1. Casting a Long Shadow after 40 Years
Goldberg v Kelly
Our Challenge – to take an old familiar case and have something new and interesting to say about it.
I’ll show my age by saying I first read Goldberg v. Kelly 32 years ago in my law school administrative law course. And I still have my th Ed. Davis on Administrative Law text with Goldberg highlighted and annotated to prove it.
The inspiration for this presentation was a news article I read back in March marking the 40th anniversary of the Goldberg decision. I wanted to make this presentation unique and special and knew that could only happened if I got some outside help. So I enlisted my good friend and NAALJ’s good friend Prof John Gedid from Widener University who has researched and written extensively on due process issues. We decided early on that we wanted to breath some life into our presentation by adding persons who had actually lived and breathed this case. And we feel very fortunate to have located the California attorney, Peter Sitkin, who filed the first lawsuit on the due process issue decided in Goldberg—in what I have labeled the forgotten Supreme Court case of Wheeler v. Montgomery. But, I don’t want to give too much away because I’ve envisioned this as somewhat of a drama starting with setting the stage, introductions of the cast, an opening act with some twists and turns, the main event, and what happened after the curtain fell.
We’ve tried to liven things up by including some video and audio clips, including actual audio from the oral argument before the Supreme Court.
Casting a Long Shadow after 40 Years

2. Synopsis
Goldberg v. Kelly - product of a combination of factors and conditions
Goldberg v. Kelly’s history, including the forgotten California case of Wheeler v. Montgomery.
Later cases have undercut some Goldberg principles but it still casts a long shadow in the fields of administrative and constitutional law and on current administrative practices.
Here is the Synopsis for our presentation.
Goldberg v. Kelly was the product of a combination of factors and conditions and the outcome was not a given.
We’ll start by putting the case in historical perspective
Goldberg v. Kelly history from filing to decision, including the forgotten California companion case of Wheeler v. Montgomery.
Our position is that while later cases have undercut some Goldberg principles, it still casts a long shadow in the fields of administrative and constitutional law, welfare law, and on current administrative practices.

3. --Justice Felix Frankfurter
Due Process Quotes
The history of liberty has largely been the history of procedural safeguards.
--Justice Felix Frankfurter
The presentation starts with just a few quotes about due process.
The history of liberty has largely been the history of procedural safeguards
--Justice Felix Frankfurter

4. --Justice William O. Douglas
Most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule of law and rule by whim or caprice.
--Justice William O. Douglas
Most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule of law and rule by whim or caprice.
--Justice William O. Douglas

5. When government acts in a way that singles out … individuals …it activates a special concern about being personally talked to about the decision rather than simply dealt with Justice Harry Blackmun
Finally a quote from Justice Blackmun that I really like
When government acts in a way that singles out … individuals …it activates a special concern about being personally talked to about the decision rather than simply dealt with.
--Justice Harry Blackmun

6. Setting the Stage
Early 1960s social and political forces combine to stir the nation to address the growing problem of poverty.
Setting the Stage
In the early 1960s, social and political forces combined to stir the nation to address the growing problem of poverty.
A 1963 New York Times series on Appalachian poverty and Michael Harrington’s book The Other America (1962) sparked dissatisfaction about poverty in America.
President John F. Kennedy responded by initiating federal programs to address job creation, skills training, and hunger.

7. War on Poverty
President Johnson declared War on Poverty and implemented federal programs for Medicare and Medicaid, housing assistance, job training, public education, and legal services.
Factors and Conditions
In his State of the Union Address President Johnson declared War on Poverty. Through the end of his presidency, Johnson implemented a wide range of federal programs for Medicare and Medicaid, housing assistance, job training, public education, and legal services.

8. Poor People’s Campaign
In 1967 Martin Luther King Jr. organized a Poor People's Campaign to address issues of economic justice and housing for the poor.
Factors and Conditions
In November 1967, Dr Martin Luther King Jr. organized a Poor People's Campaign to address issues of economic justice and housing for the poor, which he called the second phase of the civil rights movement.

9. Poor People’s March on Washington 1968
In May and June 1968, about 40 days after King’s death, the Southern Christian Leadership Conference led a Poor People's march on Washington, including marches around the area of the Supreme Court.
Poor People’s March on Washington 1968

10. Welfare Rights Movement
Individual rights became an organizing principle in the 1960s and the welfare rights movement was born.
Factors and Conditions
Individual rights became an organizing principle in the 1960s. The civil rights movement was joined by the women's rights movement, gay rights movement, and most importantly for this presentation the welfare rights movement.

11. Legal Aid Society of New York 1910
The Poverty Lawyer
Traditional legal aid work involved routine legal advice to poor people
The Poverty Lawyer
While privately-funded legal aid societies have existed since the late 1800s, practicing poverty law meant, for the most part, providing routine legal advice to poor people.
Legal Aid Society of New York 1910

12. The Poverty Lawyer
Mobilization for Youth (MFY) Legal Unit, which filed the Goldberg v. Kelly lawsuit was one of the first programs to receive OEO funding.
The Poverty Lawyer
The Office of Economic Opportunity (OEO), headed by Sargent Shriver, was created in 1964 as part of the War on Poverty. Shriver included legal services in OEO community action programs as part of the anti-poverty efforts.
One office funded by OEO was Mobilization for Youth (MFY) Legal Unit, the legal aid program that filed the Goldberg v. Kelly lawsuit.

13. The Poverty Lawyer OEO Also Funds San Francisco Legal Assistance
Across the country in California, OEO funded a special projects unit within San Francisco Legal Assistance whose avowed mission was to overturn laws that worked to the disadvantage of the poor—the headline says it all—Lawyers paid to “Break the Law.”
My new friend, Peter Sitkin and Steve Antler become key players in the poverty law movement. Sitkin points out that despite the articles turn of phrase, it was the state and federal government who were often breaking the law, particularly due process guaranteed by the constitution.

14. Litigation Strategy
Poverty lawyers followed the litigation strategy of civil rights movement of pursuing impact litigation.
The Poverty Lawyer
Following the litigation strategy of civil rights movement, poverty lawyers pursued impact litigation and class action lawsuits to improve the lives of poor people.

15. Poverty Lawyer’s Goals
Welfare rights lawyers wanted a Brown v. Board of Education decision for the poor including:
Constitutional "right to live" with a legal guarantee of a minimum standard of living to all citizens.
Extending the strict scrutiny given racial classifications to classifications based on wealth.
The Poverty Lawyer
Some lawyers within the welfare rights movement envisioned the equivalent of a Brown v. Board of Education decision for the poor, including:
A constitutional "right to live“ guaranteeing a minimum standard of living to all citizens.
Extending the strict scrutiny given racial classifications to classifications based on wealth.

16. Early Successes King v. Smith (1968) Shapiro v. Thompson (1969)
Alabama’s “substitute father” rule—denying AFDC to single mothers who regularly cohabited with a man—violated the Social Security Act’s definition of a needy child.
Shapiro v. Thompson (1969)
Legal residency requirements for AFDC violated a person’s fundamental right to travel without a compelling government interest.
Sign of things to come—Brennan states: “This constitutional challenge cannot be answered by the argument that public assistance benefits are a privilege and not a right.”
Early Successes
King v. Smith (1968). In an unanimous decision authored by Chief Justice Warren, the Court ruled Alabama’s “substitute father” rule—denying AFDC to single mothers who regularly cohabited with a man—violated the Social Security Act’s definition of a needy child.
Shapiro v. Thompson (1969). In a majority decision authored by Justice Brennan, the Court ruled legal residency requirements for AFDC violated a person’s fundamental right to travel without a compelling government interest.
In a sign of things to come, Brennan states: “This constitutional challenge cannot be answered by the argument that public assistance benefits are a ‘privilege’ and not a ‘right.’”

17. Early Successes
Poverty lawyers appealed 164 cases to the U.S. Supreme Court from 1965 to 1974.
Poverty law cases constituted 7% of the Court’s opinions during this period.
Early Successes
Poverty lawyers appealed 164 cases to the U.S. Supreme Court from 1965 to Seven percent of the Court’s opinions during this period were in poverty law cases.

18. Goldberg v. Kelly: Opening Act
The Plaintiffs’ Attorneys:
In 1967, lawyers at MFY Legal Unit and the Center for Social Welfare Policy and Law decided to sue the city and state of New York challenging welfare terminations.
MFY Legal Unit (now MFY Legal Services). David Diamond was the primary lawyer who prepared and filed the lawsuit.
The Center for Social Welfare Policy and Law (now National Center for Law and Economic Justice) assisted MFY with the lawsuit. Lee Albert became the lead attorney in the case.
Goldberg v. Kelly: Opening Act
The Plaintiffs’ Attorneys
In 1967, a steady stream of clients whose welfare benefits had been terminated led lawyers at MFY Legal Unit and the Center for Social Welfare Policy and Law—two New York welfare rights advocacy groups—to file a lawsuit against the city and state of New York challenging the cutoffs of welfare benefits without a hearing.
MFY Legal Unit. David Diamond was the primary lawyer who prepared and filing the lawsuit.
The Center for Social Welfare Policy and Law assisted MFY with the lawsuit. After the suit was filed and oral arguments were scheduled, the Center took the lead on the case, with its director, Lee Albert, as lead attorney. Albert had clerked for Justice Bryon White.

19. John Kelly and Plaintiffs
in January 1968 John Kelly, a 29-year-old homeless man came to MFY after his home relief check was cut off. He agreed to join the lawsuit challenging the cutoffs. He was told his name would “go up in lights.”
20 plaintiffs were added to assure the case won’t become moot.
Goldberg v. Kelly: Opening Act
The Plaintiffs
In January 1968, John Kelly, a disabled 29-year-old homeless African American, came to MFY after his $80.05 bi-weekly home relief check was cut off. Kelly explained that his caseworker had required him to move to a new Single Room Occupancy hotel. He obeyed to avoid having his benefits cut off but knew the hotel was filled with drug addicts and alcoholics. Unable to tolerate the hotel conditions, Kelly took refuge in a friend’s apartment. After a hotel clerk told Kelly's caseworker that he had moved out, she cut off his benefits without notice. Afterward, he wound up sleeping on the streets. When he agreed to join the lawsuit challenging the cutoffs, the MFY attorney told him his name would “go up in lights.”

20. Defendants and their Attorneys
The Defendants
Kelly’s lawyers decided to sue New York state and city officials and suing federal officials was too dangerous.
George Wyman, the New York State welfare commissioner, and Jack Goldberg, the New York City welfare commissioner were named defendants.
January 28, 1968, the lawsuit was filed in federal district court under the caption, Kelly v. Wyman.
The Defendants Attorneys
City Attorney John Loflin represented New York City, and Joel Sacks represented the State of New York.
The federal court invited the United States to file an amicus brief due to its interest in the welfare monies.
Goldberg v. Kelly: Opening Act
The Defendants
Kelly’s lawyers first had to decide whether to sue the city, state, and/or federal officials. They decided that suing federal officials was too dangerous.
George Wyman, the New York State welfare commissioner, and Jack Goldberg, the New York City welfare commissioner were named as defendants.
January 28, 1968, the lawsuit was filed in federal district court under the caption, Kelly v. Wyman.
The Defendants Attorneys
City Attorney John Loflin represented New York City, and Joel Sacks represented the State of New York.
After oral argument, the federal court invited the United States to file an amicus brief due to its interest in the welfare monies spend by the state and city.

21. Welfare Termination Process
Before the lawsuit, NY had no requirement of prior notice or hearing of any kind before benefits were terminated.
After the lawsuit was filed, NY State adopted rules providing for a pre-termination informal conference. Option A.
NY City believed the state’s pre-termination process was too costly and adopted a “paper review” process. Option B.
Termination Process
Before the lawsuit, NY had no requirement of prior notice or hearing of any kind before benefits were terminated.
After the lawsuit was filed, New York State adopted rules providing for a pre-termination informal conference with right to an attorney. Option A.
New York City believed the state’s process was too costly. It adopted a “paper review” process allowing the right to present written evidence to a supervisor. Option B.
Under both options, a full fair hearing was available after benefits were terminated.

22. Kelly v. Wyman (1968)
A three-judge court was convened, with Second Circuit Court of Appeals Judge Wilfred Feinberg presiding.
June 26, 1968, oral arguments made to the three-judge panel.
November 26, 1968, Judge Feinberg issues the decision:
Due process applied to welfare benefits terminations
NY State’s option A satisfied due process
NY City’s option B violated due process because the stakes are too high for a welfare recipient who has a “brutal need” for the benefits and the chance of errors is too great with city’s procedures.
Kelly v. Wyman, 294 F.Supp. 893 (1968)
A three-judge court was convened to hear the case because of the constitutional issues at stake: Second Circuit Court of Appeals Judge Wilfred Feinberg presided.
On June 26, 1968, Lee Albert for the plaintiffs and John Loflin and Joel Sacks for the defendants made oral arguments to the three-judge panel. The defendants conceded that due process applied to benefit cutoffs, but argued their procedures provided due process.
On November 26, 1968, the court issued its opinion authored by Judge Feinberg. (1) Due process applied to welfare benefits terminations, (2) New York State’s option A satisfied due process, and (3) New York City’s option B violated due process because the stakes were too high for a welfare recipient and the chance of errors was too great. Feinberg described the stakes as a “brutal need” borrowing language from a recent Yale Law Review article.
Kelly v. Wyman

23. Wheeler v. Montgomery (1968) The Forgotten California case
Meanwhile, across the country in California, two months before Kelly v. Wyman was filed, Peter Sitkin, with San Francisco Legal Assistance, filed a class action lawsuit on behalf of Mae Wheeler and all others similarly situated challenging the process used to terminate Old Age Security benefits.
Wheeler v. Montgomery

24. Wheeler v. Montgomery (1968) The Forgotten California case
Seven month before Kelly v. Wyman was decided, a California 3-judge panel issued the opposite decision on the requirement of a pre-termination hearing.
April 19, 1968, the California court decided the informal conference process California had adopted before cutting off benefits satisfied due process.
June 14, 1968, Sitkin and Steve Antler, a former MFY attorney, appealed to the Supreme Court.
Wheeler v. Montgomery (1968) The Forgotten California case
Seven month before Kelly v. Wyman was decided, a California 3-judge panel issued the opposite decision on the requirement of a pre-termination hearing.
On April 19, 1968, the California court issued a per curiam decision that the procedures California had adopted for holding an informal conference with a recipient before cutting off benefits satisfied due process.
Sitkin and Steve Antler, a former MFY attorney, filed an appeal to the Supreme Court on June 14, 1968, which was set to be heard in the October 1968 term.
Wheeler v. Montgomery

25. Race to the Supreme Court
Wheeler
Race to the Supreme Court
The attorneys in the NY case, Kelly v. Wyman, viewed the Wheeler v. Montgomery as having less compelling facts and believed the Court could rule that California’s informal conference process provided due process. Lee Albert feared the right to a pre-termination hearing might be lost if Wheeler was heard first.
Albert and the Center’s attorney devised a novel and aggressive strategy—they filed an amicus brief in Wheeler v. Montgomery to convince the court to use its discretion to hear both cases together.
The strategy worked. When NY City filed its appeal to the Supreme Court on December 23, 1968, the Court accepted the appeal and consolidated it for argument with Wheeler. The state of New York, which had essentially prevailed in the lower courts, did not appeal.
With NY State out of the picture, the case became Goldberg v. Kelly.
Goldberg

26. Goldberg v Kelly Preparing the Briefs
Loflin’s brief for the NY City was 9 pages.
Sylvia Law missed Woodstock the summer of 1969 to work on the Goldberg brief.
August 30, 1969, plaintiffs’ 74-page brief was filed.
Briefs reference Professor Charles Reich's works that welfare benefits are not gratuities but are ''property'' protected by the Constitution.
Preparing the Briefs
Loflin’s brief for the NY City was 9 pages. He later explained that he was convinced the city’s procedures were fair and city officials did not want to be perceived as redneck conservatives trying to kick mothers off welfare.
The attorneys in Wheeler and Goldberg worked together on the briefs and preparing for oral arguments during the summer 1969.
In a 1990 New York Times article, Prof. Sylvia Law of NYU Law School recalled that as a new lawyer and ardent rock music fan, she missed a chance to attend Woodstock in the summer of 1969 to work on the Goldberg brief.
The plaintiffs’ brief (74 pages) filed August 30, 1969, balanced a conventional approach focused on getting the narrow right to a oral hearing before termination of benefits and a more far-reaching approach to bury the right-privileges doctrine and advance the “right to live” theory.
Since the city had conceded due process applied to welfare benefit terminations, the lawyers discussed not arguing the issue. Ultimately, the brief referenced Yale Professor Charles Reich’s writings. A central thesis of Professor Reich's work was that welfare benefits are not government gratuities that can be taken away at will, but are a form of the ''property'' that the Constitution shields against arbitrary government action.
The briefs are in. We move to Washington DC, October 13, 1969, for oral arguments.

27. Wheeler-Goldberg Arguments
The briefs are in. We move to Washington DC, October 13, 1969, for oral arguments.
Click Oyez clip.

28. Wheeler-Goldberg Arguments
Arguing Wheeler and Goldberg before the Court
Wheeler v. Montgomery was argued first on October 13, 1969, with Peter Sitkin representing Wheeler followed by Elizabeth Palmer representing California. Justice Hugo Black’s repeated questioning of Sitkin about “government gratuities” perhaps signaled his views on the case.
Goldberg v. Kelly’s arguments followed, with NY City’s attorney John Loflin going first followed by Lee Albert on behalf of Kelly. Again, Justice Thurgood Marshall perhaps tipped his hand by rhetorically questioning “so that is what you call due process?”
Here is just a short audio clip from the Peter Sitkin’s argument to give you a taste of this historic time.

29. Deliberating and Drafting
Closing Act – Deliberating and Drafting
8 justices heard the Wheeler and Goldberg cases. Chief Justice Warren Burger joined the court in June 1969, and Justice Abe Fortas resigned in May 1969 and no replacement had been confirmed. The other members by seniority were Hugo Black, William Douglas, John Harlan, William Brennan, Thurgood Marshall, Byron White, and Potter Stewart.
At the private case conference held after the oral argument, 5 justices—Douglas, Harlan, Brennan, Marshall, and White initially voted to affirm the district court’s decision in Goldberg that the NYC procedures violated due process and to reverse the decision in Wheeler that the California procedures did not. 3 justices—Burger, Black, and Stewart—voted in the opposite manner.
As the most senior majority judge, Douglas was allowed to assign who would write the opinion. He chose Justice Brennan because he sensed compromise might be needed to hold Harlan and White. I have a short clip of Justice Sandra Day O’Connor describing Brennan’s skills.
Pop quiz-who’s the justice behind the mask?

30. Deliberating and Drafting
Harry Blackmun who joined the court 3 months after Goldberg was decided. I bring this up because, my research has disclosed a lot of inaccuracies in books and articles about the outcome of the case. Some times it is referred to as a 6-3 decision, other times 5-4 decision, and a book referred to it as a 7-2 decision.

31. Delivering the Majority Opinion
Justice William Brennan announced the opinion of the court on March 23, 1970.

32. Delivering the Majority Opinion
Douglas’ choice of Brennan to author the opinion was fortunate.
Brennan’s willingness to make changes caused Harlan and White to join the opinion.
Douglas’ choice of Brennan to author the opinion was fortunate as both Harlan and White raised several objections to earlier drafts. As suggested in the Justice O’Connor clip, Brennan’s willingness to make changes—eliminating objectionable language, incorporating suggestions, and responding to the dissent’s points—caused Harlan and White to join the opinion.

33. Brennan’s Signature Opening
“From its founding, the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”
Brennan’s Signature Opening
“From its founding, the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”
Brennan’s Signature Opening

34. Does Due Process Apply?
Does due process apply to the termination of welfare benefits?
Brennan cites Shapiro v. Thompson: “The constitutional challenge cannot be answered by an argument that public assistance benefits are a privilege and not a right."
And he reasons that: “Such benefits are a matter of statutory entitlement for persons qualified to receive them.8”
Notably, in footnote 8 Brennan refers to Prof. Reich’s writings to support his opinion that a person who has qualified for a benefit has a property interest in the benefit that cannot be taken without due process.
Does Due Process Apply?
Brennan uses the normal due process approach of asking two questions?
Does due process apply to the termination of welfare benefits? Brennan could have glossed over this question since the city had conceded the point. Instead, he meets Justice Black’s dissent head on by quoting Shapiro v. Thompson: “The constitutional challenge cannot be answered by an argument that public assistance benefits are a privilege and not a right." And he reasons that: “Such benefits are a matter of statutory entitlement for persons qualified to receive them.8” In what has been called the “famous footnote 8” of the decision, Brennan refers to Prof. Reich’s writings to support his opinion that a person who has met the conditions for eligibility for a benefit has a property interest in that benefit.

35. What Process is Due? If due process applies, what process is due?
To answer this question, Brennan uses a balancing test weighing the recipient’s interests vs. the government’s interests in conserving fiscal and administrative resources. He considers the stakes to be too high for the welfare recipient who is “deprived of the very means by which to live while he waits.”
In addition, he concludes New York’s written review process and California informal conference process do not provide sufficient protection against mistaken terminations, especially since welfare cases often involved disputed factual issue where credibility is important.
What Process is Due?
If due process applies, what process is due? To answer this question, Brennan weighed the recipient’s interests vs. the government’s interests in conserving fiscal and administrative resources. He considers the stakes to be too high for the welfare recipient who is “deprived of the very means by which to live while he waits.”
In addition, he concluded NY’s written review and California’s informal conference process didn’t provide enough protection against mistaken terminations, especially since welfare cases often involved disputed factual issue where credibility is important.

36. Goldberg 10
Brennan very carefully says the "pre-termination hearing need not take the form of a judicial or quasi-judicial trial" and only procedures required by rudimentary due process are needed, which include:
Goldberg 10
Brennan very carefully says the "pre-termination hearing need not take the form of a judicial or quasi-judicial trial" and states only procedures required by rudimentary due process are needed, which include:

37. Goldberg Top 10 Timely and adequate notice
Oral presentation of evidence
Oral presentation of arguments
Disclosure of opposing evidence
Right to an impartial decision maker
Confrontation of any adverse witnesses
Cross-examination of adverse witnesses
Right to attorney or representative
Decision based on record of the hearing
Statement of reasons and evidence supporting the decision
Goldberg 10
Timely and adequate notice
Oral presentation of evidence
Oral presentation of arguments
Disclosure of opposing evidence
Right to an impartial decision maker
Confrontation of any adverse witnesses
Cross-examination of adverse witnesses
Right to retain attorney or representative
Decision based on the record of the hearing
Statement of reasons and evidence supporting the decision

38. Goldberg 10
After reviewing the list of 10 requirements, it seems more accurate to say the hearing should resemble a judicial trial because it sure looks like one. What didn’t the Court require?
No need for complete record
No need for complete opinion with formal findings of fact and conclusions of law.
No counsel provided by the government.
No particular order of proof.
No mention of evidence under oath.
No mention of subpoenas for witnesses
If you compare Goldberg hearing requirements to the requirements for formal adjudication under § 556 of the federal APA or § of the Model State APA, you’ll find very little difference.
Goldberg 10
This language about the hearing not being a judicial trial was a compromise with Justice Harlan to keep his vote. But after reviewing the list of 10 requirements, you should be scratching your head because it seems the court should have said the hearing should resemble a judicial trial because it sure looks like one. What didn’t the Court require?
No need for complete record.
No need for complete opinion with formal findings of fact and conclusions of law.
No counsel provided by the government.
No particular order of proof.
No mention of evidence under oath.
No mention of subpoenas for witnesses
If you compare Goldberg hearing requirements to the requirements for formal adjudication under § 556 of the federal APA or § of the Model State Administrative Procedures Act, you’ll find very little difference.

39. Delivering the Dissenting Opinion
“The Court today holds that it would violate Due Process to stop paying those people weekly or monthly allowances unless the government first affords them a full 'evidentiary hearing' even though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law.… I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them.”
Delivering the Dissenting Opinion
Hugo Black is reported to have lost sleep as a result of his displeasure and aggravation with the Goldberg majority decision, which was at odds with his view of the Constitution.
Justice Hugo Black wrote in dissent that there were nine million welfare recipients in the United States receiving “allowances or gratuities” from the government, and at least some of them were not truly eligible for assistance. “[T]he Court today holds that it would violate the Due Process Clause of the Fourteenth Amendment to stop paying those people weekly or monthly allowances unless the government first affords them a full 'evidentiary hearing' even though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law.… I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them.”
Interesting coming from the Justice who authored Gideon v. Wainwright and stated in Griffin v. Illinois, 373 U.S. 12,(1964), "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."
Justice Hugo Black

40. Goldberg v. Kelly’s Influence
Next we want to turn to the influence of Goldberg v. Kelly. It is a modest decision in length, only 25 pages, with the majority decision coming in at 17 pages and the dissent 8 pages. Compare that to the recent gun control decision, McDonald v. Chicago, that weighs in at 214 pages. But though my research I have determined that despite its brevity, the decision speaks volumes even today.
Justice Stephen Breyer said this about Brennan’s decision in Goldberg: “he did something rare in the law—he created a symbol, a symbol of the need for equality, dignity, and fairness in the individual’s relationship to the administrative state.” Reason and Passion: Justice Brennan’s Enduring Influence 256 (1997)
[Justice Brennan] did something rare in the law—he created a symbol, a symbol of the need for equality, dignity, and fairness in the individual’s relationship to the administrative state.
--Justice Stephen Breyer

41. Goldberg’s influence
Linda Greenhouse, 1998 Pulitzer Prize journalist for New York Times wrote after Justice Brennan’s death in 1997:
“But it was his 1970 opinion for the Court in Goldberg v. Kelly …that Justice Brennan appeared to cherish above all others. … The opinion proved to be a watershed of constitutional interpretation, a critical building block in what came to be known as the Due Process revolution.
Goldberg’s influence
Goldberg is widely acknowledged as a landmark case touching millions of lives.
Linda Greenhouse, a NY Times journalist won the 1998 Pulitzer Prize for her coverage of the Supreme Court, which included an article written after Justice Brennan’s death in She wrote: “But it was his 1970 opinion for the Court in Goldberg v. Kelly—a case little known to the general public—that Justice Brennan appeared to cherish above all others. … The opinion proved to be a watershed of constitutional interpretation, a critical building block in what came to be known as the due process revolution. A series of decisions that followed erected a constitutional shield for the ordinary citizen against the arbitrary or standardless use of governmental power in many contexts.
Amazing when you consider that Brennan authored about 1300 opinions, including Baker v. Carr and New York Times v. Sullivan.

42. Goldberg’s Influence
Judge Henry J. Friendly in his 1975 article, “Some Kind of Hearing” wrote:
Since [Goldberg] we have witnessed a due process explosion in which the Court has carried the hearing requirement from one new area of government action to another.… We have witnessed a greater expansion of procedural due process in the last five years than in the entire period since ratification of the Constitution.”
Goldberg’s Influence
Judge Henry J. Friendly in his famous 1975 article, “Some Kind of Hearing” wrote: Since [Goldberg] we have witnessed a due process explosion in which the Court has carried the hearing requirement from one new area of government action to another.… We have witnessed a greater expansion of procedural due process in the last five years than in the entire period since ratification of the Constitution.”

43. Goldberg’s Influence
In December 2009, Hein Online listed the 50 Most-Cited Supreme Court Cases in law reviews and journals.
Goldberg v. Kelly was number 28 (5,639 citations).
Not surprisingly, Chevron U.S.A. Inc. v. NRDC was number 20 (6,300 citations), but surprisingly Mathews v. Eldridge was number 42 (4,823 citations), and even more surprisingly Shapiro v. Thompson was number 19 (6,343 citation) beating Chevron.
Goldberg’s Influence
In December 2009, Hein Online listed the 50 Most-Cited Supreme Court Cases in law reviews and journals.
Goldberg v. Kelly was number 28 (5,639 citations).
Not surprisingly, Chevron U.S.A. Inc. v. NRDC was number 20 (6,300 citations), but surprisingly Mathews v. Eldridge was number 42 (4,823 citations), and even more surprisingly Shapiro v. Thompson was number 19 (6,343 citation) beating Chevron.

44. Goldberg is “Good Law”
Unquestionably Mathews v. Eldridge (1976) and subsequent cases signaled a retreat from Goldberg principles.
But Goldberg v. Kelly ‘s holding in the welfare benefit context has not been overturned.
Cesar A. Perales, Social Services Commissioner of New York State said in 1990, “the constitutional concept of due process is made real more than 75,000 times each year…. Perhaps the most dramatic proof of the institutional saturation of Goldberg precepts is that its protections, once considered radical, are now taken for granted.”
Goldberg’s Influence
There is no question Mathews v. Eldridge (1976) signaled a retreat from Goldberg principles and Prof. Gedid will go into more detail on this.
Yet, I would argue that Goldberg is in many ways “Good Law”
Goldberg v. Kelly’s holding in the context of welfare benefits has never been overturned. In the same 1990 New York Times article on Goldberg mentioned earlier, Cesar A. Perales, Social Services Commissioner of New York State said, ''the constitutional concept of due process is made real more than 75,000 times each year.'' He added: ''Perhaps the most dramatic proof of the institutional saturation of Goldberg precepts is that its protections, once considered radical, are now taken for granted.”

45. Wheeler’s Influence
"Almost simultaneously, it seemed, with my appointment as Director by Governor Reagan, there began a series of court actions both state and national to challenge public welfare rules and regulations....
Here in California we have been challenged on dozens of issues, all of them coming back to the fact that for the first time, the poor had real and effective advocacy in our courts. This, again, is the significant point transcending all other considerations and consequences. An era of advocacy has begun out of which, I am sure, public assistance is never going to be the same.
Not only is this happening through the courts, but also in the meetings and hearings of welfare boards, advisory commissions and administrators at every governmental level. The poor have come out of their apathy, and our accountability for what we do and why we do it is theirs to know - as it always has been under the law but never before so vocally sought.“
John Montgomery, California Director of Welfare, Calif. Welfare Director's Newsletter, Special Issue (vol. V, No. 6) p.3-4 (Nov.-Dec. 1969)
John Montgomery, the California Director of Welfare was the Defendant in Wheeler v Montgomery, the companion case to Goldberg v Kelly. In his final press statement in late 1969 he commented on a series of a major welfare reform cases brought by poverty lawyers in California. Here is the excerpt that I found quite powerful:
"Almost simultaneously, it seemed, with my appointment as Director by Governor Reagan, there began a series of court actions both state and national to challenge public welfare rules and regulations....
Here in California we have been challenged on dozens of issues, all of them coming back to the fact that for the first time, the poor had real and effective advocacy in our courts. This, again, is the significant point transcending all other considerations and consequences. An era of advocacy has begun out of which, I am sure, public assistance is never going to be the same.
Not only is this happening through the courts, but also in the meetings and hearings of welfare boards, advisory commissions and administrators at every governmental level. The poor have come out of their apathy, and our accountability for what we do and why we do it is theirs to know - as it always has been under the law but never before so vocally sought."
Calif. Welfare Director's Newsletter, Special Issue (vol. V, No. 6) p.3-4 (Nov.-Dec. 1969).

46. Goldberg is “Good Law”
As “legacy operating systems” still run on computers out there, Goldberg‘s legacy also lives on outside the welfare context.
Agency practices adopted in response to Goldberg have never been changed to reflect current due process jurisprudence. Two examples:
Snyder et al. v. Shearer 1982 Stipulation between Legal Services of Iowa and Iowa Department of Job Service requires Goldberg rights in unemployment initial fact-finding interviews.
Driver’s License Point hearings in Colorado Hearing notice is sent out when driver exceeds point limit without any request by the driver for a hearing.
Goldberg’s Influence
I ‘d also argue that just like we have some “legacy operating systems” still running on computers out there (I still have a functioning laptop running Windows 98 SE!), Goldberg’s legacy lives on in agencies outside the welfare context. This occurred when agency practices adopted after Goldberg were never changed to reflect the changes in due process jurisprudence. Two examples come to mind for me:
In 1980, Legal Services of Iowa filed a class action lawsuit in federal court challenging the process used by the Iowa Department of Job Service in making initial determination of eligibility in unemployment cases. The department entered into a stipulation still in force today giving unemployment claimants the right—to adequate notice, to orally present evidence and argument, disclosure of evidence, to confront and cross-examine witnesses, to retain an attorney, and to a clear decision. Snyder et al v. Shearer, Civ C (Stipulation signed August 12, 1982). Other states use a much more flexible informal process to make initial determinations with the right to a full hearing on appeal.
More recently, I’ve done some consulting with the Colorado agency that handles driver’s licensing cases. I was surprised to learn that in Colorado when a driver exceeds the point level for suspension of their license, instead of sending notice of suspension with the right to request a hearing, they are sent a hearing notice for them to appear for a points hearing. My guess is the process was adopted after Bell v. Burson (1971) (requiring a pre-suspension Goldberg hearing for a driver charged with failing to carry liability insurance), and without consideration of the Dixon v. Love (1977) that held that no pre-suspension hearing was required in point’s cases using the reasoning of Mathews v. Eldridge.

47. Goldberg and Administrative Law Judiciary
Finally, the due process requirement of an evidentiary hearing with the ten Goldberg rights played a part in the development of a professional, impartial, and independent administrative judiciary.
Goldberg and Administrative Law Judiciary
Finally, I am convinced that the due process requirement of an evidentiary hearing with the ten Goldberg rights is partially responsible for the development of an impartial, professional administrative judiciary.
Before Goldberg, eligibility review decisions were made by social workers or other officials that might have been directly involved in terminating benefits. Goldberg requires an impartial decision maker. Since impartially operates on a continuum, the trend has been to insulate the decision maker from potential bias in reviewing agency decisions. The trend toward the establishment of central panel agencies is an example of this.
In addition, because Goldberg evidentiary hearings follow legal procedures resembling trials, the need for trained professionals—whether legal-trained or trained in conducting hearings—has become essential to properly carry out the adjudicatory function.

48. Goldberg and Administrative Law Judiciary
Four years after Goldberg v. Kelly, a group of hearing officers established the National Association of Administrative Hearing Officers, now called the National Association of Administrative Law Judiciary.
The preamble to the constitution drafted in 1974 states:
“We who are members of the profession charged with the duties and responsibilities of exercising judicial functions, do hereby join together and associate ourselves for the purpose of maintaining the highest professional standards and advocating improvements in the field of administrative law.”
Goldberg and Administrative Law Judiciary
I am convinced that was not an accident that 4 years after Goldberg v. Kelly was decided, a group of hearing officers established an organization, then called the National Association of Administrative Hearing Officers and now called the National Association of Administrative Law Judiciary.
The preamble to the NAALJ constitution drafted in 1974 states:
“We who are members of the profession charged with the duties and responsibilities of exercising judicial functions, do hereby join together and associate ourselves for the purpose of maintaining the highest professional standards and advocating improvements in the field of administrative law.

49. Closing Words
"Due process asks whether government has treated someone fairly, whether individual dignity has been acknowledged. If due process values are to be preserved in the bureaucratic state of the late 20th century, it may be essential that officials possess passion—the passion that puts them in touch with the dreams and disappointments of those with whom they deal, the passion that understands the pulse of life beneath the official version of events.”
From Justice Brennan's 1987 speech on "Reason, Passion and the Progress of the Law" 10 Cardozo Law Review 3 (1988).
Closing Words
"Due process asks whether government has treated someone fairly, whether individual dignity has been acknowledged. If due process values are to be preserved in the bureaucratic state of the late 20th century, it may be essential that officials possess passion—the passion that puts them in touch with the dreams and disappointments of those with whom they deal, the passion that understands the pulse of life beneath the official version of events.
From Justice Brennan's 1987 speech on "Reason, Passion and the Progress of the Law" 10 Cardozo Law Review 3 (1988).

50. Credits
Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement
Credits
Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960 – 1973 (Yale University Press (1993).
An incredible website devoted to the Supreme Court of the United States and its work.