Why Justice Goldberg Cared So Much About Privacy
posted by Peter Swire
David Stebenne gave a fascinating talk today about how the personal experiences of Justice Goldberg made him very sensitive to privacy, and led to his strong pro-privacy concurrence in the Griswold case that established a right to privacy for use of contraceptives. David is a legal historian at Ohio State, now has a joint appointment with our law school, and spoke today at a John Marshall Law School conference on the history of privacy from Brandeis to today.
Stebenne has written a biography of Goldberg, and is a master of the historical record. Look at these personal experiences that shaped Justice Goldberg’s views on privacy:
(1) Brandeis and Warren-style press intrusions. Goldberg was the leading lawyer for the Steelworkers Union and the CIO during the 1950′s. The unions were subjected to many hostile press articles, often describing (or exaggerating) union corruption. The sorts of press excesses, at the center of the Brandeis and Warren privacy article, were lived by Goldberg.
(2) Intrusive police surveillance. The Steelworkers and other unions were pervasively wiretapped in the 1950′s. In one 1957 board meeting, the leadership reported that there were so many wiretaps on the line that they could barely hear each other talk.
(3) Mistaken FBI files. The FBI opened a file before World War II about a different person named Arthur Goldberg, who had suspected links to the Communist Party. Years later, Goldberg found out that a huge file had been accumulated on him based on this original, mistaken report. He met with the FBI, and had the unusual good fortune to clear the matter up. But he learned personally how invasive and unreliable FBI files could be.
(4) CIA spy and counter-spy. During World War II, Goldberg worked for the OSS, the predecessor of the CIA. For part of that time he was the target of enemy espionage himself. He knew the CIA kept a close eye on his clients in the labor movement, and thus knew more than most about the nature and scale of domestic surveillance by the government.
In short, Goldberg was not a privileged person who knew he had nothing to hide. Instead, he had direct personal experience with the intrusiveness and mistakes that could result from the media, intelligence agencies, and new technologies.
Insight can come from personal experience. Among other lessons from this history, it suggests some virtues of having judges and justices with a wide range of personal experience.
September 27, 2012 at 5:06 pm
Posted in: Constitutional Law, Privacy (Electronic Surveillance), Privacy (National Security)
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Responses (11)
Joe - September 27, 2012 at 5:50 pm
“Insight can come from personal experience. Among other lessons from this history, it suggests some virtues of having judges and justices with a wide range of personal experience.”
No no. Everyone is fungible. What are you Obama?
Orin Kerr - September 28, 2012 at 1:38 am
Interesting post, but doesn’t the virtue of having judges and Justices with a wide range of personal experiences depend on the persuasiveness of the positions that are thought to result from them?
Shag from Brookline - September 28, 2012 at 8:22 am
Joe: Is Justice Clarence Thomas fungible with Thurgood Marshall? (Were you tongue in cheek?)
Does Orin recognize the persuasiveness of Thurgood Marshall’s personal and PROFESSIONAL experiences? Not many Justices had the uphill, continuous battles that Marshall fought and endured.
Peter Swire - September 28, 2012 at 8:33 am
At some level, Orin is correct. Someone from a sheltered background, for instance, might not understand the troubles that other people go through.
Along with Marshall, another example in our lifetimes is Sandra Day O’Connor, who could not get a law firm job when she started despite being at the top of her class at Stanford Law School. It’s simply very hard for others in a case conference to say “that’s not a big deal” when a person in the room can tell a truthful anecdote about what it is like from the other side.
Here’s a speculation — campaign finance cases might seem different to the Justices if they had a couple of people in the conference who had had to spend x% of their time (where x is large) raising money to stay in the House or the Senate. The corrupting influence of the money chase is more persuasive when one of the Justices has lived that experience. Practical experience with something is different than even the best theoretical understanding.
Joe - September 28, 2012 at 10:33 am
Yes, Shag, you can infer a snark there. Thomas had his own struggles all the same. How personal experience affects a person is also not totally fungible.
As to #2, this is clearly a weighing of various things, and the operative word there was “can” come. No one thing guarantees anything really.
Orin Kerr - September 28, 2012 at 4:32 pm
Peter,
My point is that experience can produce a range of different opinions. One person who works extensively with a corrupt union under repeated investigation might take from the experience that investigations are dangerous, and will end up with a more pro-privacy view. Another person with the exact same experience might conclude that investigations are necessary to fight terrible corruption, and will end up with a more pro-law enforcement view. I agree experience is good; it beats ignorance. But whether experience leads to what is termed “insight” or “bias” generally depends on whether one agrees with the conclusion that has been reached in light of that experience.
Shag, as often happens, I recognize you are making an ideologically-driven point but I am not entirely sure what it is or how it relates to the conversation.
Shag from Brookline - September 28, 2012 at 4:36 pm
Orin: Apparently you continue to suffer from VC-itis.
Orin Kerr - September 28, 2012 at 5:15 pm
Is that inflammation caused by exposure to comment threads?
Shag from Brookline - September 28, 2012 at 7:11 pm
I’m not the one suffering from VC-itis, so I suffer not from inflammation (not even ‘rhoids) from either VC, which rumor has it is a subsidiary of Commentary.
Paul Horwitz - September 29, 2012 at 10:22 am
Orin, isn’t your position correct or possibly correct at the individual level, ie. not every “diverse” experience results in sound judgments or subsequent policy views on the part of the individual, but less so in the aggregate? I thought the virtue of diversity (not of any particular kind) on the bench was its potential for useful aggregations of information and experience, not simply that individual judges will be able to “empathize” in particular cases.
Orin Kerr - September 29, 2012 at 10:18 pm
Paul, I thought Peter was making an argument at the individual level, not the aggregate level. The aggregate is tricky, in part because it is an empirical question that is very difficult to evaluate accurately.
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