The John Marshall Journal of Information Technology & Privacy Law

Volume 29 Issue 3 Journal of Computer & Information Law Article 2 - Spring/Summer 2012

Summer 2012

Session I: The Legacy of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012)

Samuel R. Olken John Marshall Law School, [email protected]

Gerald Berendt John Marshall Law School, [email protected]

Gilbert A. Cornfield

Gilbert Feldman

David Stebenne

See next page for additional authors

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Recommended Citation Samuel R. Olken, Gerald Berendt, Gilbert A. Cornfield, Gilbert Feldman, David Stebenne & Hon. Milton I. Shadur, Session I: The Legacy of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012)

https://repository.law.uic.edu/jitpl/vol29/iss3/2

This Symposium is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in The John Marshall Journal of Information Technology & Privacy Law by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. Session I: The Legacy of Justice Arthur Goldberg, 29 J. Marshall J. Computer & Info. L. 285 (2012)

Authors Samuel R. Olken, Gerald Berendt, Gilbert A. Cornfield, Gilbert Feldman, David Stebenne, and Milton I. Shadur

This symposium is available in The John Marshall Journal of Information Technology & Privacy Law: https://repository.law.uic.edu/jitpl/vol29/iss3/2 33835-sft_29-3 Sheet No. 6 Side A 08/13/2013 08:57:11 ORTHERN N CHOOL CHOOL S S IVISION AW AW NIVERSITY D L L U : HADUR ELDMAN ELDMAN : LKEN TATE ASTERN OURT FOR THE F F ORNFIELD TEBENNE ARSHALL ARSHALL S I. S ELDMAN ERENDT C , E S F B M M R. O 285 HIO A. C ODERATOR ANELISTS O ILTON AVID OHN OHN P M ISTRICT LLINOIS HE ERALD J J ILBERT . M . D AMUEL I SESSION I: SESSION G R S G GOLDBERG , T ILBERT HE HE ON D ORNFIELD AND ORNFIELD AND G H , T , T C C , U.S. D ISTRICT OF ROFESSOR UDGE D P J ROFESSOR ROFESSOR P P ENIOR THE LEGACY OF JUSTICE ARTHUR OF JUSTICE LEGACY THE S M K \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 1 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 6 Side A 08/13/2013 08:57:11 08/13/2013 6 Side A Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 6 Side B 08/13/2013 08:57:11 M K C Y Griswold v. . of the individual, the dignity of the person, The autonomy JUDGE SHADUR: Well, let me start out by saying that they allo- JUDGE SHADUR: Well, let me start When I was first asked whether I’d say a few words at these ceremo- PROFESSOR SORKIN: I’d first like to thank Dr. Etzioni for chal- for Dr. Etzioni to thank like I’d first SORKIN: PROFESSOR (Applause.) the legacy Thank you, David. To appreciate PROFESSOR OLKEN: and the freedom to choose one’s associates are not only essential attrib- and the freedom to choose one’s associates privacy but were also values that influ- utes of the constitutional right of law. This first panel, comprised of a enced Arthur Goldberg’s life in the and Arthur Goldberg’s biographer, jurist, three eminent labor lawyers, relations and on the Court. Our first will discuss his legacy in labor I. Shadur, senior district judge of the speaker is the Honorable Milton Northern District of Illinois, Eastern United States District Court for the 1980, who will share with us some of Division, and a federal judge since early law practice in Chicago his reminisces about Arthur Goldberg’s Judge Shadur. during the 1930s and into the 1950s. cated ten minutes to me. And those of you who know The Tales of Hoff- run mann know that when they wound up the doll, the time for her to out would be long past ten minutes. So I violated a lifetime rule by writ- ing things out and I hope that you will pardon me for that. enor- nies that celebrate my former partner, Arthur, I was, of course, to do mously flattered and immediately responded, “I’d be delighted lenging us to consider privacy in a broader context and for his fascinat- context and for in a broader to consider privacy lenging us of Arthur the Legacy to Session I, Examining We now move ing remarks. Goldberg. Samuel Olken Professor will be my colleague, Our moderator the areas of and writes in School, who teaches Marshall Law of The John Olken. history. Professor law and legal constitutional his work as a labor one needs to understand that of Arthur Goldberg, and personal a steadfast commitment to the autonomy lawyer reflected dignity of the individual. core policies Indeed, these are also two of the right of privacy.at the heart of the efforts on Goldberg’s considerable to assume control over and women of labor, who sought behalf of the men of collective bar- and his devotion to the process their working conditions, recognition that the integrity of labor gaining emanated from his implicit respect the freedom of their employ- relations mandates that employers ees to choose whether to join a union. Accordingly, this choice is derived freedom of association, a constitu- from the applied First Amendment other Supreme Court justices recog- tional liberty that Goldberg and six fundamental constitutional right of nized as integral to the implied Arthur Goldberg’s considerable leg- privacy. Therein is the link between concurring opinion in acy as a labor lawyer and his famous 286 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 2 24-JUL-13 16:01 Connecticut 33835-sft_29-3 Sheet No. 6 Side B 08/13/2013 08:57:11 08/13/2013 6 Side B Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 7 Side A 08/13/2013 08:57:11 Now, you can tell by looking at me that I’m antediluvian, but, you antediluvian, at me that I’m can tell by looking Now, you they were I made that plain to the sponsors, Well, anyway, when generations, with those famous men of earlier Too often in dealing Devoe, just two lawyers, Arthur Our law firm began as Goldberg and me about the formation of the After I became a partner, Carl told they were sitting on a hillside Now, the way Carl told me the story, More seriously, I particularly wanted to share with you something M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION a serious made had the organizers realized that I after But shortly that.” 287 the general and, that is, when heard repeated which you’ve just mistake, to provide that I’d be expected I was told got down to specifics, invitation and 1940s. in the 1930s early days in practice as to Arthur’s some insight of the 104th anniversary would have been all, last month know, after to provide anything, even I don’t go back far enough Arthur’s birth; and you know, in that hearsay, which is verboten, other than, of course, score. didn’t rescind the invitation.very gracious, they question shifted So the be.extent of my brief input ought to to just what the struck me that It in carrying out what people, or organizations, engage occasions on which famous men,” that Ecclesiastes as “Let us now praise was described in of course. was chauvinistic, at least to dehumanize them, in favor the tendency was to deify them, or public personae. So I decided to spend of limiting the discussion to their about the human being whose my few minutes in telling you something today and tomorrow.public accomplishments we celebrate In terms of hearsay anecdote with you. those earliest days, I will share one and Carl Devoe.to They cofounded the firm when the two came back II.Chicago to practice after World War Both of them had been, if you’ll the predecessor of the CIA, an odd pardon my saying so, in the OSS, Bill Donovan.couple, right, under General Wild Arthur was in the Army, Carl was in the Navy. before the war, arranged to get firm when both of them, good friends met in Casablanca where they decided leave at the same time. And they the war, which was a question, they that if each of them were to survive would indeed go into practice together. about the future.in Casablanca that evening talking And Carl realized seemed to be looking over his shoulder that Arthur, who was facing him, saying.and not listening to what Carl was So Carl turned around and he in an apartment building across from saw, framed in a lighted window, be- the hill, a nubile young woman unself-consciously undressing herself, cause she had no reason to think that the hill opposite was populated. that Now, the way Carl put it, theirs was the only law firm in history was formed to the accompaniment of a striptease. about Arthur’s sense of the practice of law as a profession, which I fear— \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 3 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 7 Side A 08/13/2013 08:57:11 08/13/2013 7 Side A Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 7 Side B 08/13/2013 08:57:11 M K C Y As it happened, I’d been referred to the law firm by one of my law firm by one of referred to the law I’d been As it happened, to me about I met Arthur and he said some things A few days later, were to happen, we had to be What Arthur said was that if that and integrity, is something Now, that lifetime lesson, independence One of those cases was called McLaurin against Oklahoma State Re- and don’t get me started on this—has on me started don’t get and something good deal, a changed 288 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. him. meeting with during my first I learned about about which XXIX firm’s only out with the things had not worked who knew that professors replacement. looking for a and they were a young associate, associate, the other two being hired by ended with my first interview Now, that that we met Arthur Abe Brussell, because on the date partners, Carl and was in Washington.he was spend- that point my recollection is that At on the ground in time in the air as he was spending ing probably as much either office. stayed with me for a of lawyering that really have the then profession lifetime. at some all is his telling me that almost inevitably Most vivid of me to do something in some client was going to want point in my career simply wrong from a that I regarded as the course of representation both. from an ethical standpoint, maybe moral viewpoint, It didn’t mat- client was, how important the client ter, as Arthur put it, how large the was, even the Steelworkers. My recollection is that at about that time of the law firm’s total billing. probably that represented a third hell.prepared to tell the client to go to As he put it, we can count on the so that we’ll always be able to make fact that we’re good enough lawyers to retain our independence and our a living, and we must be able integrity. in kind of oxymoronic terms, that is, that I’ve always thought about when I joined the firm, I learned that never rise above principle. Now, a kind of generosity of spirit on the those precepts also carried with them and Abe as well.part of Arthur and, of course, Carl Abe was the third state court judge in Chicago. partner who later became a distinguished people, there was no limit to the Once you had the confidence of those in your hands.responsibility that they would place Believe it or not, in and Phil Murray, who was then presi- my second year in practice, Arthur brief ought to be filed in the Supreme dent of the CIO, decided an amicus equal protection education cases.Court in what was then one of the At with colleges and professional that time they were dealing primarily schools. gents. called me up to say “Write the amicus brief.” Arthur And what he said to me was “Just write it and send it in. There’s no need to check it with me first.”twenty-five years old, not yet a Remember, I was all of partner in the firm—that to me at the end of my second honor came \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 4 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 7 Side B 08/13/2013 08:57:11 08/13/2013 7 Side B Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 8 Side A 08/13/2013 08:57:11 Now, you can think, and I can hardly blame you if you do, that that you if you do, I can hardly blame can think, and Now, you to write a brief I was young and foolhardy enough As it turned out, that was handed to me, my time Well, as you gather from the note to have been asked to provide It has been, I tell you, a singular honor about it, I find it quite ironic that But, one last point, as I’ve thought In short, to me, The Legacy of Justice Arthur Goldberg, as signifi- M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION year—not ap- couldn’t so my name bar, Court the Supreme of a member 289 the brief. pear on part. on Arthur’s even foolhardy judgment a kind of rash or reflected My our experi- to believe that is to demur, I prefer however, own preference, when I came intensive stretch including an at that point, ence together in developing a set of preceding year to work with him to Washington the ouster of then commu- procedures for the possible standards and hearing to make a value from the CIO, had led Arthur nist-dominated unions he was unafraid to act. judgment on which doc- Court to overrule the separate-but-equal that urged the Supreme the Supreme Court Ferguson, four years before trine of Plessy against Education. in Brown against Board of got that message But even the brief. So I had put name and not mine had to be on though, Arthur’s him at risk. impaired his it gave rise to no explosions that Fortunately, standing before the Court. the wide spectrum that has to be occu- has been wisely limited in light of even though what I think of as my pied during these proceedings, me into the many years of my contin- anecdotage might otherwise lead the decades that followed his tenure ued relationship with Arthur over as a partner. this brief kickoff tribute to him. to a session that’s captioned “The I have provided a small introduction Legacy of Justice Arthur Goldberg.” And, of course, I’m talking about all of us of the value that Arthur would the fateful decision that deprived to the Supreme Court and to our otherwise have continued to contribute country as a whole. There I believe that Arthur’s own strengths, his in- made him such a great lawyer and a tegrity, the other attributes that the belief that any appeal by a Presi- great person, including, by the way, that it had to be honored, made it dent carried with it a powerful sense his reluctance to leave the Court. easier for Lyndon Johnson to overcome the one client, in quotes, whom Ar- In a sense, President Johnson was to hell.”thur didn’t feel he could tell “to go And on that score, I person- ally believe that all of us, not just Arthur, suffered a great loss. them cant as your remaining speakers will demonstrate, as I’ve given than enough time to do that, was far more brief and far more incomplete it really should or could have been. \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 5 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 8 Side A 08/13/2013 08:57:11 08/13/2013 8 Side A Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 8 Side B 08/13/2013 08:57:11 M K C Y (Applause.) is Gil Cornfield, Our second speaker OLKEN: PROFESSOR as a Partici- is: Arthur Goldberg, the Attorney, Mr. Cornfield’s talk Goldberg until Actually, I did not meet Arthur MR. CORNFIELD: the historical context of Arthur I want to talk a little bit about Now, these individuals had a wide range of ideological perspective, cofounder of the Chicago labor law firm, Cornfield and Feldman, a firm and Feldman, labor law firm, Cornfield of the Chicago cofounder Gil Feld- panelist today, and another 1960 by Mr. Cornfield created in Brussell and the successor to and Feldman, is firm, Cornfield man. Their Arthur Goldberg and labor practice developed by Goldberg, a union-side moving to Wash- W. Brussell, prior to Goldberg’s his partner, Abraham and of the United general counsel of the CIO ington, DC, to become Steelworkers of America. Movement. pant in a Social litigation challenging 1960 in connection with our first many years after the patronage system.of Labor experi- And that was after the Secretary and UN experience.ence, Supreme Court experience, And I met him in doing on behalf of the American Washington to review what we were Municipal Employees. What I’m sup- Federation of State, County and Goldberg’s legacy.posed to be talking about is Arthur And in a certain because of that legacy. And I sense I’m here, as has been indicated, people working with Abraham W. started with Gil Feldman and other moved to Washington to become gen- Brussell after Arthur Goldberg had United Steelworkers of America.eral counsel of the CIO and the The kind of bifurcated. Brussell went off by firm Milt Shadur was part of was and successively hired a bunch himself with basically the labor practice I was and then Gil Feldman. of young associates, one of which Goldberg. part of a whole group of He is unique as an individual but and in a certain sense were archetypes people that emerged in the 1930s labor movement.for lawyers as participants in the The labor movement a participant.really wasn’t the client, you were And characteristic of were exceptional in several ways, those people in the ‘30s, where they they were predominantly Jewish. They almost all had very significant academic backgrounds. For instance, Abe Brussell came out of Minne- school graduate, in the ‘30s when sota, was a Harvard graduate, law there were very few Jews. And Arthur Goldberg was a graduate of Northwestern Law School also when there were very few Jews. no from far left to involvement in movements in part because there were real alternatives for them. I remember some years ago being involved in of an Illinois Humanities Council project concerning the labor lawyers that period and particularly the Jewish labor lawyers of that period. 290 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 6 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 8 Side B 08/13/2013 08:57:11 08/13/2013 8 Side B Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 9 Side A 08/13/2013 08:57:11 So what is the legacy from that perspective in terms of Arthur in terms that perspective from the legacy is So what ‘60s new social that from the late ‘50s through the What happened is in terms of individuals And it is that legacy that is so significant that I came on board was after It’s also, just as a note, the time as a participant in the labor One last comment about the lawyer Thank you. M K Goldberg? to con- in the next generation myself and others He enabled movement.movement, the labor participants in tinue as time By the Court—yes, to the Supreme was appointed Arthur Goldberg called it was movement—hea labor ways as in similar become established, had civil rights justice after the a great judge and Marshall became Thurgood part of our ethos. movement, had become movements emerged. in some sense they kind of bridged each other, And they were sequential. the civil rights was the antiwar movement, There was really an out- public employee labor movement movement, and the two things.growth of those in this law Because, as young associates able to get involved in our twenties at the time, we were firm, we were in the earlier people, in a very similar way that these social movements participants in those had become involved as such as Arthur Goldberg, social movements. period and is almost peculiar to the such as Arthur Goldberg from that century of the lawyer as a partici- American experience of the twentieth pant in a social movement. to become general counsel to CIO.Goldberg had gone to Washington It’s said I shouldn’t shy away from this, very interesting, and I think Jerry proponent of the merger and was to that Arthur Goldberg was a very big of the CIO and the AFL.a great extent behind the merger Interestingly spun off from the firm, was general enough, Abe Brussell, when he had counsel to the CIO in Illinois. And I know, and having talked with Abe, because he saw that the AFL would that he was opposed to the merger sense of ideology. I mean, one can go dominate and they would lose the around on that. I’m just making the point and just describing that. So that regard. it’s just an interesting comment in movement. knows this from his ear- And I don’t know if Judge Shadur we came on board there was hardly lier experience at the firm, but when we represented.any billing going on for the unions We lived literally off of Workmen’s Compensation. And I believe that that was probably true in terms of Workmen’s Compensa- before us, because Brussell was active tion, and I believe that probably in the ‘30s and ‘40s, as these lawyers became participants in the labor movement, that was really their source of livelihood. us for several years. And that remained with Not until well into the ‘60s and even beyond that we could start having a lawyer- client relationship with a labor organizations we now represent. 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION 291 \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 7 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 9 Side A 08/13/2013 08:57:11 08/13/2013 9 Side A Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 9 Side B 08/13/2013 08:57:11 M K C Y (Applause.) cofounder is Gil Feldman, third speaker OLKEN: Our PROFESSOR Gil. written down a For the first time in my life I have MR. FELDMAN: career, fundamentally influenced my professional Arthur Goldberg had three young associates, two When Brussell became a judge, he in my memory are certain key Since I only met him once, remaining skill as a lawyer was not matched Secondly, to my surprise, his great about the forthcoming Kennedy Third, he was absolutely exuberant these events which we have dis- Now, I knew of Goldberg before One thing that should be mentioned, in 1959-1960, the year before and given ten minutes, I’ll skip them—butand given ten minutes, I’ll skip we knew of him by of Cornfield and Feldman.of Cornfield on His Impact talk is: Arthur Goldberg, His On Me. History and my allotted time. which I’m to give to stay within talk word for word, these items, which I Cornfield has covered some of Fortunately, Brother than I could. notes, and has done it more eloquently can cross off of my him personally.yet I did not know just to shake I met him only once and hands, period. to Chicago to 1961 and he had returned It was January as a newly elected labor law partner, Abe Brussell, install his former Court of Cook County.judge of the Circuit has been men- Brussell, as and Steelworkers’ labor practice when tioned, had retained the local CIO general counsel of the Steelworkers Goldberg departed in 1948 to become and the CIO. of thirty, and we formed a law firm of whom had not yet reached the age and assumed Brussell’s then practice. of Brussell’s installation as a features of his remarks on the occasion judge. should have been on First, he complained vigorously that Brussell Circuit Court. the Illinois Supreme Court, not the by his skill as an orator. This was amply demonstrated nine years later a very charismatic Nelson Rockefel- in his disastrous campaign against ler for governor of New York. to serve as the Secretary of Labor. administration in which he was about cussed. ‘50s among young liberal He was well known in the ‘40s and number of things he had been doing—lawyers in the Chicago area for a reputation. he he became Secretary of Labor, as the Steelworkers’ general counsel, ever was severely tested in a way I don’t think any labor lawyer was tested. of the four-month nationwide Because he, in effect, was in charge Steelworkers’ strike over the steel industry’s demand to modernize equipment so as to become globally competitive, a move that Goldberg 292 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 8 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 9 Side B 08/13/2013 08:57:11 08/13/2013 9 Side B Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 10 Side A 08/13/2013 08:57:11 . Douglas found a Justice . Byron White wrote a Justice Griswold Humphrey v. Moore Goldberg, joined by Justice Brennan—and he was often joined by is one that, frankly, is not com- His most important decision, I think, The union won the strike and the jobs were preserved for at least preserved for and the jobs were won the strike The union AFSCME and a few years later, when, in Illinois, It was 1963, only as a lawyer. should be said about his brilliance I think something The first one is M K constitutional right of privacy even though no such right was specified in constitutional right of privacy even the Bill of Rights. law made it a crime to pre- An archaic Connecticut scribe a drug to prevent pregnancy. majority opinion declared Douglas’s the law an unconstitutional violation of a right of marital privacy which by he wrote was within the, quote, end quote, penumbra of rights covered the Bill of Rights. majority opinion holding that an action challenging a union’s decision majority opinion holding that an of one of two competing groups of em- agreed by the employer in favor collective bargaining agreement. ployees was governed by the written bargaining a union often, of neces- The issue arose because in collective interests, a situation that in sity, represents employees with conflicting unethical requiring separate other branches of law is deemed representation. the most brilliant duo of Supreme Justice Brennan, and I consider that Court justices in the twentieth century—Goldberg wrote a concurring union’s broad discretionary powers to opinion contending that given a be governed not by the contract but by settle disputes, the actions should under the Labor Management Re- the union’s duty of fair representation it is difficult to understand how lations Act. And frankly, in retrospect, this clear reasoning. seven other justices failed to accept pletely understood today. It was in 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION of of hundreds loss or short-term the imminent result in would knew 293 industry. of jobs in the steelworker thousands other don’t know of any I role, and this assumed such a a large union when a lawyer in instance days to be exact. U.S. history, 116 largest strike in was the and plant modernization competition forced decade until foreign another of the U.S. steel mills. eventually the closing legal counsel for the of Teachers sought to engage the Illinois Federation based largely on the selection of our law firm was first time and their experience as CIO back to Goldberg, as well as our heritage, going attorneys. Supreme Court in two cases from the United States And I have selected opinions.which he wrote concurring they show They stand out because liberal judges at that the same result of other how even if he reached that of most of them because of time, his legal acumen went far beyond issues involved. his great understanding of the underlying \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 9 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 10 Side A 08/13/2013 08:57:11 A 08/13/2013 10 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 10 Side B 08/13/2013 08:57:11 M K C Y Roe v. , the Court decided , the Court decided Griswold was an abomination, there was no such national con- was an abomination, there was no . what a difference it might have made had he Indeed, . attack on the penumbra precedent was revived And the Roe Griswold Griswold . struck general agreement that the law Although there had been Gil and I were among those fortunate enough to gain from our direct Gil and I were among those fortunate (Applause.) speaker is Gerald Berendt, Pro- PROFESSOR OLKEN: Our fourth The author or coauthor of numerous books and articles, Jerry was Professor Berendt’s talk is: Arthur Goldberg, The John Marshall Jerry. Other justices dissented or concurred contending that although this although that contending or concurred dissented justices Other later, relying on Now, eight years sensus in Johnson’s plea that he leave the Su- declined to succumb to President of the United Nations, one of the preme Court to become Ambassador in this country. worst decisions ever made by anybody mettle.inheritance from Goldberg’s legal But in closing, there is no lawyers have shared indirectly in the doubt that many other young labor and for that we are very lucky. benefits of his extraordinary influence Law School, a distinguished labor fessor of Law at The John Marshall appointments to Illinois agen- lawyer who has held several governor’s Illinois Educational Labor Relations cies, including chairman of the director of the Illinois Office of Col- Board and chairman and executive lective Bargaining. held also the chair of the very first Goldberg symposium this law school back in 1998. Law School and Secretary of Labor in the Kennedy Administration. and persists to this very day. What difference it might have made if had been the basis for the judg- Goldberg’s Ninth Amendment rationale ment in down in law obviously was silly, that the Constitution contained no overall right contained no the Constitution was silly, that law obviously wrote this one. Goldberg no power to create and the Court had of privacy of, because should be taken I think great note opinion, which concurring important today.it’s very on the Ninth Amend- his argument He based constitutional enumerated provides that the expressly ment, which retained by people. be construed to deny other rights rights are not to That’s in the Constitution. Madison This amendment, for which James that in its ab- was adopted specifically out of concern was responsible, with fundamen- might be empowered to interfere sence the government tal rights of people. prevailing the basis of plentiful precedent and On Amendment, ar- Goldberg then, after citing the Ninth cultural attitudes, within the category of opinion why marital privacy fell gued in a brilliant fundamental rights. 294 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 10 24-JUL-13 16:01 Wade 33835-sft_29-3 Sheet No. 10 Side B 08/13/2013 08:57:11 B 08/13/2013 10 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 11 Side A 08/13/2013 08:57:11 Griswold .I later wrote an article about abortion rights before And and, of course, touched on privacy rights then. and, of course, touched on privacy But that’s it, Griswold My topic today is a twofold topic, really, Arthur Goldberg’s associa- My topic today is a twofold topic, John Marshall Law faculty in the Arthur Goldberg first joined the MRS. CRAMER: It was black. PROFESSOR BERENDT: Thank you, Sandy. you, Thank BERENDT: PROFESSOR than our speakers, other with all of that I exchanged In e-mails JUDGE SHADUR: Ah, yes. JUDGE SHADUR: Cornfield’s re- And I might add to Gil PROFESSOR BERENDT: you’ve now heard everything I Well, let me begin by saying that M K that’s the extent of my involvement in privacy issues for the most part. that’s the extent of my involvement School and his distinguished service as tion with The John Marshall Law administration.Secretary of Labor in the Kennedy And I wish to ac- respect to Arthur Goldberg’s legacy as knowledge openly here that with heavily, to the point of plagiarism, on Secretary of Labor, I am relying speaker, our last speaker, Professor the outstanding biography of our University. David Stebenne of The Ohio State 1930s as you heard. If you have a chance, in front of our main entrance to him and his association with to the library we have a case devoted John Marshall.of him during that period on dis- There are photographs play in front of the library. you should see the color of And as you know, his hair. Goldberg as a white mane, but We all tend to think of Arthur his hair was quite dark and someone told me it was even — Judge Shadur, we all struggled with the question of how we were going of how we with the question we all struggled Judge Shadur, of pri- legacy to the question Goldberg’s talks about Arthur to link our vacy. about job of talking Feldman do a fabulous You heard Gil Roe v. Wade 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION 295 who managed to the prize ought to go to Judge Shadur here, but I think we’re talking about a segue, from privacy to what connect, or provide the window in—Casa- about the woman undressing in with his anecdote blanca, was it? supportive of the Abe Brussell not being particularly marks also about conference, I When we founded the Goldberg merger of the AFL-CIO. to be, and he did, serve on the invited steelworker legend, Ed Sadlowski, the fact that he said that he and advisory committee, notwithstanding over the merger, particularly the Arty, is the way he put it, disagreed that were said to have communist cleansing of the CIO of the unions affiliation. have to say about privacy. Now, I did, in the early 1970s, as a law stu- articles, one on the rights of homosexu- dent, write a couple of law review of homosexuality, and in part based als and advocating decriminalization upon \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 11 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 11 Side A 08/13/2013 08:57:11 A 08/13/2013 11 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 11 Side B 08/13/2013 08:57:11 M K C Y PROFESSOR BERENDT: BERENDT: PROFESSOR —black. children or Was it raising the and practiced also heard he returned to Chicago After the war, you Justice Goldberg in 1998, we had a President Biro, when we honored Marshall, he taught labor law, During his extended service at John this time, as has already been In 1948 Arthur left Chicago again, a list of great accomplishments, And like any historical figure with was it the CIO that did it? He continued to serve, let’s see, he joined the serve, let’s see, He continued to CIO that did it? was it the the late ‘40s, the war into to serve after the ‘30s, he continued faculty in the 1950s. member into listed as a faculty and was War During World of absence and took a leave he left Chicago already heard, II, as you’ve formed OSS, in the newly as well to serve John Marshall faculty from the to the CIA. the predecessor agency under Wild Bill Donovan, law. of Goldberg and Devoe, later Goldberg, He had been with the firm other incarnations as and it went through various Devoe and Brussell, after the war. resumed teaching at John Marshall time went by. He We class of 1948 which he taught members of our famous know this because who were still of members of our Board of Trustees produced a number including two board when many of us were hired, here at the law school Associate Dean Biro and Al Gallo, and our longtime presidents, Lou was in that class of 1948 also.Helen M. Thatcher also taught Goldberg of our faculty, including Mel Lewis students who later became members and Art Sabin. several of us and told us, as he did dinner and Lou Biro came over to Goldberg was the law school’s best frequently thereafter, that Arthur here. teacher when he, Biro, was a student constitutional law, and even bills equity, torts, municipal corporations, and notes. And if you know anything about the history of the law school, at the time, Arthur Goldberg probably and Noble Lee, who was the dean different nights in the same semester. taught all six of those courses on become general counsel to the Steel- reported, to go to Washington to CIO as well.workers’ Union and, I guess, for the He, however, continued on leave of absence, until 1955.to be listed on the faculty, but as We I have been told by the late Bill Lipin- have somewhere in our collection, the faculty because of his commit- ski, a letter from him resigning from Washington. ments that were keeping him in know, you can tell from the conver- Arthur Goldberg and his career, you mythical proportions.sation here, has taken on almost His later career as a Supreme Court Justice, United Nations Ambassador, and Demo- the cratic nominee for governor of New York, have tended to crowd out memory of his earlier accomplishments on behalf of the labor movement and his accomplishments for the working class and as Secretary of Labor in the first two years of the Kennedy administration. And that’s one of the the reasons we had this panel, to try to backfill that legacy, before 296 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 12 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 11 Side B 08/13/2013 08:57:11 B 08/13/2013 11 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 12 Side A 08/13/2013 08:57:11 I met—thisvu—I like deja sounds only once met Arthur Goldberg while he answered.And I waited patiently answered He must have the old joke goes, slowly I turn, When I said that, suddenly, like story in 1998.Now, I told David Stebenne this And he commented heads during the Kennedy Goldberg and Blough, as I said, bumped Arthur Goldberg first met John Kennedy in 1948 when Kennedy was M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION accom- Court Supreme to his devoted is largely of the conference rest 297 plishments. Court in 1962 and to the Supreme appointed, again, He was of Labor. he left Secretary that’s when commencement. Law School at a John Marshall and it was I have a pho- home.of it somewhere at tograph trying to find I’ve been digging around it. House Hotel in the mid 1980s. It was at the Palmer the robing In patiently answered commencement, Justice Goldberg room before the the Supreme Court question, “Why did you leave the frequently asked to do this?” Lyndon Johnson convince you and how in hell did career. times over the course of his that question a million When he was me to him and we Leonard Schrager, introduced finished, the dean, eye contact with me Justice Goldberg didn’t make shook hands. Initially bit concerned.and I was a little me as But then Len Schrager introduced “I’m not going to bore so I smiled and I said, “our labor law professor,” about Lyndon Johnson, the Su- you with any of these trivial questions to ask you about your relationship preme Court and the UN, I’m going with Roger Blough.” Roger Blough was the president of the United early 1960s when Arthur Goldberg States Steel Corporation during the was Secretary of Labor. And to put it mildly, he was a problem. He was of America.a problem for the union, the Steelworkers He was also a Arthur Goldberg. problem for President Kennedy and with me and he said, “You know, Goldberg turned and made eye contact I’m glad you did.”nobody asks about that anymore and He then went off lecture about that dispute, how the on what seemed like a fifteen minute fell apart because of the duplicity of settlement that had been reached to use the President and the United Blough, how Blough was trying an increase in the cost that he wanted States Secretary of Labor to cover and it was quite a show. to pass on to customers of U.S. Steel, Goldberg for the purpose of writ- to me that when he interviewed Arthur Goldberg, that Goldberg got very ing the definitive biography of Arthur up then also.animated when Roger Blough came So I played him like a harp. administration. So I want to tell you a little bit about Arthur Goldberg’s connection to John Kennedy. of this is from some articles that And much from he himself, or interviews that he himself submitted to, and also David Stebenne’s book. a member of the House of Representatives. Goldberg later commented \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 13 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 12 Side A 08/13/2013 08:57:11 A 08/13/2013 12 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 12 Side B 08/13/2013 08:57:11 M K C Y Following the McClellan Committee hearings and other hearings, and other Committee hearings the McClellan Following on his experience for President, Kennedy, based Later, when he ran who assured him that he would After consulting Adlai Stevenson, had the best chance to win against Goldberg reasoned that Kennedy Kennedy over his role in the la- Labor leaders were still angry with Virginia primaries, Humphrey After the Wisconsin and West Although Eleanor Roosevelt—and remember this myself—al- I 298 LAW & INFORMATION OF COMPUTER JOURNAL those days. in graduate school like a high looked Kennedy that They [Vol. served on time as Kennedy much better over know each other came to XXIX 1947 until Committees from the Senate, Labor and then later the House, in 1960. he was elected President the time 1959 on Ken- in 1958 and with John Kennedy worked closely Goldberg Reporting and Disclo- of the Labor Management nedy’s ill-fated version was designed to know as Landrum-Griffin, which sure Act that we governing internal and also to implement reforms amend Taft-Hartley governance. union affairs and for his assistance in him and asked Goldberg with Goldberg, approached to obtain the Democratic nomination.Kennedy’s efforts But Goldberg of Adlai Stevenson here in Illinois.had been a supporter Stevenson had unsuccessful attempts standard bearer in two prior been the Democrat’s in 1952 and 1956. to be elected President not enter the primaries—and he kept his word on that score—Goldberg by declaring his support for John surprised Stevenson and labor leaders Kennedy over Hubert Humphrey. Hubert Humphrey was a favorite of organized labor. He actually had a much better record on behalf of work- than did John Kennedy. ers’ issues and New Deal-type programs President Richard Nixon—andthe likely Republican nominee, Vice you and that Kennedy offered the best chance for progress remember him – oppression. also against social class and racial AFL-CIO actually considered publicly bor law reform legislation, and the candidacy.announcing its opposition to Kennedy’s However, Goldberg weighed in on Kennedy’s behalf. After Goldberg appeared at an AFL- a motion that had been introduced to CIO Executive Council meeting, oppose Kennedy’s candidacy failed. dropped out of the race. That left Lyndon Johnson, whose only hope, really, was for a brokered convention. Since Johnson was not well loved most of the labor movement lined up by organized labor at that time, I understand from the book, of the behind Kennedy with the exception, building trades unions. though Eleanor Roosevelt led a last minute Draft Stevenson Movement, Kennedy prevailed and won the Democratic nomination at the Los Ange- les convention. \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 14 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 12 Side B 08/13/2013 08:57:11 B 08/13/2013 12 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 13 Side A 08/13/2013 08:57:11 I was thirteen years old and I remember watching on television the television on watching I remember old and years thirteen I was partici- Arthur Goldberg nomination, secured the Once Kennedy keep Texas and on the ticket did help Kennedy And Johnson’s place within the Goldberg anticipated appointment After the election, Arthur Goldberg as Secretary of President Kennedy decided to tap by labor’s initial failure to sup- Goldberg was understandably upset PROFESSOR STEBENNE: That’s right, one of the leading southern M K high drama of the Stevenson supporters marching through the floor in marching through supporters of the Stevenson high drama that didn’t Stevenson, but to draft Adlai fashion with signs snakelike work out. for his run- would choose over whom Kennedy the discussions pated in ning mate. Kennedy chose preferred Hubert Humphrey, but Goldberg to complete the ticket.Lyndon Johnson of 1960, And in November then, John Ken- cultivating labor support for President, Goldberg’s work and I assume we have in the tight Illinois race, nedy paid off particularly Daley some credit also.to give the old Mayor too many inside There are there? jokes here, aren’t and Kennedy and states in the Democratic fold, several other southern Johnson prevailed. to civil rights and his dream of an Cabinet, but his personal commitment led him to want to be Attorney Gen- appointment to the Supreme Court in the Justice Department.eral, or perhaps the number two person Ken- for the Justice Department; as you nedy, of course, had other plans Kennedy the attorney general and know, he appointed his brother Bobby Nicholas Katzenbach, who just died the number two person was the late within a year or so. Labor. Meany to send him a Kennedy asked the AFL-CIO leader George of Labor, fully expecting that Meany list of candidates for Secretary of Arthur Goldberg on that list.would include the obvious choice But Goldberg had picked up some according to David Stebenne’s biography, of it going back to the merger of enemies in the labor movement, much building trades.the AFL and the CIO, and in the And some wanted a than Arthur Goldberg whose roots more traditional AFL person rather were in the CIO. smoothed these matters port his appointment, but the President-elect appointment then sailed through the with George Meany, and Goldberg’s hearing, he received unanimous Senate. Following the confirmation ac- votes in both the Senate committee and the Senate itself. Although have cording to, I think it’s your book, David, one senator arranged to stomach cramps and avoid the vote. segregationists, right. 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION 299 \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 15 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 13 Side A 08/13/2013 08:57:11 A 08/13/2013 13 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 13 Side B 08/13/2013 08:57:11 M K C Y PROFESSOR BERENDT: By the way, he was the senator from senator the he was the way, By BERENDT: PROFESSOR Strom Thurmond. STEBENNE: PROFESSOR Strom Thurmond.PROFESSOR BERENDT: Am I correct? yes. I believe that’s right, PROFESSOR STEBENNE: the President- Goldberg had solicited PROFESSOR BERENDT: Arthur Goldberg.Wirtz, as you may know, followed When Arthur provisions of Landrum-Griffin, To enforce the anticorruption message, because of his commit- Goldberg also sent an important South Carolina my entire life until he died. my entire South Carolina without patronage he could choose his own aides elect’s promise that Kennedy political operation.pressure from the many of his He kept the Eisenhower administration.predecessors from the important But for law professor, Wil- position, he chose a Northwestern undersecretary’s in World War II on the Wage Stabilization Board lard Wirtz, who served a celebrated arbitrator.and was already Willard Wirtz joined us in and spoke at the 1998 confer- 1998, one of his last public appearances, ence as well. Court, Wirtz was appointed Sec- Goldberg was appointed to the Supreme 1962.retary of Labor to replace him in When Willard Wirtz spoke here he remembered that Kennedy in 1998 in an outstanding set of remarks, Wirtz, because Wirtz had been was reluctant to appoint him, Willard closely associated with Adlai Stevenson. Here we go again. But Wirtz to Kennedy and smoothing Kennedy’s credited Arthur Goldberg for going the right person for the job. still ruffled feathers, and Wirtz was James J. Reynolds, a self-de- Goldberg chose former NLRB member, man.scribed liberal industrialist, a company Thus, the three top posi- panel—Goldbergtions at labor mimicked the tripartite from labor; the neutral or public representative. Reynolds from management; Wirtz, had that in mind. And I’m certain that Arthur Goldberg with other high-level appointments. ment to civil rights and equality, African American who had worked for He appointed George Weaver, an Secretary for International Affairs. He the IUE, he was named Assistant as head of the Women’s Bureau. appointed Esther Peterson, a woman, the He appointed Jerry Holleman from the AFL’s traditional wing to third position in the department’s chain of command. Later Goldberg sec- successfully moved to have Peterson’s position elevated to assistant mak- retary status, emphasizing the importance of women’s issues and the ing Esther Peterson at that time the highest ranking woman in Kennedy administration. 300 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 16 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 13 Side B 08/13/2013 08:57:11 B 08/13/2013 13 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 14 Side A 08/13/2013 08:57:11 Goldberg quickly assumed a prominent role in the Cabinet. role in prominent a assumed quickly Goldberg op- He Goldberg suc- of his tenure as Secretary of Labor, In the first days a willingness to use the influ- So early on, Goldberg demonstrated to end the strike at the I’ve left out the invocation of Taft-Hartley on the willingness of both Presi- It is worth reflecting at this point He was influenced by his life experiences—the depression, World M K posed an incomes policy proposed by economist Walter Heller and John Walter Heller by economist incomes policy proposed posed an being a “wage was too close to ground that it Galbraith on the Kenneth to both been an anathema which would have control, a policy and price” and labor.management that the adminis- Goldberg suggested Instead what’s called based on and price” guidelines “wage tration implement methods rather persuasion, and voluntaristic jawboning, or heavy-duty by the government. policy enforced directly than a heavy-handed and he believed in the collective bargaining system Goldberg believed price-and- be successful in preventing inflationary that jawboning would strikes could be minimized.wage increases if his Labor De- And he and degree. mediation to an unprecedented partment staff employed workers’ strike at a New York City tug and ferry boat cessfully mediated who later defeated of Governor Nelson Rockefeller, the personal request of New York.Goldberg for governor he success- And shortly afterwards, commercial airline pilots.fully mediated a wildcat strike by He also maritime strike by 80,000 longshore- urged Kennedy to intervene in a invoke Taft-Hartley’s cooling-off period man, convincing the President to and national energy dispute provisions. After the strike was enjoined, board’s recommended settlement. the parties accepted the Taft-Hartley end strikes and to settle disputes. ence and power of his office to help the effort.And the nation was rewarded by Goldberg’s biographer, reports that during the first half of David Stebenne, sitting across here, hours to strikes since World War 1961 the nation lost the fewest working II. brief memoir, during an interview, Ar- metropolitan opera, which in his thur Goldberg commented on. The question that was repeatedly asked singers be a national emergency dis- was: How could a strike by opera pute? Kennedy says it is, and And his answer essentially was: If Jackie then it is. to act in all of these disputes. dent Kennedy and Arthur Goldberg could and should act in private Goldberg’s belief was that government labor disputes with public ramifications. This is in stark contrast to our comparatively hands-off approach of more recent administrations. I’m not just knocking the current or even the preceding administration. War II, the Korean conflict, the Cold War, the ‘50s recessions. He firmly pub- believed that government should take an active role in pursuing the lic good. a pragmatist rather than as an He is most often remembered as 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION 301 \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 17 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 14 Side A 08/13/2013 08:57:11 A 08/13/2013 14 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 14 Side B 08/13/2013 08:57:11 M K C Y He favored the improvement of the lives of the working class, the of the working of the lives the improvement He favored (Applause.) Jerry. PROFESSOR OLKEN: Thank you, our first speaker wants to say Before I introduce our last speaker, JUDGE SHADUR: Yes, that’s all. You’ve heard about inside stories. I’ve got the ultimate inside story were living in Washington, Doro- At the time that he and Dorothy PROFESSOR OLKEN: Our final speaker is David Stebenne, a pro- 302 LAW & INFORMATION OF COMPUTER JOURNAL idealist. get out how to a master of figuring is true that he was And it [Vol. matters. or in political in labor negotiation to there whether from here XXIX him was the reading about me the most when what struck Nevertheless which were in a set of ideals world view of Goldberg’s firm anchoring the New Deal. points out, during as David Stebenne acquired, gender barriers in so- racial and, to a lesser degree, elimination of class, ciety. civil libertarian. He was a confirmed his early Although he spent and benefits and attorney fighting for higher wages career as a labor certainly conscious of conditions for workers, he was improved working competitiveness considerations such as business the long-term broader and national security. He did not He was the sincerest type of patriot. believed that our form was without fault, but he believe that his country best.of government was about Arthur For me, the remarkable thing well, was his ability the most admirable thing as Goldberg, and perhaps his ideals into ac- and pragmatism and to translate to bridge idealism tion. Thank you. raised.something in response to what Jerry So I yield the floor for a minute or two to Judge Shadur. was true because I trusted everything that Arthur told me, and I trust it that Arthur said. living with them.thy’s mother, Esther Kargans, was And as Arthur told picks up the phone and a voice it, the telephone rings and Mrs. Kargans says “Can I talk to Arthur?” And she said—I won’t try to duplicate her broken handwriting—but in any event she said, “I’m sorry, he’s not in. voice says “Tell him the President Can I take a message?” And the called.” You understand he’s the Secretary of Labor, right? “Tell him the President called.”thought for a moment and said, And Mrs. Kargans “The president? I pass. The president of what [sic]?” fessor of history and law at The Ohio State University. Professor Stebenne, who is also a lawyer, is the author of three books and numer- \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 18 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 14 Side B 08/13/2013 08:57:11 B 08/13/2013 14 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 15 Side A 08/13/2013 08:57:11 His talk is: How Law Practice in Washington Helped Shape Arthur Helped Shape in Washington is: How Law Practice His talk David. Thank you, Sandy.PROFESSOR STEBENNE: you, all the Thank if we met Ar- to make, since we’re confessing I have one confession I’ll come clean on that too.Arthur Goldberg, Arthur I first met said to me, “Well, you know, I’ve And so I said that to him and he So I ended up writing about him. And I went to see him on and off Arthur Goldberg was a native Chicagoan and he never ceased being M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION reviews. book essays and ous articles, Press University In 1996 Oxford 303 New Deal Goldberg: biography, “Arthur his acclaimed published Liberal.” Views on Privacy. Goldberg’s members of the panel.Judge Shadur, I feel terrible. have I wish I could of my time, but I’m last.yielded you some early, you can If I get done have some more. when we met. thur Goldberg and of 1981.Goldberg in the fall Very memorable for me. a senior in I was college. the Dem- thesis on the relationship between I was doing a senior ocratic Party and organized labor. And I went to interview him. And he his life and career, because Ronald was at a very interesting stage of as President.Reagan was then in his first year Justice Goldberg had under President Carter, with am- had a job, a significant appointment he expected by 1981 to be in govern- bassadorial rank, but I don’t think ment again. And so he was entering this period of semi-retirement and reflecting on his career. And he startled me when I interviewed him be- to write a memoir.cause he told me that he didn’t plan This in a town a memoir, I mean, Washington, DC. where seemingly everyone writes now and I know about these people been reading these memoirs for years their memoirs.and I don’t like the way they write They’re not reliable. They’re too self-serving. a thing to do, so I’m just It seems to be too hard not going to do it at all.” of his life.for the last eight and a half years So I knew him in his 80s, in the 1980s period. And it was very interesting to talk to him, and he was willing to talk about almost anything. And the range of his knowledge by that point in his life was extraordinary. Literally he could talk about Field in the 1920s, that sort of what it was like to work at Wrigley thing—he as well as very intri- fan was a baseball fan, I’m a baseball – cate issues of American constitutional law. So it was a very interesting experience and I wrote this book.then I was asked to come speak And here and I was delighted to do that. a Chicagoan really. became a Washingtonian was So the only reason he really through a misunderstanding. I’m going to talk about that And \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 19 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 15 Side A 08/13/2013 08:57:11 A 08/13/2013 15 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 15 Side B 08/13/2013 08:57:11 M K C Y And I have a colleague here who is on the program tomorrow, Peter here who is on the program And I have a colleague in Justice Goldberg’s mind.So that was the idea Murray And Philip All right. So I’m writing this paper and I had word in advance that Goldberg becomes a permanent All right. So when does this happen? Until that moment, the late winter of 1948, Goldberg was not well 304 LAW & INFORMATION OF COMPUTER JOURNAL of his career.part to that when he went is And the misunderstanding [Vol. Union and of Steelworkers’ president of the Murray, then talk to Philip XXIX top lawyer, on the job as 1948, about taking in the winter of the CIO, “Well, said to Murray, organizations, Goldberg for both general counsel I like being from Chicago and Chicago and I’m I have a firm in you know, with my want to be identified from there and I and my wife’s from there there.firm there and be to split my And so if I do this, I want to be able and Washington, DC.” time between Chicago existence. all about this sort of bifurcated Swire, who knows It’s more Ohio, and partly a is partly a resident of Columbus, common today. Peter DC. resident of Washington, said, “Oh, sure, sure, have him say yes, that Murray was so eager to sure. Fine.”for out, when he started working And then Goldberg found he was awake, and pretty much worked whenever Murray, that Murray Murray was expected to work closely anyone who worked closely with with him whenever he was awake. And so the idea of being bifurcated, didn’t really work.partly in Chicago and partly in DC, And that’s, by the position at John Marshall, he had way, why he didn’t resign his faculty Marshall; and by the mid-1950s he hoped to continue teaching at John the scope of his responsibilities as a finally gave up on that idea because Washington lawyer just kept expanding. the time limits would be strictly observed. So I’m thinking to myself, the how his work as a Washington law- first idea is I’m going to write about Court.yer affected his tenure on the Supreme And very quickly I real- a written paper and too long a talk. ized that was going to be too long on privacy, which seemed relevant for And then I decided I would zero in this conference. So this is really about, as Sandy explained, how a legal practitioner in private Goldberg’s experience as a law practice, thinking about privacy, which mat- practice in Washington, affected his Court justice. tered a lot once he became a Supreme a labor lawyer there in March 1948, resident of Washington, DC, and negotiator for the United Steel- when he officially becomes chief contract lobbyist for the Congress of Indus- workers Union and chief Washington trial Organizations, the CIO. thir- known outside of Chicago; but doing these two new jobs for the next teen years made him into a major national figure. And given that we’ve referred to the various law firms, the law firm he created in Washington, \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 20 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 15 Side B 08/13/2013 08:57:11 B 08/13/2013 15 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 16 Side A 08/13/2013 08:57:11 All right. jobs, CIO and these two main work experiences, So these more influen- as a private practitioner was even And his experience distinct, specific privacy issues. So let me talk about some of those overly intrusive journalism.And so the first version of this is And is entirely wrong, although And it’s not so much that what’s reported Steelworkers and chief DC-based And so as a chief bargainer for the M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION about, the most I know the firm that’s Bredhoff, and Feller Goldberg, 305 we’ll talk about. this period and right, from for interesting implications counsel, had general Steelworkers’ subject were that complicated His views on views on privacy. Goldberg’s school or via issues in law study of privacy simply by the formed not real world experience practice in Washington gave him teaching; his law that kind of depth range of privacy issues. And having with a very wide for most members to privacy issues was unusual and breadth of exposure Court. of the nation’s highest directly to the Su- from private practice almost tial because he came preme Court. for words, he was only in the Labor Department In other a half.about a year and longer peri- Most Supreme Court justices have bench, something like in government service or on the ods where they’re that. immediately to went from private practice almost Justice Goldberg as a private practitioner mat- the Supreme Court. And so his experiences tered a lot. associated with Samuel Warren and First, there was the old privacy famous article in 1890 about privacy. Louis Brandeis, the authors of this of a reaction against overly intrusive And they wrote that article out butting into Samuel Warren’s journalists, literally, newspaper reporters will of Warren. social events and so on against the during the 1950s as a byproduct of Goldberg experienced that firsthand press in the 1950s remained suspi- his new jobs. Much of the nation’s powerful labor unions, like the Steel- cious of these great big and now unfair press coverage was a fact of life workers and the CIO, and so the including Goldberg’s clients, espe- during the 1950s for labor unions, organized labor. cially on the topic of corruption within the gentlest way of describing the that happened on occasion, I suppose it was under contextualized, right, if problem with coverage then was you could certainly do it that way you want to write an antiunion story, and that’s what would go on. prob- lobbyist for the CIO, Goldberg had to cope with that kind of privacy lem on a regular basis. in the labor world noted then And his associates labor that Justice Goldberg was unusually sensitive to press criticism of clients and of his own work on their behalf. Arthur Goldberg could be a bit thin-skinned about this, his associates said, when it came to unfair \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 21 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 16 Side A 08/13/2013 08:57:11 A 08/13/2013 16 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 16 Side B 08/13/2013 08:57:11 M K C Y in 1929, Olmstead v. United States Olmstead The Steelworkers Union, despite being a very respectable union and Union, despite being a very respectable The Steelworkers is like today, wonder, given what the technology Now, you might to late 1950s?So what is listening like in the mid Well, it’s a less two person in the Steelworkers So here, for example, is the number And so that’s the steel union. problem doesn’t affect So this But there are other kinds of privacy issues and he had in-depth ex- and he had in-depth of privacy issues are other kinds But there a very famous wiretapping case. a very famous wiretapping exactly that in the country in the 1950s, experienced one of the biggest of the furor over in a big way during the height kind of privacy invasion in the later 1950s. labor corruption right? they were being wiretapped, how they could know Peter Swire is twenty-first century of these issues, he deals with an expert on many comfortable with it. his computer there, he’s utterly technology, he’s got ‘60s, so I know a lot America from the ‘30s through the I’m a historian of about old technology. of the Steelworkers’ executive board, sophisticated era and so members plus the secretary-treasurer and the the top leadership of the union, phones were tapped in those days. president, they could know that their board meetings.It was something they discussed at And we have verba- so we can know for sure about this. tim minutes of those meetings and read them all. Twenty thousand pages worth, I’ve Abel, complaining about this prob- Union, the secretary-treasurer, I.W. board meeting held on September 10, lem at a Steelworkers’ executive 1957. I can to impress on every- So here he is speaking, “I want to try if of thing has gone on and how dastardly body the extent to which this sort the functions of an organization such it is and how impossible it makes as ours. As President McDonald has said”—that’s David McDonald, the president of the union—”our wires have been tapped. As a matter of know in your conversations with me in fact, many of you board members where we could barely hear each the past year that it got to the place on the wire and the drain was so other talk there were so many taps heavy you could hardly get through. I am satisfied that there hasn’t McDonald over any of his phones, or by been a conversation by President myself over any of my phones, in the past year that isn’t recorded.” his Goldberg in some sense as directly. I don’t think his own phones at law firm were tapped during this period. But his single most important client lived with this problem for over a year. 306 LAW & INFORMATION OF COMPUTER JOURNAL kind of of that the loss about concern to his contributed which press, [Vol.privacy. aspect of the issue. sensitive to that he was very In other words, XXIX about exces- was the concern as well. There those other ones posure to prompt sort that had helped of the police surveillance, sively intrusive dissent in famous Justice Brandeis’s \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 22 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 16 Side B 08/13/2013 08:57:11 B 08/13/2013 16 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 17 Side A 08/13/2013 08:57:11 What else to say about this? say about else to What invasion of privacy Then there’s the history, national security in American is a strange period And this But why does the FBI—what’s the trigger for opening the file? Well, Eisenhower administration offi- The next book I wrote was about an but it affects Justice Goldberg. So this is not an isolated episode, All right. So here we are. The FBI opens the file based on an erro- M K posed by the ever more elaborate system of FBI informants, and the file- FBI informants, system of the ever more elaborate posed by and his staff. J. Edgar Hoover FBI Director of then making propensities more directly, of privacy even kind of invasion experienced that Goldberg him in 1941. opened a file on the FBI actually because today. do justice to in the time I have which I can’t really The shorthand government and the September of 1939 the German explanation is in agreement. concludes their infamous nonaggression Soviet government elsewhere, from that Party line in the U.S. and And so the Communist when the Nazi Ger- of 1939 until June of 1941 moment, from September Party line is that the Soviet Union, the Communist man armies roll into they should not stay out of the European conflict, the Americans should the manufacture of the French in any way, including aid the British and armaments. United the Communist Party of the And so temporarily rearmament by the is very active in trying to resist States of America United States and aid to the allies. And Goldberg at this time is utterly on the opposite side of this issue. than one Arthur Goldberg.the world has blessed us with more And history Arthur Goldberg, who is active there’s some other utterly obscure Roosevelt administration’s efforts to in this sort of effort to protest the rearm and aid Britain and France. And so the FBI field office in Chicago that there’s this Arthur Goldberg who gets this report from an informant Party propaganda machine, and is doing the work of the Communist find there’s another Arthur Goldberg. they look up the newspapers and They think it’s the same person, right? So this happens more often than you might think in this era. Believe me, I’m a student of this era. Labor Department, then head of the cial, very senior, number two in the chief speech writer.USIA, then President Eisenhower’s This man had the same experience. His name is Arthur Larson. And in this same pe- more than one Arthur Larson.riod, the world has blessed us with There in Wisconsin who signs a Communist is an obscure one out somewhere so literally two FBI agents grilled Party-circulated peace petition, and this, right? the famous Arthur Larson about And I call him Justice Goldberg because that was how I knew him. It’s Su- an anachronism for the purpose of this talk, right, it’s all pre-U.S. preme Court, but I can’t shake myself of that verbal habit. they neous report conflating two very different Arthur Goldbergs, and he begin clipping the things they find in the Chicago papers and, aha, 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION 307 \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 23 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 17 Side A 08/13/2013 08:57:11 A 08/13/2013 17 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 17 Side B 08/13/2013 08:57:11 M K C Y The worst thing about this in some ways is that Herbert Hoover per- that Herbert Hoover in some ways is thing about this The worst All right. at- happen in part because the Germans Now, it doesn’t meant J. Edgar. I think you said Herbert, you JUDGE SHADUR: not Herbert. Excuse me, J. Edgar, right, PROFESSOR STEBENNE: into the file as well.J. Edgar signs this thing and it goes later I And So Goldberg never gets picked up. His secretary, however, in 1941 is the Chicago office, and said, And so Goldberg calls the FBI back, the U.S. Navy during World War The secretary ultimately serves in And this effort to build files sweeps in lots of people who really have 308 LAW & INFORMATION OF COMPUTER JOURNAL unions.represents labor lawyer. And he’s a Jewish so connect all And [Vol. member. if not a party operative he must be a communist the dots, So XXIX file. the origins of the there is hostilities be- in the event of 1941 saying that an order in sonally signs Goldberg is Soviet ally, Arthur and its then U.S. and Germany tween the to be arrested. detention. Preventive that’s the end of that relationship.tack the Soviets and is, But the point by Hoover. this order is signed other things at this time.He’s busy doing He really is. busy He’s very but he’s not doing this.politically by 1941, J. Edgar Hoover. Hoover; but not at the time, he think it’s very embarrassing to Director anyone. doesn’t know Arthur Goldberg from a Japanese American. And so literally he goes to the office the day after there’s no secretary.Pearl Harbor, that Monday, and And then the and she says “I’m in jail.phone rings and it’s the secretary I’ve been arrested by the FBI.” And Goldberg is incredulous. And so he talks to has no idea that he has his own file, the FBI agent about this. He still right? But he’s irate. Well, you know, the FBI, “It’s Pearl Harbor, she’s sure she isn’t part of some grand con- Japanese American, we can’t be spiracy.” “This is ridiculous,” Goldberg tells them. He hangs up, he calls a judge, describes what’s happened. The judge says “Well, if they won’t and get her out.” release her, I’ll give you a court order me a court order, you have to release “Look, a judge has agreed to give her to my supervision.” And the FBI isn’t happy, but they did that. II with distinction. Justice Goldberg is in the Army, serves as a deco- rated vet. no business being in these files. you create them, it’s very hard And once time to undo them, in other words, they take on a life of their own every you look at them.of the agency looks at them and If any senior member writes a comment, then they recopy the entire file. So the thing mostly, done it’s not all that long in terms of evidence, but by the time they’re \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 24 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 17 Side B 08/13/2013 08:57:11 B 08/13/2013 17 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 18 Side A 08/13/2013 08:57:11 Now, this FBI story, privacy story, has more to it than this. story, has more FBI story, privacy Now, this Because than it is today, a those days was a smaller town So Washington in hated going to Washington.Mrs. George Meany loved New She each other, it’s a is significant is people know But the reason this says “I want an appointment, I And so Goldberg calls up the FBI and so he doesn’t talk to some low- And they know he’s a major figure, know, I never did this.And Goldberg explains, “Well, you This is Goldberg leaves and Deputy And so at the end of this conversation, M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION released what’s That’s long. it’s 800 pages times a million it recopying 309 Act. Freedom of Information under the announced in DC, two jobs in Washington, takes on his once Goldberg notes that opens their file and of 1948, the FBI in March the newspapers on Arthur Goldberg.an existing file there is in these predecessor His the U.S. Communist Party.jobs was close to a way you can And so in the FBI would do this.understand why is out, Arthur Lee Pressman CIO or not? there been a real change at the Goldberg is in, has lot smaller.time to digress. tell you stories, but I don’t have And I could York City. a total bore. She found Washington every- So nothing to do, social life. and that’s the extent of the one has dinner parties, ways.small town in some in 1955, when And someone tells Goldberg merger, that “Arthur, you’ve he’s very busy working on the AFL-CIO belonged to a communist front organi- been named as someone who has file on you and you should go talk to zation and there’s probably an FBI them.” want to go talk to you.” And he had been dealing with them on internal over as the CIO and Steelworkers’ security matters ever since he took at their request. So this is not an general counsel, consulting with them odd thing for him to go to FBI headquarters. It’s very strange to go there about himself. So off he goes. Director Louis Nichols about his file. level flunky, he talks to Deputy from J. Edgar Hoover, the Director And Nichols, under direct instruction out the detention order.Hoover, shows him the file but takes That’s the embarrassing to Hoover.one thing in there from Hoover that’s So it’s the file but not all of the file, right? really are more than one.some other Arthur Goldberg. There As proud I’m not the only Arthur Goldberg.as I am to be Arthur Goldberg, I that you have are incorrect.” mean, literally, these other things Director Nichols writes up a memo, which is standard practice, summa- rizing the conversation and Nichols’ conclusion. And the memo survives. done And Nichols’ conclusion, and I quote, “Is that an injustice has been in Arthur Goldberg’s case.” that we’re wrong about this. In other words, this And so, you know, a later generation of labor activists would look on sort of informal working with the FBI somewhat suspiciously. But \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 25 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 18 Side A 08/13/2013 08:57:11 A 08/13/2013 18 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 18 Side B 08/13/2013 08:57:11 M K C Y But what I’m trying to convey here, however imperfectly, is these to convey here, however imperfectly, But what I’m trying experience in the represent a client who has this It’s one thing to All right. But I go on. you would think, in This would be plenty, II intelligence agency, the Office Goldberg worked for the World War And Goldberg had to learn. So he went to New York where the OSS from home, being in Chicago, and Goldberg in New York City, away Goldberg also made some lasting connections to the world of Ameri- 310 LAW & INFORMATION OF COMPUTER JOURNAL alterna- the part because FBI in with the to work obliged was Goldberg [Vol.tives—the and its staff, then Committee Activities House Un-American XXIX ran and his staff—were Joseph McCarthy committee that there’s that so unappealing.he worked—Ithe lot and so is the best of Hoover mean the world as it is. you live in Goldberg, right, that’s Arthur a very He’s person. realistic how invasive of one’s Goldberg a very clear sense of just experiences gave much of the infor- could be, the FBI, how unreliable privacy the agency not checked in collected was, unnamed informants, mation that they thus of how serious a same person and so on, and terms of is this the FBI of the 1950s the much bigger and better financed threat to privacy compared with earlier decades. had become when it happens to you, all it, it’s quite something else if ‘50s, or to read about a very central—heright, and so it’s really about it. doesn’t forget He gets along with J. Edgar Hoover thereafter. It’s a strange relationship. But of people and Hoover had all sorts of Goldberg had to work with all kinds strange relationships with people. I mean, he was around forever. privacy issues before he goes on the terms of a background exposure to Court. invasion posed by But there’s more, there is the kind of privacy the new, New Earth and the FBI/CIA. forerunner to the CIA, where he or- of Strategic Services, the OSS, the who operated in occupied Europe ganized a string of labor union spies and Italy. And he operated partly out of New York, partly out of Wash- ington, partly out of London. His field operatives were in Western Eu- rope and Italy for the most part. He didn’t know anything about doing by the head of the OSS to join that this kind of work before he was asked operation, the lawyer William Donovan. was personally trained in intelligence had an early operation, and he officer named William Stephen- work by a legendary British intelligence son, the man code named “Intrepid.” So that’s how Arthur Goldberg learns about espionage. family for the first time, is also briefly a target of enemy intelligence himself while working with Stephenson in New York City. And so he learns firsthand both what it’s like to spy and to be spied upon. Very unusual for a future member of the U.S. Supreme Court. can espionage.got to know well was William Among the people he \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 26 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 18 Side B 08/13/2013 08:57:11 B 08/13/2013 18 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 19 Side A 08/13/2013 08:57:11 And so all of these CIA-related experiences, like the ones with the CIA-related experiences, like And so all of these person who makes the merger And Arthur Goldberg really is the first prerequisite, was achieving The heart of that process, the basic talks to Reuther, who is at that And so Goldberg is the guy who And by the way, one of the best illustrations of this challenge con- M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION in or- an interest CIA maintained And the CIA director. a future Casey, 311 1950s.labor during the ganized inter- in a sense an Because labor was movement.national are unions in Western unions here, there There are going on. Cold War was in places where the Europe, time to And so from espionage about Cold War with Goldberg CIA would consult time the America. Europe and Latin efforts in per- was the logical And Goldberg knew people in the he had this background, he son to talk to because agency and so on. invasive American a sense of just how elaborate and FBI, gave Goldberg espionage was becoming. better, the The technology is always getting more systematic bigger, its operations are becoming agency is getting have known it. And another potential to privacy as we and professional, by Goldberg’s role kinds of privacy concerns raised then there were other the CIO in the mid about the merger of the AFL and in helping bring ‘50s.may seem person or a labor historian, this And if you’re not a labor labor history, but it was really like a sort of arcane aspect of American as a union lawyer in private practice. the most significant thing he did to reunite almost since they were The AFL and CIO had been trying thing for them to do. born, and it had been a very hard more than any other single individual. side, the AFL and the CIO, on the part an agreement on the part of each to stop trying to steal members of their unions, their member unions, so-called no-raiding agreement.from the other rival federation, the And complicated and difficult thing.working that out was an extremely You needed great legal sense, because it is needed great political sense, you to writing.an agreement, it’s a bargain reduced And you have to work George Meany, but never at the same intensely with Walter Reuther and each other, right? time, because they couldn’t stand Meany, who is the head of the AFL, point head of the CIO, and then with and redrafting this agreement. And and spends countless hours drafting larger merger of the AFL and CIO then once that’s accomplished, the finally became possible. And this is a tense and difficult process in part strong and clashing personalities because of the, shall I say, the involved. cerns something as simple as photographs. The three most influential when labor people, labor figures, in the country in the mid to late 1950s the the AFL and CIO merged, were George Meany, Walter Reuther of Autoworkers, and Arthur Goldberg. though all three were nation- Even \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 27 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 19 Side A 08/13/2013 08:57:11 A 08/13/2013 19 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 19 Side B 08/13/2013 08:57:11 M K C Y Now, what does this have to do with privacy? The privacy issue here have to do with privacy? The Now, what does this And he and I talked about that book. This is one of the things he I wish I had time to talk about it. It’s a fascinating story. It literally as I mentioned, is about the Bringing about the AFL-CIO merger, All right. Then there are—you think I’m done and I’m getting 312 LAW & INFORMATION OF COMPUTER JOURNAL of pictures photographed, often ‘50s and the late by known figures ally [Vol. are almost nonexistent. of them together the three not Again, this might XXIX I found this as a biographer to you, but be of interest —how it be could far I have in common. Thus so much work because they did possible, Goldberg to- Reuther and of Meany, one such photograph found exactly gether. Labor Secretary was serving as when Goldberg And it was taken at a ceremony in the Oval Office.in the early 1960s is President So there of this trio and is the is literally standing in the middle Kennedy and he them together, all right?functional glue holding I’m just trying And so the AFL-CIO challenging it is to have negotiated to emphasize how Meany and Reuther. in particular, the friction between merger given the, the merger in 1955 decision immediately after has to do with Goldberg’s a year later in about the AFL-CIO merger, published to write a book United.”1956, called “Labor history of So it’s supposed to be the official about it than anyone by the person who knows more the merger written else. liked discussing in retirement. And he, as he put it, that book leaves out a lot and intentionally so. All right.historian, this is not a very And to a satisfying concept. So I would ask him about this, I did ask him about formula for merger left so many issues this, and he explained to me the that the deed to maintaining that to be worked out later down the road two sides to move toward a truly fragile bargain and encourage the over a more complete and in- united labor movement, took precedence was made.formative account of how the merger All right. And so there in promoting this socially use- are competing interests and the interests takes precedence over an account ful process of a united labor movement union leaders actually behaved that gives a clearer sense of how various during the process. that’s satisfied the demands of is the kind that once you do something that satisfies the demands of negotiation, where once you do something horrified, “Oh, no, really, they said one side and then you go back, they’re yes to that? We have to keep going?” It’s that kind of negotiation. ever did as a union lawyer.most important thing that Goldberg But the when need to protect privacy issues was driven home in a different way he tried to write about it. write what I want to write in I can’t do it, can’t some sense, because there are other socially worthwhile considerations at stake. done—but there are other privacy issues that grow out of this period that \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 28 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 19 Side B 08/13/2013 08:57:11 B 08/13/2013 19 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 20 Side A 08/13/2013 08:57:11 For example, Goldberg’s single most important client, the Steel- single most important For example, Goldberg’s McDonald? Well, there are many. So what’s the problem with David the ‘50s, McDonald is a married Even worse in ways on challenging can be.Arthur Goldberg is as square as square It’s one of his most And it’s not just McDonald. I could give you other examples. close association with President And then there is the matter of his M K 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION mentioned. already I’ve of the ones from any are different the jobs To do 313 chief lobby- the Steelworkers, negotiator for as chief contract that he did Industrial took place, the once the merger CIO, and then, ist for the things about Goldberg to AFL-CIO, it exposed of the Union Department in the press if revealed either be damaging people that could prominent hearing.or at a government of is to learn all sorts so to do his job And that should not become public. things about people officially by President headed, from 1952 to 1960, workers Union, was David McDonald.many ways.McDonald is sort of an oddball in And In worked his way up the bureaucracy.other words, he had He was not a some sense when the have that job, he inherited it in natural person to Philip Murray, died in office.existing president, in a way he is And so of the labor movement.the Lyndon Johnson as head of He’s an accident as President of the as Johnson is kind of an accident a major union, just country. drinking problem.But among them he had a serious And the more would drink.stressful the situation, the more he So you can imagine in situation that could be.major negotiations what an unsatisfactory And composed of about 950,000 mem- how harmful it could be to the union, revealed. bers in the 1950s, if in fact this was his secretary, to use a ‘50s phrase. Catholic who is also carrying on with All right. right, where we have a deficit of refreshing qualities in today’s world, squareness. So he has to work with this person. He learns some things to know but that could be very harm- about this person he does not want working people if they become ful to the union and lots of ordinary known. conscious people in the labor move- Goldberg is among the most ethically to root out corruption in the late ‘50s ment and so he’s in charge of trying want to know then.and he learns a lot of things he doesn’t All right. for his contribution to our national Kennedy, whom he deeply admired political life.clear to me how much Arthur It’s never been entirely Goldberg knew about Kennedy’s peccadillos, right? So the most I ever that, got out of Justice Goldberg on this point was Goldberg’s admission “Well, I never understood Kennedy’s personality.” Right? And I think that is a nice, tactful way of covering that subject. But the point is he learned lots of things that could have been damaging if revealed publicly. \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 29 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 20 Side A 08/13/2013 08:57:11 A 08/13/2013 20 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 20 Side B 08/13/2013 08:57:11 M K C Y And so Goldberg’s encounters with all these privacy issues were re- privacy issues with all these encounters And so Goldberg’s over my time, but finally, having run a little bit What I want to say to emphasize this, Goldberg had a But at the same time, and I want So thank you for being good listeners. (Applause.) if there are any questions from PROFESSOR OLKEN: At this point PROFESSOR SORKIN: About ten minutes. PROFESSOR OLKEN: Ten minutes. questions from the audi- Any 314 LAW & INFORMATION OF COMPUTER JOURNAL the peo- of reputations just to the mean I don’t damage, when I say And [Vol. they were a causes of which and but to the organizations ple involved, XXIX part. named to the for someone breadth and depth in their ally extraordinary Court. ago this month, Court fifty years he ascended to the And so when just how much the sense from all of these experiences he had a very clear of new technologies and the government and the advent growth of media how harmful those traditional kinds of privacy and had tended to invade and Warren wrote In other words, when Brandeis invasions could be. was in its in- in 1890, that process, that problem their seminal article fancy. had taken place. By 1962 a transformation And so in that sense Supreme Court would beginning in the mid ‘60s the it’s no surprise that to privacy issues. pay more attention from 1962 to 1965 was what the Court had in Goldberg for a good reason, world experience with this growing a member with a great deal of real media, government, new technolo- social problem, an ever more intrusive gies that aided that kind of intrusion. And that, I think, captures as a justice in the privacy area and Goldberg’s greatest contribution others. with ordinary people In other words, he had a lot of experience to defend themselves against ever and groups that lacked the power of their privacy, either by the me- more effective and intrusive invasions dia or by the government. performed by the press, by law clear sense of the necessary functions agencies.enforcement, and by the intelligence Or to put that thought privacy entirely or primarily as another way, Goldberg did not approach of issues to be seen in their current an abstraction but rather as a set balancing of competing legitimate in- social context and that required a seems as relevant today as it terests. And to me, that kind of approach was fifty years ago. the audience we have—David, how much time do we have left? ence of any of our panelists? have any questions of each Do the panelists other? Anything? \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 30 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 20 Side B 08/13/2013 08:57:11 B 08/13/2013 20 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 21 Side A 08/13/2013 08:57:11 FROM THE FLOOR: Professor Stebenne, since you spent the most the you spent since Stebenne, Professor FLOOR: THE FROM that.talk a lot about We did not STEBENNE: PROFESSOR In was. Repeat what the question PROFESSOR OLKEN: Oh, surely.PROFESSOR STEBENNE: wanted to The questioner but not a lot, little bit about privacy in that regard And we talked a is no. But the thing I want to So the short answer to your question your book yet. FROM THE FLOOR: I haven’t read all right. PROFESSOR STEBENNE: That’s position on Israel? FROM THE FLOOR: What was his the things I liked about Justice PROFESSOR STEBENNE: One of So he was an old-fashioned kind of patriot and an old-fashioned kind But his experiences, I should say, with Israel were time-specific. In M K but I’m mostly sort of a twentieth century person.but I’m mostly sort of a twentieth In other words, I’m a time at the end of his life, can you give me future opinions about what he future opinions about can you give me end of his life, time at the modern technology? about privacy with thought different things. he did so many other words, phase of his life—heknow if in this late lucid, in other was mentally very was beginning to slow worked fine, it was just his body words, his mind down—but was in we talk about how new technology the point is did even more severe. this problem of privacy invasion some ways making he, and in some sense I, we were—Iin part because both am no longer— a technology guy. Peter, my colleague humanist primarily, I’m not really in the sense of having an up-to-date at OSU, is an exemplary person sense of twenty-first century technology. Goldberg and I did not. So it was challenging for us—let to keep a small tape me illustrate this point – and operating with the tape turned recorder equipped with batteries our conversations.over properly during the course of All right? in Washington, DC, to the end emphasize is he remained very networked in, by that point, high reaches of the of his life, with professional people government. the problems he had ex- So he definitely had a sense that ways were getting more severe.perienced continued and in some So I’ll stop there. ways very brilliant and also rather Goldberg was that he was in some uncomplicated. All right? of defender of Israel, supporter of Israel. other words, his Israel was the Israel of the founding and the founding generation. All right? history to the state of Israel So there is now more 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION 315 \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 31 24-JUL-13 16:01 C Y 33835-sft_29-3 Sheet No. 21 Side A 08/13/2013 08:57:11 A 08/13/2013 21 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 21 Side B 08/13/2013 08:57:11 M K C Y FROM THE FLOOR: Are you talking about what Goldberg thinks or what Goldberg you talking about FLOOR: Are FROM THE thinks. No, no, what Goldberg PROFESSOR STEBENNE: In other Does that help? FROM THE FLOOR: Yes. PROFESSOR STEBENNE: All right. Good. I’ll stop there. to add, and correct me if I’m PROFESSOR BERENDT: I want PROFESSOR STEBENNE: Right. And he did that even though it is that formula, he used the word MR. FELDMAN: When he wrote FROM THE FLOOR: So could you connect up, David. You have this 316 LAW & INFORMATION OF COMPUTER JOURNAL controversial. more become Israel has state of ways the in some and All [Vol.right? asked But when I first — XXIX you think? was formed during the founding.words, his opinion so to him, as he And like asking an Irishman—becauseput it to me, it was I asked him this question, literally—How Ireland? Right? do you feel about home rule for nuanced, complicated is not the most, in some sense, In other words, this issue.approach to this that was trying to convey to me was But what he of the heart as well as the head.there was an affinity right? And so All well.he knew Golda Meir which There was a picture of them embracing, friendliness of this. ways in terms of the warmth and is bizarre in some on between the two of them.Nothing is going he had an It’s just that of the birth of Israel’s experience. affinity with Israel that grew out United Nations for our country during wrong, he was Ambassador to the the 1967 war. And as part of the settlement of the war, he was largely 242 which created the land-for- responsible for the drafting of Resolution extent is still the formula dis- peace formula, which to a considerable cussed today. to be in.a rather awkward situation for him All right? He was a leading during the midst of this. Zionist who was also our UN representative with the British ambassador and the But he worked away at the problem two of them developed that formula. I’ll stop. intentionally so it wouldn’t “boundaries” in a way that was ambiguous be—it was to be worked out later whether that meant exact boundaries on or starting out with boundaries, which is still the discussion going today. wonderful history about the ten different reasons he’s a privacy maven \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 32 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 21 Side B 08/13/2013 08:57:11 B 08/13/2013 21 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 22 Side A 08/13/2013 08:57:11 Gris- . of the concurrence Why did he write Griswold the way he did? the way PROFESSOR STEBENNE: Well, I did ask him about that.ask him about Well, I did STEBENNE: PROFESSOR All compromises, a man who is an expert at forging Well, see, this is that facts facts of the case, and Goldberg believed But the specific might add something about that. JUDGE SHADUR: I wonder if I M K right? is it that the about that was why question I asked And the first the Ninth Amend- Justice Douglas’s opinion, lists opinion for the Court, explain it?ment but doesn’t Bill Douglas And he said to me, “Well, with this legal argument.wasn’t entirely comfortable So my bargain opinion if you just list will have my support for your with him was, “you what it means.” it and I will explain of unusual opinion in a compromise. And it is a kind right, and so there’s many ways. problem of doesn’t deal a lot with the potential Because it what’s a preexisting limits, how do you figure out how do you establish Ninth Amendment. biggest problem proposed by the right, which is the this privacy concern.plus procedure were most cases, activated Because drafted, it wasn’t really enforced.the way the Connecticut statute was I the Court is a bit of a contrived suit. mean, the case that ends up before to do in the state of Connecticut But, you know, if they were actually the possibility of one marital partner what the law envisioned, it opened not reproductive technology, contra- being questioned about whether or the other partner, which struck most ceptive technology, was used with indecent, right, that you would have members of the Court as positively on in the marital bedroom.a public discussion of what goes And so I Goldberg comes from.think that’s the key in terms of where Anything was written, would have offended like that, even before the Constitution people, right? In other words, that seems inconceivable—no pun in- talk about the other in to discuss such matters, have one spouse tended – whether it’s 1750 or 1950 or 1965. So this regard in an open courtroom, does that answer? All right, I’ll stop. not an original constructionist, be- You have to understand, Arthur was cause his view was that the Constitution—and we talked a lot about this although I was bringing with me some while I was learning, in a sense, misconceptions from law school—but his view was that the Constitution am- in many respects, and properly for a constitution, was deliberately biguous. ambiguous why? Deliberately Because nobody has an un- clouded crystal ball.that, I must tell, I found it And I found extraordinarily ironic. to ask Justice Scalia what he And I’m not going my thinks about the thing because, you know, revisionist history is not strong point either. 2012] GOLDBERG ARTHUR OF JUSTICE LEGACY I: SESSION have then you and 317 \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 33 24-JUL-13 16:01 wold C Y 33835-sft_29-3 Sheet No. 22 Side A 08/13/2013 08:57:11 A 08/13/2013 22 Side Sheet No. 33835-sft_29-3 33835-sft_29-3 Sheet No. 22 Side B 08/13/2013 08:57:11 M K C Y PROFESSOR STEBENNE: And the one thing I would add to that is add to that I would thing the one And STEBENNE: PROFESSOR to cut off this Well, I apologize for having PROFESSOR SORKIN: (Applause.) was taken.) (Whereupon a recess that Arthur Goldberg was a firm believer in and user of intentional am- in and user of intentional a firm believer Goldberg was that Arthur to agreement. hurtle obstacles it allowed you to biguity if his So I think was ex- in Philadelphia constitutional bargain of the original conception actly that. but we do need to keep on schedule.wonderful panel, We’re going to minutes, at 3:30, back break now and resume in fifteen take a brief coffee in this courtroom. There’s ele- invite you to join us down one flight. We to 3 East, where I’m the first set of elevators down vators around here, a penumbra of light refreshments. told you will find 318 LAW & INFORMATION OF COMPUTER JOURNAL [Vol. XXIX \\jciprod01\productn\S\SFT\29-3\SFT302.txt unknown Seq: 34 24-JUL-13 16:01 33835-sft_29-3 Sheet No. 22 Side B 08/13/2013 08:57:11 B 08/13/2013 22 Side Sheet No. 33835-sft_29-3