Brennan’s Best or the Court’s Worst?

Goldberg v. Kelly, a landmark Supreme Court decision creating constitutional rights for “new property,” like welfare, turns 50 this month. William Brennan, the leading liberal justice of the 20th century, called it one of his best, if not his best opinion. He described it as “injecting passion into a system whose abstract rationality had led it astray” and “declaring that sterile rationality is no more appropriate for our administrative officials than for our judges.”

Yet Goldberg‘s birthday is not one to celebrate—and not just because Brennan denigrates the formal methods of legal reasoning that are guardrails of the rule of law. The opinion elides the essential distinction between private property and government benefits. Indeed, read with full force, it may suggest that both welfare and private property have the same status: both exist at the sufferance of government. Their only protection, then, are the due process rights the Court chooses to grant. Moreover, the opinion embodies judicial overreach. The Court pretends that it can calibrate the procedures for determining continued eligibility for welfare benefits, although it has no expertise in the subject.

While the decision has been distinguished and cabined, it has never been overruled. Its blurring of the distinction between private property and government benefits could easily gain new energy from some future justices—like those appointed by a socialist, to take a purely hypothetical example!

Goldberg v. Kelly was a challenge under the Due Process Clause to New York’s relatively elaborate process (described more below) for terminating welfare benefits. The most important question was why the Clause applied at all. The Clause reads “No person shall be . . . deprived of life, liberty or property without due process of law.” Welfare payments are obviously not life or liberty. Brennan argued instead that they were property. Of course, they are not property in the traditional sense of property that informed the Due Process Clause either at the time of the Framing or the Fourteenth Amendment, the latter of which made the Clause applicable to the states. Welfare consists of payments best understood as a gratuity from the state. They are not property at common law or even rights that resemble common law property rights.

Brennan did not deign to make a full argument that welfare benefits were “property” within the meaning of the Clause. He instead quoted with approval a lower court opinion that said that welfare recipients had “brutal need” for them, as if need created a property interest. With a sleight of hand, he also cited some cases in which the government was alleged, unlike in Goldberg, to have violated independent constitutional rights like those of the First Amendment. But these rights, unlike the Due Process Clause, are not trigged by a property interest and the government might violate them even if the interest does not rise to the level of property.

Most theoretically, Brennan quoted a famous law review article by Yale law professor Charles Reich that embodies the 1960s disregard for tradition, arguing that that society is built not around the rights recognized at common law or specified in the constitution, but around “entitlements.” Reich included within the concept of “entitlements” benefits given by the government, like welfare, and rights that are clearly property at common law, like the right to stock options and private pensions. All entitlements, he argued, deserved procedural protections.

Once that equation between new and old property is made, the opinion’s logic creates a dilemma. If the new property is really property, it would appear that government could not decide to do away with welfare benefits altogether or even lower them, just as it could not appropriate all or a portion of private pensions. Both would be takings. Alternatively, to keep the equation between old and new property without interfering with government’s capacity to modify government benefits, one would have to weaken the protection given to old property, eroding core protections of a civil society.

Also troubling is the opinion’s blithe implication that all our property is an entitlement—ultimately a matter of government creation and sufferance. Modern politicians sometimes make the same kind of argument, as when, in the heat of his 2012 reelection campaign, President Obama incautiously said to a hypothetical entrepreneur, “you didn’t build that.” But it is more disquieting to have this view implied in a deliberated majority opinion of the Supreme Court.

After deciding that welfare was property that triggered the application of the Due Process Clause, Brennan then determined that New York had not provided the process that was due. This part of the opinion showed off another hallmark of his jurisprudence—an unshakeable confidence that the Court was better than the political branches at making social policy.

New York did in fact provide an elaborate process before terminating welfare benefits. A caseworker who suspected that a recipient was no longer eligible for benefits had to meet face to face with him to discuss the matter. If the caseworker continued to think the recipient ineligible and his supervisor concurred, the recipient was sent a letter asking him to tell why he should not be terminated. He or his attorney could provide evidence of his continued eligibility. Only if such evidence were unsatisfactory would he be terminated. In addition, after termination the recipient could get a full trial-type hearing (with cross examination and other such procedures) to contest the termination.

Brennan nevertheless held that New York violated the Due Process Clause. New York was required to hold a full airing of the facts in a proceeding before termination, including cross-examination by a lawyer. Brennan in fact required a pre-termination, trial-type hearing even as he disingenuously said he did not require a form of judicial or quasi-judicial hearing. He offered no empirical evidence that switching the timing of a hearing would substantially improve accuracy, let alone improve it enough to outweigh the costs of paying out welfare benefits that cannot be recovered—costs that are borne by working taxpayers. Indeed, it is not clear that some third alternative might not be best of all, like spot checks of the accuracy of decisions to terminate benefits, with bonuses for caseworkers who get decisions right. Perhaps sensing his lack of empirical support, Brennan also implies that the hearing will promote the dignity of welfare recipients, although only a lawyer could think the route to dignity is cross-examination.

The Supreme Court has no expertise in the efficiency of bureaucratic procedures. Nor is there any reason to think that the political branches in New York struck the wrong balance. After all, New York chose to provide the welfare benefits. Moreover, states have a much better sense of their budget and financial tradeoffs than does the Supreme Court.

But Brennan does not give any deference to New York’s factual judgments about how to shape its procedures, nor does he order any further lower court hearings to take evidence on the question. Brennan famously called Edwin Meese’s defense of originalism “arrogance cloaked as humility.” Brennan’s jurisprudence certainly dispensed with the cloak.

Reader Discussion

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on March 19, 2020 at 09:23:44 am

Interesting post and ruling indeed. The dissenting opinion of Justice Black, raised the issue of bonds (as analogous to private property,or, contractual relationship). He claimed, that , I quote:

" But I know of no situation in our legal system in which the person alleged to owe money to[p278] another is required by law to continue making payments to a judgment-proof claimant without the benefit of any security or bond to insure that these payments can be recovered if he wins his legal argument. Yet today's decision in no way obligates the welfare recipient to pay back any benefits wrongfully received during the pre-termination evidentiary hearings or post any bond, and, in all "fairness," it could not do so. These recipients are, by definition, too poor to post a bond or to repay the benefits that, as the majority assumes, must be spent as received to insure survival."

So, he does recognize the fact, that, this is not property in the plain meaning of it. In fact, what they got, is public money ( statutory entitlements). But, that's what implies indeed, the fourteenth amendment.This is because, the latter, does dictate, in relevant part, I quote:

" nor deny to any person within its jurisdiction the equal protection of the laws."

So, if the financial aid, is made as right by law ( statutory entitlements) and unlawfully taken, the fourteenth amendment is to be implied here one may argue.Because, it is denying, the protection of the laws.For the law, is arbitrarily violated simply.


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El roam
on March 19, 2020 at 10:52:09 am

We are, most of us, suffering under a peer-reviewed, social-stigma-administered, voluntary, self-enforced, in-place quarantine due to the Red China virus (I said it, and it's true but politically-incorrect and, some say, racially-stigmatizing, so go ahead and banish me from this web site yet AGAIN,) and Professor McGinnis reminds us, on this already-depressing morning, of the dolorous golden anniversary of one of the worst Supreme Court decisions in US history, its opinion written by the Court's most intellectually-unscrupulous Justice, a creative, meddling politician and his ignominious ruling both unbound from the constitutional restraints of "abstract (and sterile) rationality," yet neither, as McGinnis notes, has been overruled.

Oh Unhappy Day!

Is such damnable judicial maladministration on the watch of the same man responsible for supervising the FISA Court? The Chief Justice better known as "It's Not a Penalty, It's a Tax Johnnie Roberts?"

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on March 19, 2020 at 11:23:28 am

My Mother worked for The Department Of Public Welfare of New York City after she graduated from St.John’s University, with a degree in Social Work. Two of her sisters, with Nursing degrees were visiting Nurses. My Great Grandfather died in a coal mining accident in Pennsylvania, and my Grandpa Leo had to go to work in his teens in the coal mines. His children were always grateful, as I assume, that Great Generation was, for the assistance they received from the Government when the churches were overcome with such a great need.
My Mother would often say that during her visits to these families in need, Most families were still a cohesive unit, and the greatest tragedy for so many families was that just as The Civil Rights Movement was starting to have some success, The Sexual Revolution hit, bringing with It programs that no longer served the family as a cohesive unit, and contributing to the end goal of The Sexual Revolution, the breakdown of the family. Nothing has contributed more to poverty than the breakdown of the family, and the objectification of the human person, and nothing has contributed more to the violation of The Due Process Clause, than the objectification of the human person.

The erroneous notion that sin done in private is not sin, has led to grievous error in both Society, and Christ’s One, Holy, Catholic, And Apostolic Church:
“If there is a union of a private nature, there is neither a third party, nor is society affected.” Jorge Bergoglio, prior to his election as pope.

From The Catechism Of The Catholic Church:
“1849 Sin is an offense against reason, truth, and right conscience; it is failure in genuine love for God and neighbor caused by a perverse attachment to certain goods. It wounds the nature of man and injures human solidarity. It has been defined as "an utterance, a deed, or a desire contrary to the eternal law."121

1850 Sin is an offense against God: "Against you, you alone, have I sinned, and done that which is evil in your sight."122 Sin sets itself against God's love for us and turns our hearts away from it. Like the first sin, it is disobedience, a revolt against God through the will to become "like gods,"123 knowing and determining good and evil. Sin is thus "love of oneself even to contempt of God."124 In this proud self- exaltation, sin is diametrically opposed to the obedience of Jesus, which achieves our salvation.125
1851 It is precisely in the Passion, when the mercy of Christ is about to vanquish it, that sin most clearly manifests its violence and its many forms: unbelief, murderous hatred, shunning and mockery by the leaders and the people, Pilate's cowardice and the cruelty of the soldiers, Judas' betrayal - so bitter to Jesus, Peter's denial and the disciples' flight. However, at the very hour of darkness, the hour of the prince of this world,126 the sacrifice of Christ secretly becomes the source from which the forgiveness of our sins will pour forth inexhaustibly.”
It is a sin to accomodate an occasion of sin, and thus cooperate with evils .“

Those who deny that sin done in private is sin, and thus desire to objectify the human person, by denying the inherent Dignity of the human person, who from the moment of conception, has been Created In The Image And Likeness Of God, with an intellect and a will, equal in Dignity, while being complementary as a beloved son or daughter, Willed By God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Worthy Of Redemption, to live in Loving relationship with one another in communion with God,
“reveal their contempt for law, all law, including Divine Law.”

“When God Is denied, human Dignity disappears.” - Pope Benedict XVI


In this Time in Salvational History, let us reorient ourselves to Life-affirming and Life-sustaining Salvational Love.
Only Good can come from that.

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on March 19, 2020 at 12:45:24 pm

McGinnis hits the nail on the head--Warren was--Frankfurter's words--simply a dumb Swede. Brennan was the guiding force behind the Court's gross and dangerous usurpation of power. And there has been probably no worse decision than the making of government-provided benefits constitutionally-protected entitlements.

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John Braeman
on March 19, 2020 at 15:08:24 pm

To add the injury of historical irony to the insult of Brennan's constitutionally- disastrous Supreme Court career consider the following: 1) Brennan, a state judge Democrat, was nominated by Republican President Eisenhower based on the recommendation of Attorney General Herbert Brownell whose superficial vetting consisted of hearing Brennan give a speech from which Brownell thought Brennan would be conservative; 2) Eisenhower wanted to appoint the highly qualified Brownell but was thwarted by fears that Southern segregationists in the Senate would block Brownell's nomination because of his role in Brown vs. Board, the Little Rock school desegregation matter, the Civil Rights Act of 1957 and his hard-line support for school integration; 3) Eisenhower's nomination of Brennan, a Roman Catholic Democrat, was politically-rationalized on the grounds that it would boost support for Ike among Catholic Democrats (who opposed birth control and abortion which Brennan supported in Griswold and Roe;) 4) Senator Joseph McCarthy voted against Brennan on the suspicion that he was insufficiently anti-communist (was he right?) 5) David Souter, a Brennan clone, was nominated by Republican GHW Bush to replace Brennan after Bush's Chief of Staff from New Hampshire assured Bush that New Hampshire state judge Souter was conservative; 6) During his nomination hearing Souter praised Brennan as one of the giants of Supreme Court history whose seat he would be honored to fill (grounds alone for GHW Bush to have withdrawn Souter's nomination immediately.)

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on March 19, 2020 at 18:02:02 pm

"... (grounds alone for GHW Bush to have withdrawn Souter's nomination immediately.)"

Nope, George Herbert Walker Bush had a problem with "lip reading" both his own and that of others. BTW: One wonders if Brennan's rather creative and expansive explication of the DP Clause will be sufficient to cover all those Californians once Gov. Newsom implements Martial Law as a result of the CHICOMM VIRUS.

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