An Audacious Idea
Alan Dershowitz was sweating. It was Dershowitz's first day on his new job, August 1, 1963, in the heat of a characteristically brutal summer in Washington, D.C. To get to work from his home in Hyattsville, Maryland, Dershowitz had to endure two sweltering bus rides while dressed in his suit and tie. After the bus deposited him at the station, he had to walk up forty-four marble steps and pass through a portico and under a pediment bearing the words "Equal Justice Under Law."
This was no ordinary office: Dershowitz was a law clerk to Justice Arthur Goldberg of the United States Supreme Court.
In the receiving area Dershowitz completed some paperwork and rubbed the sleep out of his eyes. He and his wife had a one-year-old at home, and that morning he had woken up extra early to make sure he was on time. But when Arthur Goldberg said he wanted to have a word, Dershowitz snapped awake. Dershowitz knew what it meant when a judge called a clerk into his office: He had spent the last year clerking for D.C. Circuit Court of Appeals judge David Bazelon, a superstar in the legal universe, who was also known for yelling at his clerks.
Dershowitz hoped it would be different this time around. He had made a huge gamble on Goldberg. Law students count themselves lucky to receive a single offer to clerk for a justice, but Dershowitz, a student of legendary prowess, had received two on the same day — one from Goldberg, the other from Hugo Black. Most young lawyers couldn't have resisted the opportunity to work for the iconic Black, a twenty-five-year Court veteran and one of its two intellectual leaders. Dershowitz saw it differently. "Black had formulated his ideas," he said later. "I would be helping him do the same thing he had done. Goldberg, on the other hand, was a new justice." With that potential, though, came a huge risk. No one knew what his temperament would be like and whether Goldberg would be a transformative justice, like Black, or dull and cautious, like, say, Tom Clark.
With trepidation, Dershowitz entered the justice's chambers. He hadn't been there since his interview more than a year ago. Dershowitz looked around. Most of the furnishings were standard government issue — a wooden desk with an ink blotter and an ashtray, though Goldberg didn't smoke. The notable exception was the artwork on the walls by Goldberg's wife, Dorothy Kurgans, a respected abstract painter. Dershowitz liked her compositions very much. He paid particular attention to a giant portrait of Oliver Wendell Holmes, brooding behind Goldberg's desk. Beneath the picture Goldberg had reprinted several of Holmes's most famous quotes. Dershowitz noted one in particular:
The life of the law has not been logic; it has been experience.
Goldberg offered Dershowitz a seat. From across his desk, he tossed him a thick legal brief with a red cover.
"Do you know what this is?
"It's a cert petition," Dershowitz replied, picking it up. "Cert" is short for certiorari, which translates from Latin as "to be more fully informed." A writ of certiorari requires a lower court to send the record — transcripts, evidence, and so on — to a higher court for review. When a litigant wants the Supreme Court to hear a case, he or she files a petition for cert. Cert petitions in capital cases have red covers.
"No," Goldberg said. "You're holding in your hands a vehicle that can end the death penalty in the United States. The Eighth Amendment prohibits cruel and unusual punishment. What could be more cruel than the deliberate decision by the state to take a human life?"
Dershowitz smiled. He had chosen the right man.
Viewed from the standpoint of the twenty-first century, the idea of using the Constitution to strike down the death penalty doesn't seem surprising. In the early 1960s, however, the notion that executions were cruel and unusual punishment seemed fanciful. When the Founding Fathers drafted the Constitution, the death penalty was mandatory for most felonies and used in every state. The Fifth Amendment referenced capital crimes explicitly and implicitly when it said no person should be deprived of "life, liberty, or property" without due process of law. The Fourteenth Amendment, adopted in the aftermath of the Civil War, used the same language. No Supreme Court justice had ever suggested that capital punishment might be unconstitutional. Only one law-review article had even hinted at the notion. Nothing should have suggested to Justice Arthur Goldberg that this idea could succeed.
Then again, nothing in his childhood should have suggested to Arthur Goldberg the possibility of his becoming a justice of the U.S. Supreme Court, but he aspired to become one, and did all the same. And Goldberg's time on the Court, though often overlooked because of its brevity, was among the most consequential in its history. During his three years on the bench, Goldberg fomented an intellectual revolution: a radical transformation of the view of the Court's proper role that had profound consequences for capital punishment specifically and American civil liberties in general.
Even as a child Arthur Goldberg had chutzpah. His parents fled a Ukrainian village northwest of Kiev for the West Side of Chicago. There he thrived even as Polish and Irish Americans shouted anti-Semitic epithets at him and pelted him with stones. The experience fundamentally shaped young Goldberg, who developed a lifelong allegiance to underdogs.
Though well educated, Goldberg's father found work only as a peddler, and died when Arthur was eight. To support the family each of Arthur's seven siblings took jobs; none graduated from high school. The youngest child, Arthur was allowed to finish school, but he did his share of work. By age twelve he was wrapping fish, selling shoes, and vending coffee at Cubs games from an urn strapped to his back.
As a teenager Arthur Goldberg aspired to become a lawyer. "I don't know why," he said. "None of my relatives were lawyers and I guess it may have been a response to that." Shortly after his sixteenth birthday he attended the sensational Leopold and Loeb murder trial, where the defense attorney, Clarence Darrow, successfully saved his clients' lives with an impassioned critique of capital punishment. Later Goldberg reflected that Darrow's performance made a lasting impression on him.
While working nearly full-time, Goldberg graduated from Benjamin Harrison High School at sixteen, took classes at Crane Junior College, and finally enrolled at Northwestern University, from which he graduated in just one year. He advanced to the liberal Northwestern Law School, where he learned, in his own words, "the role of law in limiting the arbitrary exercise of state power." Goldberg supported himself by working construction jobs but still managed to become editor of the Illinois Law Review and to graduate with high honors at the age of twenty-one. The Illinois Bar Association refused to admit him because he was too young. Goldberg sued and won.
The top Chicago firms were closed to Jews, even the editors in chief of prestigious law reviews. The best position Goldberg could land was at Pritzger & Pritzger, a firm founded by a family of German Jews. It was a fine law office, but substantially down the pecking order. As things turned out, though, landing at Pritzger was a blessing in disguise. Goldberg developed an expertise in labor law, which sustained his career. In 1938 he represented Chicago's striking newspaper workers and began to develop a national reputation.
During World War II, Goldberg served in the army for the Office of Strategic Services, a precursor to the CIA. The government's conduct during the war solidified Goldberg's mistrust of authority. Following Pearl Harbor the State Department detained Goldberg's legal secretary, Elizabeth Ho, without any evidence against her. Goldberg successfully used his military influence on Ho's behalf, but he recognized that others weren't as lucky.
Goldberg saw unions as an important force to protect the powerless, and so, after the war, he opened his own office focused exclusively on employment law. Soon Goldberg emerged as the most prominent labor lawyer in the United States. He became general counsel for the Congress of Industrial Organizations, and during the 1950s oversaw its merger with the American Federation of Labor.
In 1960 Goldberg became involved in politics when he pledged early support for John Kennedy's candidacy. He played an instrumental role in maintaining JFK's good standing with the labor movement, which resented Kennedy for supporting John McClellan's committee investigation of union corruption. Rewarding Goldberg for his loyalty, President Kennedy named him secretary of labor in early 1961. Twenty months later, when Justice Felix Frankfurter resigned because of failing health, Kennedy fulfilled Goldberg's childhood dream and nominated him to what had come to be known as the "Jewish seat" on the Supreme Court.
Goldberg spent a restless first year on the bench. Because of his long-standing connections to the labor movement, he had to recuse himself from several cases. He enthusiastically joined as the Court rejected prayer in public schools and required states to provide counsel to indigent clients. But he played no more than a peripheral role in these battles, and he authored no major opinions. Privately Goldberg stewed. He hadn't joined the Court to become a silent partner: He wanted to leave his mark.
During the late spring of 1963, Goldberg couldn't have avoided thinking about crime and justice. On June 12 the civil rights leader Medgar Evers was assassinated in Mississippi. Then, shortly before the first anniversary of Adolf Eichmann's execution, Hannah Arendt published her seminal and controversial account of the Nazi's trial, Eichmann in Jerusalem: A Study in the Banality of Evil. Goldberg knew Arendt, who supported capital punishment. Ten years earlier they had both participated in the Jewish Theological Seminary's Fiftieth Anniversary Conference on Moral Standards in New York City.
Throughout the following summer Goldberg thought time and again about overturning the death penalty, which he had abhorred since his childhood. Goldberg drew a direct link between the Holocaust and capital punishment. In the aftermath of the war the revelations of Nazi atrocities revolted Goldberg. He read the theologian Reinhold Niebuhr, who argued that faith in humanity's beneficence died with the Holocaust. Like Niebuhr, Goldberg had no confidence in the ability of politics to produce justice.
Furthermore Goldberg thought capital punishment was bad public policy. He didn't believe that the death penalty deterred violent crime. He thought states applied it discriminatorily: In practice the death penalty was used exclusively against the poor and the politically powerless. Goldberg also worried about the problem of executing innocents. In his mind this included people who didn't commit the crime for which they had been convicted and people who were sentenced under outdated principles.
For all these reasons Goldberg resolved to use his position to end capital punishment. The 1963 Court term seemed like the time to do it. During his first term he felt hamstrung by his law clerks, who had been selected by Frankfurter. For his second year on the bench, he made his own choices. Dershowitz struck Goldberg as perfect for the job. His experience working for Bazelon, a committed opponent of capital punishment, would be useful, and Dershowitz seemed to have a passion for civil liberties. Indeed, Goldberg's proposal elated his law clerk. But Dershowitz also had a scholar's mind. He followed the Court closely and understood its major personalities. While he personally abhorred capital punishment, Dershowitz knew that many people would regard Goldberg's plan as a folly.
Excerpted from A Wild Justice: The Death and Resurrection of Capital Punishment in America by Evan J. Mandery. Copyright (C) 2013 by Evan J. Mandery. With permission of the publisher, W.W. Norton & Company, Inc.