Today in Supreme Court History: July 25, 1965

7/25/1965: Justice Arthur J. Goldberg resigns.

Justice Arthur Goldberg

Comments

[Dan Schiavetta]

Miller v. Calilfornia, 418 U.S. 915 (decided July 25, 1974): Appeal from California state court obscenity conviction (actually the state appellate court’s affirmance) dismissed because no federal question, apparently because the proper standard under the Fifth and Fourteenth Amendments had already been decided by the Court in 413 U.S. 15 (1973), which had vacated the first affirmance and sent it back to the state appellate court, which again affirmed the conviction. This was essentially a redo of the 5-4 1973 decision, with Brennan, Stewart and Marshall again arguing that the state obscenity statute was unconstitutionally overbroad, and Douglas (with the ghost of Hugo Black chiming in) again arguing that any obscenity statute flunks the First Amendment.

Wasmuth v. Allen, 85 S.Ct. 5 (decided July 25, 1964): Harlan refuses to stay enforcement of a New York statute requiring chiropractors to pass exams in various medical topics before licensure; chiropractors were bent out of joint (sorry) by this allegedly arbitrary exercise of legislative power (14 N.Y.2d 391), but Harlan did not believe a public health measure should be stayed except in “demanding circumstances” and did not think there was a federal issue anyway warranting granting certiorari. No further history; either certiorari was denied, or the chiropractors gave up, or the "subluxations" were “adjusted” with state authorities.

Field v. United States, 1951 WL 44182 (decided July 25, 1951): (why was this not reported either in United States Reports or West’s Supreme Court Reporter?) Three applicants, including the writer Dashiell Hammett, were trustees of a bail fund and subpoenaed when four men convicted of Communist affiliation jumped bail. The three refused to hand over records, were convicted of contempt, were themselves denied bail, and applied to Stanley Reed as Circuit Justice pending appeal. He affirms the denial of bail because their refusal was undeniably “contemptuous” and their conviction would be affirmed by the Court. Apparently no cert petition was filed. Hammett’s tuberculosis worsened in prison, then when free in 1953 he refused to cooperate with the House Un-American Activities Committee and was blacklisted, his health declined and he died in 1961.

[F.D. Wolf]

Justice Reed's opinion in United States v. Field is reported at 193 F.2d 86. A few Circuit Justice opinions seem to turn up in the Federal Reporter rather than the United States Reports. I have no idea why. I noticed Reed was referred to as "Acting Circuit Justice" in the opinion. The Second Circuit was Justice Jackson's assignment. I don't know why Reed, rather than Jackson, handled the matter.

[Dan Schiavetta]

Thanks

[Dr. Ed 2]

Wasn't there a reason fir the resignation?

[David Nieporent]

There's a reason for everything.

[Dan Schiavetta]

LBJ wanted him to be a negotiator (as to what, I forget) with the promise that Goldberg would be renominated at a later point. Which is hardly something that one could count on. Goldberg most likely didn't like being on the Court and wanted something else to do. (Imagine having such choices!)

[Dilan Esper]

I think he liked being an advocate more than being a judge. He went back to law practice and was involved a number of high profile cases, including most notably Flood v. Kuhn.

[F.D. Wolf]

It is my opinion - and, I stress, just an opinion based on my reading, one with which the learned captcrisis might disagree - is that President Johnson really wanted to get his crony Abe Fortas on the Court, which, of course, required a vacancy. By this time the Vietnam War was becoming a major concern, particularly for the liberal wing of the Democratic Party, of which Goldberg was a major figure. Johnson asked Goldberg to step down and become his U.N. Ambassador.

I think Johnson essentially snookered Goldberg, convincing him he could be the man to end the Vietnam War. I think this involved Johnson's legendary powers of persuasion, an appeal to Goldberg's vanity and overestimation of his own abilities, an overselling of what Goldberg would be able to do, and perhaps an overselling of Johnson's own commitment to actually ending the war.

[Dan Schiavetta]

That’s probably true also. This was a couple of years before Johnson genuinely wanted the war to end. Thanks for the clarification as to what Goldberg was asked to do. Both men really were remarkably persuasive and effective, Johnson as a politician, Goldberg as a labor negotiator.

Johnson also wanted to appoint a black Justice (it would be Thurgood Marshall). He created the vacancy by appointing Ramsay Clark as Attorney General, forcing his father, Justice Tom Clark, to resign for recusal reasons.

[F.D. Wolf]

President Kennedy had appointed Thurgood Marshall to a seat on the Second Circuit Court of Appeals. Johnson convinced him to step down and become his Solicitor General. It takes a good piece of persuasion to convince someone to leave his lifetime appointment on the vague promise of a future appointment to a position that may not open up. (It also took a great leap of faith from Marshall).

Earl Warren was very resistant to Johnson's request that he head the commission investigating the Kennedy assassination, given his concerns about the separation of powers and the time it would take away from his judicial duties. Johnson essentially browbeat him into it, telling him he was the only man the American people trusted to do it and suggesting, if he didn't, it might result in a nuclear war with the Soviet Union.

A very persuasive man.

[Dilan Esper]

Yep. There's even tapes of LBJ persuading his tailor to let out his trousers a bit because of his... um... equipment.

[Dan Schiavetta]

I’ve heard that. It’s not about his genitals.

[The Margrave of Azilia]

His butt?

[Dr. Ed 2]

Didn't Goldberg resign because of some serious ethical issues?

Wouldn't that be relevant to mention?

[wolfefan]

You may be thinking of Fortas. Golberg resigned to become UN Ambassador. Any ethical concerns serious enough to force a resignation would likely have prevented that appointment.

[Dan Schiavetta]

today’s movie review: Seven Days in May, 1964

I first saw this on TV when I was in high school, at the urging of my (very Republican) father. Military officers, fearing that a disarmament treaty will invite a Soviet nuclear attack (and a lot of the public agrees with them), conspire to take over the U.S. government, using the excuse of a “nuclear drill” where the President is kept in hiding but actually they will kidnap him.

I won’t go over the intricate plot, but . . . this film is on youtube and I recently re-watched it. I was struck by all the great talent onscreen — Kirk Douglas (though I think his suit is too tight), Burt Lancaster, Fredric March, Ava Gardner, Charles Laughton (I mean Edmond O’Brien) . . . Douglas does a great job in the long scene where his character, hesitantly, presents to the President the evidence he’s assembled that his boss (Lancaster) is planning a coup.

Strange how men, in those days, when discussing the most urgent matters, first knocked back some whiskey.

Why doesn’t the John Houseman Admiral character, when confronted by Martin Balsam’s bluster, deny his knowledge of the scheme? Later, he is alone, having wine with his lunch. After the phone call where he knows the jig is up, he drinks the last of his wine (i.e., he knows that this is the last of his “good life”).

Ava Gardner even at age 41 was already known for playing “ruined women” (she’d done this in “On the Beach”, 5 years before). There were few good starring roles for non-young women in those days.

Charles Laughton (I mean Edmond O’Brien) chews the scenery as a stereotypical Fat Sweaty Drunk Southern Senator in a White Suit (though he’s one of the good guys). The scene with the (very sexy but uncredited) actress in the deserted restaurant near the secret army base — is she a prostitute who will do a sexual favor for him (ewww. . . .) or is she just angling for a good meal? Maybe he will “buy” her a $50 coca-cola? At first I thought that she couldn’t find any better “john”, that she was just not very good at what she did (scrawled on the phone booth wall: “For a moderately good time call Billy Jo at —”) but then I realized that she was desperate because the expected flood of Army non-coms that she could cajole never materialized.

I find it hard to believe that nobody in the airport, not even the nuns, noticed the Andrew Duggan character being hustled away in the few seconds when the Fat Senator’s back was turned.

A very satisfying line: Douglas, a much-decorated officer, being baited by the devious Senator (Whit Bissell) at a party, mentions the Senator’s various medals for “cocktail courage and dinner-table heroism”. People who insult the military get shot down (so to speak) over and over in this movie. (My sister was career Army.)

Is it possible to build a large Army base in the desert without anyone finding out about it? We found out later (with the “rendition sites”) that it is.

Fredric March was the best thing in “Inherit the Wind”. Here, I’m struck by the scene where he says the real enemy is not Lancaster but the nuclear age — “we’ve lost the ability to think we can control our destiny”. March is an implausibly philosophical and deep President (though we found out later that JFK, despite his shortcomings, was like that, uniquely), but he is certainly right as he slouches next to the flag and decries “the sickness, frustration, feeling of weakness . . . in this desperation we look for a champion in red, white and blue . . . every now and then a man in a white horse rides by and we appoint him God for the duration.”

Nowadays one sees this movie in a jarring light. It depicts a coup attempt — but recently such a thing actually happened, not only on Jan. 6 but in what went on in the Trump White House in the months leading up to it, the discussions of martial law, the army seizing ballot boxes. I don’t know if what happened under Trump was an example of what the movie warned about or a comic sendup of it (though not very funny). The Lancaster character and his accomplices are smart, accomplished, honest, decisive, brave war heroes, organized. The Trump people were inept, corrupt, lazy, disorganized. If anything they were stopped by the professional military, Lancaster types.

Finally, a little tangentially here, I noted the President as portrayed by March. Traditionally movies have portrayed our Chief Executive as conscientious, on-the-ball, and sometimes politically savvy (Lee Tracy in “The Best Man”), though sometimes indecisive (Michael Douglas in “Wag the Dog”) and rarely world-destroyingly psychopathic (the future Martin Sheen in “The Dead Zone”). But I don’t think I’ve ever seen him portrayed as a stupid, ignorant, vinctive, spoiled child. Perhaps because not even Hollywood could have imagined such a thing.

[Bob from Ohio]

"first knocked back some whiskey"

Maybe we should do that now. Our political decision making was better.

Too bad you spoiled the review with the inane comparison to Trump.

[Frank Drackman]

Now everyone's on the Prozac, the Zoloft, I prefer natural remedies (THC, Makers Mark)
What "Coup Attempt" on January 6th?? Trump was going to overthrow himself???
So what's gonna happen when Roosh-a sinks one of our Aircraft Carriers?? Supply Ships? Shoots down a C-17 (Thats what you do in War, shoot down/sink the peoples supplying your enemy)

Frank

[Dan Schiavetta]

If in say 2015, someone told a story of an order to seize voting machines and declare martial law, and inciting a mob to break into the Capitol to hunt down and coerce Congress into voting their way, and possibly murder the Vice President and Speaker of the House in the process, you (and everyone else) would have said, “Sounds like Seven Days in May!”

[Bob from Ohio]

Trump actually said: "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."

Doesn't sound like encouragement to murder.

[Dan Schiavetta]

No actual coup occurred in the movie either. Neither attempt succeeded.

[Dan Schiavetta]

Not what he said. He said to fight like hell and it was going to wild, etc.

[David Nieporent]

They did a remake in, I want to say, the 1990s. It was a TV movie and had Forest Whitaker as the star. Wasn't bad as TV movies go. Wasn't called Seven Days in May, though; was called the Enemy Within.

[The Margrave of Azilia]

"March is an implausibly philosophical and deep President (though we found out later that JFK, despite his shortcomings, was like that, uniquely)"

I think JFK himself told a gathering of Important People that this was the best assemblage of intelligence under one roof since Thomas Jefferson dined alone. Pre-emptively challenging your "uniquely" line.

[Dilan Esper]

March is an implausibly philosophical and deep President (though we found out later that JFK, despite his shortcomings, was like that, uniquely)

Oh come on. If there was any depth in the Kennedy White House, Jack was definitely out of his.

Kennedy specifically made a ton of policy mistakes (most notably drastically escalating the Vietnam War, invading Cuba, and tapping Martin Luther King's phones) precisely because he was such a shallow thinker. He's what we would now call a Harvard legacy- had he not been the son of Joe Kennedy he would have gotten a degree from Boston University and owned a car dealership or something.

[Syd Henderson]

I always figured Stephen King got the idea for the character in "The Dead Zone" from George Wallace, but carried to an extreme.

[Dan Schiavetta]

I can't think about "The Dead Zone" without thinking of Christopher Walken parodying his character on SNL. That actor was having a great time (also with "The Continental").

[Frank Drackman]

That bit in "Pulp Fiction" was great also

[Frank Drackman]

AlGore said it was based on him

[SRG]

Re Red Harvest - the inspiration for Yojimbo and hence, A Fistful of Dollars: https://crimereads.com/the-strange-cinematic-afterlife-of-red-harvest/

[Dr. Ed 2]

Or was Goldberg just taking the good ones no one else wanted?

[CJColucci]

The pool of potential Supreme Court clerks is overwhelmingly "the good ones" regardless of race, sex, religion, or what-have-you.
Then again, the same could be said for the pool of plausible candidates for admission at elite schools.

[CJColucci]

Funny, when I made substantially the same comment, it didn't come through.

[John F. Carr]

There has been talk of changing the way federal research grants are awarded. There is a time-consuming process where proposals are precisely sorted into order. It's a big waste of time for all involved because only around 10% or so are funded and there is no meaningful difference between an 85th percentile application and a 90th percentile application. So why not put the decent proposals into a lottery?

[CJColucci]

Something similar has been proposed for elite colleges and universities. It hasn't gotten anywhere.