Bench Memos

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More on Arthur Goldberg


Ed Whelan’s post  on Monday about Arthur Goldberg’s constitutional “jurisprudence” (using that term in very loosely) may strike the casual reader as, perhaps, an admirable excess. What’s not to like about justice? Goldberg clerk Peter Edelman (now a Georgetown law professor) recently recalled how Goldberg surprised by saying: figure out the “just” result in any case before the Court — and then make the law as needed to get that result.

Edelman compared Goldberg’s modus operandi to the picture of judging he imbibed from his Harvard law teachers, who proposed to start at the other end: identify the law first (as best one could) and seek justice through, and under, it. For Goldberg, what the ratifiers understood the Constitution’s words to mean, and the long tradition of their interpretation by courts, were roadkill on the path to justice.

Goldberg’s approach is not, however, an admirable case of runaway good intentions. It takes a lot of chutzpah to think — as did Goldberg — that he (even with Edelman’s help) could identify the uniquely just result on a court record several degrees separated from reality. Besides, Goldberg’s approach to deciding cases is scarely a defensible job description for any court. But, maybe, for some lower courts it is not far from the right neigborhood. But the Supreme Court is in another zip code altogether. Its job is not to get the “just” result for paricular litigants. It is instead but to settle the law for the vast run of cases involving litigants not now before the court and, perhaps, not yet born.

Goldberg was also innocent of the injustice he committed precisely by ignoring the law, even for the sake of justice. There are several ways in which those exercising public authority may act unjustly. One is to enact a law which is unjust in itself (say, a law requiring all medical students to participate in abortions). But the classical authors in jurisprudence also identified USUSRPATION of authority as an injustice. The Constitution specifies that judicial power is the authority — and only the authoirty — to decide cases in accord with the law. The Constitution does not make Justices of the Supreme Court ombudsmen plenipotentiary, roving ambassadors of righteousness whose writ runs as far as, well, as far as Arthur Goldberg’s conscience could take him — and Peter Edeleman.


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