Justice Arthur Goldberg

In some recent research, I’ve been struck by the high quality of Justice Arthur Goldberg’s opinions during his three years on the Court (from 1962-1965).  In Heart of Atlanta Motel, Inc. v. United States and Griswold v. Connecticut, for example, he wrote separate opinions that were more insightful than what the Court produced. His memo in Harper v. Board of Elections was much better than Justice Douglas’ opinion.  And he was the first Justice to raise constitutional questions about the death penalty.  (Justice Breyer was Goldberg’s clerk; so was Alan Dershowitz).

Unfortunately, Justice Goldberg allowed himself to be talked into resigning to become our Ambassador to the UN.  Lyndon Johnson, who was famous for his ability to persuade, wanted to put Abe Fortas on the Court and convinced Goldberg that the path to the White House rested with success at the UN.  (Writing that line just reinforces how absurd LBJ’s pitch was.) He also made some sort of empty promise to put Goldberg back on the Court if that didn’t work out.

Justice Goldberg resigned from the Court when he was just 57.  He lived until 1990, which suggests that under normal circumstances he would have served on the Court for more than two decades.  It’s fair to say that he’s probably the last Justice who will leave the bench to take another government post.

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5 Responses

  1. Business Law Prof says:

    Interestingly, Goldberg is also one of the few (only?) former Justices to later return to the court in an advocacy role, as he served as lead counsel in Curt Flood’s appeal against Major League Baseball. Professor Brad Snyder’s excellent history of the Flood v. Kuhn case, _A Well-Paid Slave_, offers a pretty scathing critique of Goldberg’s performance in oral argument before the Court.

  2. Joe says:

    His 9A concurrence to Griswold (assist from Breyer) also is worth mentioning. The Goldberg-Fortas switch was unfortunate though ultimately Fortas was replaced by Blackmun. How would Roe have gone down in a counterfactual world?!

  3. Joe says:

    BTW, I’m interested, if you are sharing, what you are working on that had to do with Goldberg.

  4. Gerard Magliocca says:

    Oh, eventually I’ll probably write about the 1960s as part of the generational cycle. So I’m just reading up on that.

  5. Joe says:

    Thanks. I see my Griswold comment was covered already.