Podcast

Before Bert Neuborne became one of America’s most accomplished civil liberties lawyers, he was supposed to become a doctor.

His family saw medicine as a path to economic security and social standing. Neuborne entered Cornell at just 16 years old as a pre-med student, the first person in his family to attend college. Then organic chemistry and comparative vertebrate anatomy changed the trajectory of his life.

Law eventually took him somewhere he never expected.

In Part 1 of Neal Goldstein’s conversation with Bert Neuborne, Neuborne looks back at the early decisions, accidents, risks, and cases that placed him inside some of the most consequential constitutional battles of his generation.

One of those defining moments came almost immediately after he left Wall Street for the New York Civil Liberties Union. On his second day, a man then known as Cassius Clay walked through the door looking for legal help in his fight against the draft.

That man was Muhammad Ali.

For Neuborne, the encounter revealed what practicing law could actually mean. After three years on Wall Street, he had found work that gave him something he had been missing.

His career unfolded during an extraordinary period for American civil liberties. Neuborne worked alongside lawyers including Aryeh Neier, Ira Glasser, and Ruth Bader Ginsburg. He knew civil rights worker Michael Schwerner from Cornell before Schwerner was murdered in Mississippi in 1964.

Neuborne describes the 1960s as a period when lawyers working on constitutional rights could sometimes do more than fight principled losing battles. They could win.

He recalls lawyers at the Civil Liberties Union sitting together over lunch, comparing cases and recognizing a larger constitutional pattern. From those conversations emerged what they called the “enclave theory,” an effort to challenge spaces such as schools, the military, and mental institutions that had been treated as largely beyond constitutional protection.

Then came one of the most remarkable cases of Neuborne’s career.

In 1973, military lawyers contacted him from U-Tapao Air Force Base in Thailand. They represented B-52 pilots and bombardiers who were refusing to continue bombing Cambodia without understanding the justification for what they were being ordered to do.

Refusing those orders carried enormous consequences.

Neuborne took the case.

After a federal district judge issued an injunction and the Second Circuit stayed it, Neuborne tried unsuccessfully to persuade Justice Thurgood Marshall to reinstate it. So he flew west, rented a car, and traveled to find Justice William O. Douglas at his summer retreat.

Douglas heard the matter and issued an injunction stopping the bombing before the full Supreme Court ultimately overruled him.

Neuborne also recounts discovering that he had landed on Richard Nixon’s enemies list and was subjected to an IRS audit while earning $9,000 a year at the ACLU. The audit produced an unexpected result: a $50 refund.

The conversation then turns from Neuborne’s cases to his constitutional philosophy.

In discussing his book Madison’s Music, Neuborne explains why he believes lawyers and judges make a mistake when they isolate individual words and clauses of the Constitution from the document surrounding them.

His argument is that the First Amendment should be understood as a coherent whole.

He traces a progression from freedom of conscience, to speech, to the press, to assembly, and finally to petition. In Neuborne’s reading, those protections tell the story of how an idea moves from an individual mind into democratic action.

He applies the same approach to the Bill of Rights as a whole, arguing that its structure contains meaning that can disappear when constitutional provisions are interpreted in isolation.

This is a conversation about what happens when a lawyer finds the work that fits him, what constitutional litigation looked like during a transformational period in American history, and what decades inside that system taught Neuborne about both its possibilities and its vulnerabilities.

It is also the story of a lawyer who repeatedly found himself facing decisions where the safer path and the meaningful path were not the same.

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