Arthur J. Goldberg

He sat three terms, and they were the terms in which the Warren Court found its fifth vote. His first major opinion carried a sentence America would keep: 'The powers of Congress to require military service for the common defense are broad and far-reaching,' he wrote in Kennedy v. Mendoza-Martinez (1963), 'for while the Constitution protects against invasions of individual rights, it is not a suicide pact.' The phrase is usually credited to Robert Jackson (§82), whose 1949 dissent warned against converting the Bill of Rights 'into a suicide pact'; the version everyone now quotes is Goldberg's. In Escobedo v. Illinois (1964) he moved the right to counsel back to the police station: 'when the process shifts from investigatory to accusatory,' the accused 'must be permitted to consult with his lawyer,' because 'a system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.' In Aptheker v. Secretary of State (1964) he struck the passport ban on Communist Party members, since the right to travel 'is a part of the "liberty" of which the citizen cannot be deprived without due process of law.' In Murphy v. Waterfront Commission (1964) he gave the privilege against self-incrimination its most quoted rationale, 'our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.' In Cox v. Louisiana (1965) he reversed a breach-of-peace conviction for a civil-rights march. And in Griswold v. Connecticut (1965), his last term, he wrote the concurrence that put the Ninth Amendment back into the conversation: its 'language and history' showed 'that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.'

The opinion that outlasted his tenure was one he filed with two colleagues against a denial of review. In Rudolph v. Alabama (1963), a rape case, Goldberg, joined by William O. Douglas (§79) and William Brennan (§90), asked whether the Eighth Amendment permitted 'the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life,' measured against the 'evolving standards of decency that mark the progress of a maturing society' that Earl Warren (§88) had written into the law in 1958. Behind the short dissent lay a longer memorandum to the Conference on the death penalty as a whole, drafted with his clerk Alan Dershowitz; by the accounts of the campaign's historians, the Chief Justice asked him not to press it, the narrower dissent went out instead, and the memorandum's argument found its way to the lawyers of the Legal Defense Fund, who built from it the litigation that reached Furman v. Georgia nine years later. He returned to the subject himself in 1987, in an essay titled 'Death and the Supreme Court.'

The Supreme Court Database holds him at the edge of its instruments. Across 440 coded votes his liberal share was 76.1 percent against a docket baseline of 69.0, the Warren Court at its height, for a gap of 7.1 points; he dissented in 9.6 percent of cases against colleagues who dissented at 16.3 on the same ones. Three terms fall below the floor for the site's agreement matrices and below the floor for its drift series; the record is too short for either.

Then Stevenson died, and Johnson, who had wanted Fortas on the Court from the start, needed a seat. By his biographer's account the President raised the United Nations with Goldberg at the White House and pressed it aboard the plane to Stevenson's funeral, with a promise, never kept, to reappoint him at the next vacancy. Goldberg said yes for the reason he gave for the rest of his life: he believed he could turn the President on Vietnam. He was sworn in at the United Nations on July 26, 1965, calling the work 'the greatest adventure of man's history.' The years there were spent on a war he could not end and on a peace he helped draft: in November 1967 he was the American hand on Security Council Resolution 242, whose omitted definite article, withdrawal from 'territories' rather than 'the territories,' he later defended as deliberate. Johnson announced on the last day of March 1968 that he would not run again; Goldberg resigned four weeks later, citing personal reasons, and the frustration over the war is the consensus of everyone who has written about it. 'I accomplished my objective,' Goldberg told UPI in 1986, 'too late.'

He was fifty-nine, and the rest was long. In 1970 he ran for governor of New York as the Democratic nominee and lost to Nelson Rockefeller by twelve points; by his biographer's account, asked on the trail whether he wished he were still on the Court, he answered that so did he, sometimes. He argued Curt Flood's antitrust case against baseball in 1972 and lost that too, to an opinion by Harry Blackmun (§98). Jimmy Carter made him ambassador-at-large to the Belgrade human-rights conference of 1977 and 1978. He taught, wrote, and practiced. Dorothy died in February 1988, and he died at home in Washington on January 19, 1990, at eighty-one, and was buried at Arlington. When the Court sat in his memory that October, Chief Justice Rehnquist (§100), who had first met him only in 1971, said what the record says: of the several public roles Goldberg held, 'he liked that of Associate Justice most of all.' Stephen Breyer (§108), who clerked for him in his last term, remembered a man 'happy on the Court; indeed he was in his element.' He had sat for the bar before he was twenty-one, joined the Cabinet at fifty-two, and reached the Court at fifty-four; the hurry that had carried him so far carried him off it at fifty-six. Of all the offices he held in a hurry, the one he left in a hurry was the one he loved.