The Best Minds by Jonathan Rosen

Author:Jonathan Rosen [Rosen, Jonathan]
Language: eng
Format: epub
Publisher: Penguin Publishing Group
Published: 2023-04-18T00:00:00+00:00

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Michael was working for Owen Fiss that summer, researching his old friend Goldberg v. Kelly for an article Fiss was writing to defend the case not from its detractors but from supporters who admired it for the wrong reasons. These included none other than Justice Brennan, who had recently given a speech about the importance of passion in judicial decision-making, pointing as exhibit A to the welfare recipients whose benefits the government wanted to take away without a hearing, and whose heart-wrenching testimony had influenced his ruling in Goldberg v. Kelly.

This was heresy for Fiss, a philosophical idealist who believed that passion opened the law to ungovernable subjectivities and made justice seem like a lucky bleeding-heart break instead of a force bent to earth by jurists in tune with universal truths. Fiss was calling his article “Reason in All Its Splendor.” Despite his reverence for Justice Brennan, he wasn’t going to stand by as his former boss spoke of using the heart as well as the head to justify a ruling Fiss considered the product of reason acting through law to fulfill the Constitution’s ultimate promise.

Fiss began referring to two cases called Goldberg v. Kelly. He called the true version Goldberg I, and the fanciful version Goldberg II. Paradoxically, Goldberg II was upheld by the author of Goldberg I, who considered that ruling his finest judicial achievement. Michael understood such distinctions.

His confidence got a much-needed boost from the trust placed in him by Professor Fiss, who treated the Gothic law school like a secular seminary where the pure of mind divined the spirit of the Constitution, inscribed it in law journals, and transmitted it to initiates who carried it into the chambers of appellate and Supreme Court judges. Goldberg v. Kelly had itself been inspired by a law journal article called “The New Property.” Law professors, it turned out, were the unacknowledged legislators of the world.

Serving as the research assistant for a renowned constitutional scholar was a sort of clerkship for Michael. He was dispatched to discuss the case with Stephen Wizner, who had argued Goldberg v. Kelly before the Supreme Court as a young public interest lawyer before becoming a professor at Yale, where he ran the law clinic. He was almost as tall and just as disputatious as Michael. The two hit it off immediately, and stood talking in the street, so engrossed in discussion that neither felt the need to step up onto the sidewalk.

Wizner had run a law office out of a storefront in the Bowery, and recruited the welfare recipients whose powerful stories of poverty and vulnerability had stirred the court’s compassion twenty years before. Fiss could insist all he wanted that the Warren Court’s “rights revolution” was a rational extension of fundamental principles; Wizner knew there wouldn’t have been a rights revolution without emotional stories getting their day in court. His essay on Goldberg v. Kelly was called “Passion in Legal Argument and Judicial Decisionmaking.”

As for Michael, he was happy to be standing in a street in New Haven talking to a law professor about a Supreme Court ruling from 1970.

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