:30am
NI:

But why? Whatever happened to justice?


Because it's not an either/or proposition. Ideologues of both the right and left see the world in black and white, but it's actually mostly shades of gray.

Sometimes the law will require a judge to perform an injustice; if that's really what the law requires and there's no getting out of it, that's life.

But a lot of times there are multiple plausible interpretations of the same text. Speaking in general, one of the things I find most disappointing about conservative judges is their tendency in such cases to adopt the interpretation most likely to hurt a little guy. It's one thing to hurt someone because you have to; it's another thing entirely to hurt someone in the exercise of your discretion.

I once read a piece that was intended to be satirical on the "son of a bitch rule". Briefly, if someone comes to the bar seeking justice, under the SOB rule the judge is supposed to withhold it unless the law leaves him no choice. As they say, many a truth is spoken in jest.
4.15.2008 11:51am
OrinKerr:
NI,

You are now arguing a position quite different from what I thought you were arguing. Your position now is what I would call the standard account, widely shared by almost everyone in the legal system. That is quite different from the Goldberg position that I thought you were defending. Maybe the whole discussion is premised on a misunderstanding.
4.15.2008 12:23pm
NI:
Orin, if I wasn't clear I apologize. My original comment was that the Constitution was wide open to interpretation, which in fact it is, and so picking the interpretation that achieves a just result is not a bad thing.

Your follow up is absolutely correct that there isn't universal agreement about what justice is, but that doesn't mean the courts shouldn't strive for it.

And I think the entire legal system gives lip service to it, but that's different from actually doing it. I actually once heard a judge say that he didn't care if the jury got it right so long as they made a decision so he could go home. While I understand that, strictly speaking, whether the jury got it right isn't the judge's concern, the attitude of someone who would actually say such a thing doesn't speak well of him and leads one to wonder how commited he is to getting it right himself.
4.15.2008 12:30pm
subpatre (mail):
OrinKerr - Was 'the issue in Kelo is whether the government should have to pay homeowners full market value for their property or whether a holdout homeowner should be able to block government action for no reason at all'?

Or was the issue over whether or not the government could force an eviction against the landowners will? For a reason that wasn't necessary for the operation of the state.

Just asking because —to my perception— there is a gulf between those different issues.
4.15.2008 2:39pm
Dave D. (mail):
...Perhaps that judge meant that, unlike you, he and the jury didn't know the " right " verdict before the evidence was heard.
..If Jurists following the law results in an injustice, Legislatures can amend the law. Governors and the President have pardon power to correct injustices. That unelected judges take upon themselves to create law is a travesty. Keep stretching the system, but when it breaks and judges are held to be no better than political hacks, don't think you can get back the trust you squandered. The alternatives to law are all around us in the anarchy of lawless nations. We are a long way from a Zimbabwe situation, but the road to there is paved with broken trust at high levels. Goldberg violated his oath of office when he unfaithfully discharged his duty to be impartial by first deciding the outcome and then twisting and ignoring the law to support that outcome. It doesn't matter that he thought his rulings " just ".
4.15.2008 2:59pm
Clayton E. Cramer (mail) (www):

My original comment was that the Constitution was wide open to interpretation, which in fact it is, and so picking the interpretation that achieves a just result is not a bad thing.
If all interpretations were equally valid, and this was an area where there was considerable uncertainty what the right answer is, I could agree. All else being equal, justice is a good thing.

But not all interpretations are equally valid. Some are privileged, because these were the understandings that were generally agreed to be the intent of the text. Freedom of speech, for example, included political statements, and a number of other forms of speech, but didn't include nude dancing. Freedom of religious worship didn't include human sacrifice.

When you start with "What is just?" and work your way back from there, the temptation to substitute your own preferences for the text and original meaning of the Constitution is just a bit too strong. Especially this is a problem because justice is a highly subjective position.

Some people think that it is unjust that some people have more material goods than others. I think it is unjust that some people who are capable of working, choose not to do so, and insist that I provide for not only their needs, but their wants. I become especially upset when these are people who are wealthy, and insist that I fund farm subsidy programs that fund multimillionaires.
4.15.2008 5:00pm
pluribus:
Brian G:

The thing I always like about him is that he retired long before he had to. I wish others would follow his lead

Well, Goldberg didn't want to retire, but LBJ pressured him to do so, promising him the job of ambassador to the UN as a sop, so LBJ could appoint his buddy Abe Fortas to the Goldberg seat. Goldberg didn't have the balls to say no. LBJ did much the same to Tom Clark, telling him that he wanted to appoint Ramsay Clark attorney general and, of course, it wouldn't do for the AG's father to be on the Court. An LBJ tape was recently released proving this is just what he did. Clark stepped aside so his son could step up and Thurgood Marshall got the SC seat. LBJ was fond of playing musical chairs with the Court, and SC justices went along. I'm not sure this is the kind of lead we want people to follow today.
4.16.2008 8:41pm
xxx (mail):
Cort was no choir boy, he got into trouble after he returned to the US:

"Joe's controversial nature persisted: The Economist, January 15, 1983: "Vega Biochemicals, a private biotechnology firm based in Arizona with capital of only $7m, has had to swallow a $1.8m loss after Dr. Joseph Cort, one of its senior scientists, admitted to fraud. New York's Mount Sinai Medical Center, where Dr. Cort did his original work, recently announced that the doctor had lied about the results of synthesizing certain proteins helpful in making blood clot."

Joe Cort died in 1995."
4.17.2008 2:31pm