Goldberg, Arthur J. (1908–1990)

2012-06-28 01:00:36

Over the nearly six decades of his working life, Arthur J. Goldberg was a consummate public citizen. In that period, Goldberg served as a captain and then a major in the U.S. Army Office of Strategic Services during World War II, general counsel to the United Steelworkers of America and Congress of Industrial Organizations (CIO), secretary of labor to President John F. Kennedy, the nation’s ninety-eighth Supreme Court justice, U.S. ambassador to the United Nations under President Lyndon Johnson, the Democratic Party’s challenger to incumbent Republican Nelson Rockefeller in the 1970 New York gubernatorial election, and U.S. ambassador to the Belgrade Conference on Human Rights under President Jimmy Carter. Regardless of which post he held, Goldberg’s lifetime of public service evidenced conciliation, tolerance, and his dedication to improving the living standards of working Americans and protecting civil liberties.

The Early Years

Goldberg was born on August 8, 1908, on the west side of Chicago. He was the youngest of eleven children born to Jewish Russian immigrant parents. Goldberg’s father was a peddler, delivering produce by horse-drawn wagon until his death in 1916. After his death, Goldberg’s older siblings quit school and worked full-time to support the family. As the youngest sibling, Goldberg worked in various low-paying jobs—wrapping fish at a fish market, as a shoe salesman, as a vendor at Wrigley Field, and as a part-time library clerk—and continued his education. No doubt, Goldberg’s working-class childhood shaped his career-long dedication to the betterment of working Americans’ lives.

By the age of sixteen, Goldberg had graduated from Benjamin Harrison Public High School, a feat that none of his siblings had achieved, and, motivated by the well-publicized 1923 murder trial of Nathan Leopold and Richard Loeb, was determined to study law. Goldberg accepted a scholarship at Chicago’s Crane Junior College and also enrolled in classes at DePaul University. Despite his almost full-time work schedule, Goldberg continued to excel at school and, in 1926, secured a scholarship to transfer to Northwestern University.

Meanwhile, Goldberg also secured a scholarship to attend the Northwestern University School of Law, where, like many lawyers of his day, he began his study of law without having completed his undergraduate studies. While at Northwestern, Goldberg continued to work, performing hard labor on a parttime basis as a hod carrier in the construction industry. Nevertheless, as he had done throughout his academic career, Goldberg continued to excel, compiling the best academic record in the history of the law school, becoming editor-in-chief of the Illinois Law Review (the journal then jointly edited by Northwestern, the University of Chicago, and the University of Illinois) and graduating at the top of his class with a bachelor of science in law and a doctor of science in law by age twenty-one.

Goldberg’s graduation at such a young age posed a problem, however, because the Illinois Bar Association’s rules prohibited the admission of someone so young. Ultimately, Goldberg overcame this hurdle by suing the Illinois Bar and, arguing his own case, persuaded an Illinois judge to waive the age restriction.

Lawyer and Patriot

Newly licensed, Goldberg spent four years working as an associate at two Chicago-based firms, where his work focused primarily on legal finance matters. Unexcited by this work and after seeing the Great Depression take its toll on working-class America, in 1933, Goldberg opened his own law firm specializing in labor law. Goldberg’s associations with labor leaders and growing skills as a lawyer brought him to the attention of the CIO; in 1938, the organization asked him to advise the American Newspaper Guild during its strike against the Hearst Newspapers in Chicago and to defend guild pickets in court. Consistent with his sympathy and compassion for workers and his evident distaste for the violence that had plagued so many strikes, Goldberg accepted the representation. He prevailed by securing an injunction against the publisher that prevented it from using violence to dispel guild strikers and secured contempt charges against it after it disobeyed the injunction. With these victories, Goldberg emerged as a rising legal star of the nation’s labor movement.

After reading about the December 7, 1941, attack on Pearl Harbor, Goldberg demonstrated his patriotism by joining President Franklin Delano Roosevelt’s Office of Strategic Services (OSS)—the first civilianrun intelligence agency in modern history. Because of Goldberg’s experience with labor unions, his work at the OSS focused on gathering secret information from European labor unions. While at the OSS, Goldberg was commissioned as a captain in the U.S. Army and eventually ascended to the rank of major.

Whereas Goldberg’s prior work as a labor lawyer had been confined to the industrial and commercial centers of the Midwest and Pacific Coast, Goldberg made valuable contacts with domestic labor leaders on the East Coast—in particular, New York and Washington, D.C.—and abroad through his work at the OSS. Additionally, his exposure to and work with leading international trade unionists and Socialist Party leaders from every country in western and central Europe solidified his belief that tripartite cooperation (a ‘‘social contract’’) among workers, businesses, and government provided the best model for raising living standards of the working class.

After D-day, Goldberg returned to Chicago to reopen his law practice. He immediately became active in committees working to reelect President Roosevelt and reestablished ties with his former union clients, the membership of which (chief among them, the United Steelworkers of America) had swelled during wartime. But once the war was over, the cancellation of military orders and accompanying layoffs spurred widespread fear of postwar depression. The removal of wartime price controls and accompanying increases in prices without corresponding increases in wages resulted in an estimated 30 percent decline in the real income of those fortunate to still be employed. As a result, by November 1945, America was experiencing the beginning of one of the largest strike waves in history. In response to the strike wave, Congress passed, over President Truman’s veto, the Taft–Hartley Act—legislation that the labor movement had labeled a ‘‘slave labor law.’’

After the Steelworkers’ and CIO’s general counsel resigned in February 1948, the CIO’s leadership knew that they would need a brilliant labor lawyer to cope with Taft–Hartley. Goldberg was chosen. His victories on behalf of the Newspaper Guild, impressive earlier work for the Steelworkers, OSS service, contacts in the international labor movement, and open hostility to the Communist Party (which was alleged to have infiltrated the domestic labor movement and motivated, at least in part, the passage of Taft– Hartley) all made him a popular choice.

One of Goldberg’s greatest accomplishments during his early years as general counsel was his successful challenge to the steel industry’s refusal to bargain over pensions. Rather than advising the Steelworkers to strike over the pensions, which Goldberg believed would be illegal under the National Labor Relations Act, he petitioned to the National Labor Relations Board (NLRB), seeking a declaration that the steel industry had a ‘‘duty to bargain’’ over such fringe benefits. In NLRB v. Inland Steel Co. (170 F.2d 247, 7th Cir. 1948, cert. denied, 336 U.S. 960, 1949), the NLRB and Seventh Circuit Court of Appeals accepted Goldberg’s position. The Supreme Court denied review, thereby making an employer’s duty to bargain over fringe benefits a permanent fixture of the labor– management relationship.

Meanwhile, Goldberg was also working to hold together a domestic labor movement fracturing over allegations of corruption levied by Senator Estes Kefauver’s Special Committee to InvestigateOrganized Crime in Interstate Commerce and allegations of communist influence levied by Senator Joseph McCarthy. After the Senate’s censure of McCarthy in 1954, Goldberg worked with leaders of the CIO and American Federation of Labor (AFL) to create a ‘‘no raiding’’ agreement, which prohibited one union from soliciting membership from another’s members. The no raiding agreement ultimately led to the 1955 merger of the two organizations and formation of the AFL–CIO—a partnership that Goldberg had hoped to achieve all along and for which he deserves most of the credit.

Goldberg’s most important work as a legal advocate likely came in 1957 in Textile Workers Union v. Lincoln Mills of Alabama (170 F.2d 247, 7th Cir. 1948, cert. denied, 336 U.S. 960, 1949), which established the federal courts’ power to enforce arbitration clauses in labor contracts under the Taft–Hartley Act. Because 90 percent of existing labor contracts contained arbitration clauses under which unions promise not to strike if employers promise to submit grievances to an arbitrator, the Court’s ruling in Lincoln Mills meant that, rather than strike, unions could sue in federal court over an employer’s refusal to arbitrate.

Goldberg and President Kennedy

In 1957, the Senate authorized Senator John McClellan to chair a Select Committee on Improper Activities in the Labor Management Field that would pick up where Senator Kefauver’s Organized Crime Committee had left off: investigating corruption within and organized crime’s influence over the American labor movement and business. Although the committee was authorized and directed, as its name indicated, to investigate corruption in labor and management, its members quickly focused primarily on the improper activities of organized labor. For three years, the committee hearings were televised daily, exposing the public to such abuses as collusion between dishonest employers and union officials, extortions and the use of violence by certain segments of labor leadership, and the misuse of funds by high-ranking union officials. By 1959, polls indicated that Americans ranked ‘‘labor problems’’ on par with national defense, the space race, and education among the eight most important concerns facing the nation.

In response to the Committee’s revelations, the public, Congress, and Goldberg all agreed that corrective legislation was needed to address weaknesses in labor regulation. As the chief legal representative of the labor movement, Goldberg teamed-up with then-Senator John F. Kennedy and Senator Irving Ives—the Committee’s two most labor-friendly members— to craft an appropriate legislative remedy. Their legislative proposal would require reporting and disclosure for union officers, restrictions on administratorships (the mechanism by which an international union takes control of a local or other subordinate body), and modest election restrictions.

Goldberg believed that these reforms would prevent the kinds of thievery and misconduct uncovered by the McClellan committee from recurring but not go so far as to cripple the labor movement. But to secure support from leaders of many CIO affiliates who were opposed to anticorruption legislation (the CIO leadership believed that corruption was primarily an AFL problem), an additional title was added to the Kennedy–Ives proposed legislation to amend some provisions of Taft–Hartley that the CIO leadership had despised most. These Taft–Hartley ‘‘sweeteners,’’ as they became popularly known, led to the death of the Kennedy–Ives bill.

After the Democrats’ sweep of the 1958 congressional elections, Goldberg and Kennedy resumed their efforts to create what they thought would be appropriate remedial legislation. This time, Kennedy chose Sam Erwin as his cosponsor, but the bill they proposed was essentially unchanged from the Kennedy–Ives version. Unfortunately for Goldberg and Kennedy, the bill was significantly modified on the Senate floor. The modified version limited organizational picketing; outlawed ‘‘hot cargo’’ agreements, under which union workers could refuse to handle or process struck or nonunion work, in the carrier industry; regulated the conduct of union elections; and imposed strict bonding requirements on union officials. While labor debated whether to support the modified Kennedy–Erwin bill, Phillip Landrum and Robert Griffin sponsored their own version in the House—a version virtually identical to the modified Senate bill. By the first week of September 1959, the bill had passed both houses, thereby becoming the Landrum–Griffin Act of 1959.

Landrum–Griffin has been characterized by many as serving little, if any, benefit to organized labor and therefore as a failure for Kennedy and Goldberg. However, the friendship they forged and confidence that they established in each other would pay huge dividends for Goldberg in the years to come.

Mr. Secretary

After Kennedy’s successful presidential campaign in November 1960, which Goldberg forcefully supported, President Kennedy nominated Goldberg to be secretary of labor. Because of their past dealings and friendship and Goldberg’s work on Kennedy’s campaign, the nomination was not surprising.

With his election, Kennedy inherited a recession, and he gave Goldberg the primary responsibility of fighting it through labor policy. Goldberg’s weapons included increasing the minimum wage, extending unemployment benefits, encouraging youth employment, and revitalizing depressed local economies. Meanwhile, Goldberg also believed that while raising the minimum wage was important, keeping higher wages and prices from increasing was equally important. To achieve this latter goal, Goldberg believed that lost productivity due to strikes, which had become so frequent throughout the postwar era, would have to be minimized.

During the first six months of his tenure as secretary of labor, Goldberg personally intervened in and ended three key strikes affecting domestic infrastructure: the New York City tug- and ferryboat strike and related sympathy strikes reaching as far west as St. Louis in the railway industry; a pilots’ strike in the commercial airline industry; and a maritime workers’ strike over management’s efforts to avoid domestic labor laws by registering their vessels overseas. With Goldberg at the helm of the Department of Labor, the United States experienced the fewest working hours lost due to strikes since World War II.

Goldberg’s greatest achievement as secretary of labor arguably came, however, as a result of his strategic threat to resign the post in April 1962. In 1961, Goldberg had heard that the steel industry was planning to raise steel prices by over 3 percent. Goldberg took the lead in moderating negotiations for a master steel contract that would raise steelworkers’ wages only 2.2 percent and implied that steel prices would remain unchanged.

Just ten days after the contract was announced, U.S. Steel’s general counsel announced that U.S. Steel was raising steel prices 3.5 percent. In response, Goldberg offered to resign as secretary of labor and leaked news of his resignation offer to the media. The ploy worked. Business leaders outside the steel industry feared that a new secretary of labor would be much less likely to embrace Goldberg’s consensual approach to resolving labor disputes. Accordingly, they pressured U.S. Steel to accede to Goldberg’s demand that it not raise prices.

Mr. Justice

On August 28, 1962, just twenty months after Goldberg assumed the secretary of labor position and after Justice Felix Frankfurter resigned from the Supreme Court because of poor health, President Kennedy nominated Goldberg to the Court. Other worthy candidates, such as Solicitor General and former Harvard Law Professor Archibald Cox, Harvard Law Professor Paul Freund, and U.S. Court of Appeals Judge William Henry Hastie, had been available. But Kennedy chose Goldberg as he had chosen Byron R. White in April 1962 to fill Justice Charles E. Whittaker’s seat. Kennedy knew Goldberg and White well; he was comfortable with them personally, professionally, and ideologically; he trusted their dedication to the country and to the Constitution; and, in Robert Kennedy’s words, they were ‘‘his kind of people.’’ One month after his nomination, on September 28, 1962, the Senate confirmed Goldberg for his position on the Court.

Justice Goldberg’s tenure on the Court would be one of the briefest in history. After he had served only three terms, President Lyndon Johnson persuaded him (some claim that he was duped by Johnson, though Justice Goldberg vehemently denied this claim) to resign from the Court and become U.S. ambassador to the United Nations in 1965. Certainly, his brief tenure on the Court prevented him from having the direct influence on the Court’s jurisprudence that those with longer tenure achieved, and it is tempting to speculate how modern constitutional law might differ had Kennedy survived a two-term presidency and had Justice Goldberg, as is most likely, remained on the Court.

Even during the brief three terms in which he served, Justice Goldberg authored a handful of significant opinions in constitutional criminal procedure that contributed to what scholars have dubbed the ‘‘Warren Court Revolution.’’ In Murphy v. Waterfront Commission, 378 U.S. 52 (1964), he wrote that a state witness could not be compelled to give testimony that may be incriminating under federal law unless the compelled testimony and its fruits could not be used in any manner by federal officials in connection with a criminal prosecution against him. In Escobedo v. Illinois, 378 U.S. 478 (1964), the justice wrote that confessions obtained after a criminal suspect requested but was refused assistance of counsel were in violation of his Sixth Amendment rights and therefore inadmissible against him at trial. Justice Goldberg’s opinion in Escobedo paved the way for the Court’s landmark 1966 ruling in Miranda v. Arizona, 384 U.S. 436 (1966).

Justice Goldberg was the first justice to intimate that the death penalty might be unconstitutional on cruel and unusual punishment and due process grounds—views that were not embraced by the Court until 1972 in Furman v. Georgia, 408 U.S. 238 (1972)—in Rudolph v. Alabama, 375 U.S. 889 (1963), and Snider v. Cunningham, 375 U.S. 889 (1963). Additionally, in his concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 488 (1965), he gave an expansive interpretation to the notion that ‘‘additional fundamental rights’’ (such as a right to privacy that extends to marital sexual intimacy) not enumerated elsewhere in the Bill of Rights may rest in the Ninth Amendment. The justice also wrote for the six-tothree majority that held in Aptheker v. Secretary of State, 378 U.S. 500 (1964), that the denial of passports to members of the Communist Party and its affiliates was an unconstitutional infringement on the right to travel.

In addition to his contributions to the expansion of constitutional civil liberties through his written opinions, Justice Goldberg contributed to the ‘‘Warren Court Revolution’’ by voting with Chief Justice Earl Warren between 85 and 89 percent of the time. Moreover, after his resignation, the five-vote Warren majority hardly changed at all. President Johnson’s replacement for the justice was Abe Fortas, who not unlike Justice Goldberg, agreed with the chief justice between 83 and 92 percent of the time in each of his four years on the Court.

To this end, Justice Goldberg’s appointment turned the Warren Court’s pro-civil liberties wing into a majority by providing the long-awaited fifth vote. Indeed, contemporary and present-day commentators agree that his replacement of Frankfurter had a profound impact on the shape of the Court’s jurisprudence. For example, in 1965, just three years after Justice Goldberg took the bench, Yale Law professor and Frankfurter prote´ge´ Alexander Bickel noted that Justice Goldberg’s appointment ‘‘does more than merely change a vote; it alters the entire judicial landscape. . . . it is the magnetic field in which the Justices operate that is altered. . . . There is a new Court.’’ Over thirty years later, in 1998, legal historian Morton Horwitz agreed that ‘‘Goldberg’s appointment to replace Frankfurter . . . signaled a major realignment of the Court.’’ Similarly, as Chief Justice Rehnquist noted in memoriam of Goldberg:

Probably more important than any individual opinion which he wrote was the outlook on constitutional law which he brought to the Court. His succession to the seat of Felix Frankfurter gave the ‘Warren Court’ a solid majority for an expansive reading of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. He thus contributed far more to the jurisprudence of the Supreme Court than one would think possible in so brief a period of service.

Mr. Ambassador

On July 14, 1965, Adlai Stevenson, who was serving as U.S. ambassador to the United Nations, suddenly died. Believing Goldberg to be the strong negotiator he needed at the United Nations and seeing a chance to fill a Supreme Court seat with his friend Abe Fortas, President Johnson asked Goldberg to assume the post. Sensing that the nation needed a negotiated, rather than military, solution to the war in Vietnam, Goldberg accepted (after much hesitation) after Johnson guaranteed him that he would be Johnson’s principal advisor on all decisions leading to a Vietnam settlement.

The ambassadorship proved frustrating for Goldberg as Johnson shifted his support for a negotiated settlement to increased military intervention. Goldberg had supported a de-escalation strategy all along and was not shy about sharing his views within the Johnson administration. After North Vietnam’s Tet Offensive in 1968 cast doubt on the soundness of the United States’ escalating U.S. military involvement, many high-ranking officials within the administration sided with Goldberg’s call for de-escalation. Goldberg’s victory was Pyrrhic, however, because Johnson resented him for his steadfast and public antiwar stance. Perhaps to punish Goldberg, Johnson announced on March 31, 1968, that Averill Harriman— not Goldberg, as he was promised—would be the United States’ chief negotiator on a North Vietnamese peace accord. Three weeks later, on April 23, 1968, Goldberg resigned as United Nations ambassador.

The Emeritus Years

After leaving public service, Goldberg returned to the practice of law by becoming a partner at a prominent New York law firm. In 1969, he decided to run as a Democrat for governor of New York against incumbent Republican Nelson Rockefeller. Rockefeller, a moderate Republican, enjoyed support from both parties and proved a tough incumbent to unseat. He defeated Goldberg by nearly 20 percent of the threeand- a-half million votes cast.

After his humbling loss, Goldberg returned to his farm in Marshall, Virginia, and to his old law firm in Washington, D.C. In 1977, President Jimmy Carter offered Goldberg one final tour as a diplomat when Carter appointed him U.S. ambassador to the Belgrade Conference on Human Rights. Goldberg performed very effectively, ‘‘battling the Russians like a tiger,’’ it has been said. After his return from Belgrade, President Carter awarded Goldberg the Presidential Medal of Freedom for his many contributions to his country in and out of government.

Goldberg died on January 19, 1990, after suffering the second heart attack since the death of his wife, Dorothy, in 1988. After receiving a full military funeral, he was buried at Arlington National Cemetery next to his wife and near his dear friend, Chief Justice Warren.


References and Further Reading

  • Abraham, Henry J. Justices, Presidents, and Senators, new and revised ed. Lanham: Rowman & Littlefield, 1999.
  • Berendt, Gerald, Gil Cornfield, Peter Edelman, Hon. Milton Shadur, David Stebenne, Wesley Wildman, and Willard Wirtz, Lecture: Arthur J. Goldberg’s Legacies to American Labor Relations, John Marshall Law Review 32 (Spring 1999): 3:667–723.
  • Goldberg, Arthur J. AFL–CIO: Labor United. New York: McGraw–Hill, 1956.
  • ———. Equal Justice: The Warren Era of the Supreme Court. New York: Farrar, Straus & Giroux, 1972.
  • Goldberg, Dorothy. A Private View of a Public Life. New York: Charterhouse, 1975.
  • Horwitz, Morton J. The Warren Court and the Pursuit of Justice. New York: Hill and Wang, 1998.
  • In Memoriam Arthur J. Goldberg 1908–1990, Northwestern University Law Review 84 (Spring/Summer 1990): 3–4:807–831.
  • Lasky, Victor. Arthur J. Goldberg: The Old & the New. New Rochelle: Arlington House, 1970.
  • Moynihan, Daniel Patrick, ed. The Defenses of Freedom: The Public Papers of Arthur J. Goldberg. New York: Harper & Row, 1966.
  • Rubin, Eva Redfield. ‘‘The Judicial Apprenticeship of Arthur J. Goldberg, 1962–1965.’’ Ph.D. diss., Johns Hopkins University, 1967.

Stebenne, David L. Arthur J. Goldberg: New Deal Liberal. New York: Oxford University Press, 1996.

Cases and Statutes Cited

  • Aptheker v. Secretary of State, 378 U.S. 500 (1964)
  • Escobedo v. Illinois, 378 U.S. 478 (1964)
  • Furman v. Georgia, 408 U.S. 238 (1972)
  • Griswold v. Connecticut, 381 U.S. 479, 488 (1965)
  • (Goldberg, J., concurring). Miranda v. Arizona, 384 U.S. 436 (1966)
  • Murphy v. Waterfront Commission, 378 U.S. 52 (1964)
  • NLRB v. Inland Steel Co., 170 F.2d 247 (7th Cir. 1948), cert. denied, 336 U.S. 960 (1949)
  • Rudolph v. Alabama, 375 U.S. 889 (1963)
  • (Goldberg, J., dissenting from denial of certiorari) Snider v. Cunningham, 375 U.S. 889 (1963)
  • (Goldberg, J., dissenting from denial of certiorari) Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448 (1957)

See also Aptheker v. Secretary of State, 378 U.S. 500 (1964); Capital Punishment: Due Process Limits; Capital Punishment: Eighth Amendment Limits; Escobedo v. Illinois, 378 U.S. 478 (1964); Fortas, Abe; Frankfurter, Felix; Freund, Paul A.; Furman v. Georgia, 408 U.S. 238 (1972); Griswold v. Connecticut, 381 U.S. 479, (1965); McCarthy, Joseph; Miranda v. Arizona, 384 U.S. 436 (1966); Ninth Amendment; Privacy; Right of Privacy; Right to Travel; Taft–Hartley Act of 1947; Warren Court; Warren, Earl; White, Byron Raymond