A Passion For Civil Liberties
For more than a half-century, Norman Dorsen ’50 has fought for fundamental freedoms and against discriminatory legislation
By Valerie Seiling Jacobs
When Norman Dorsen ’50 arrived at Columbia College in fall 1946, he was not your average freshman. First, there was his age. At 16, he was younger than most of his classmates. And then there was his physical appearance. Though at 5-foot-10½ he was tall enough to snag a spot on the JV basketball team, he was, in his own words, “not physically prepossessing,” especially when compared to the many WWII veterans who were flooding the University thanks to the G.I. Bill. Adding to Dorsen’s sense of isolation was the fact that he still lived at home. While other students socialized on campus, he generally trundled home on the subway to his parents’ apartment on West End Avenue and 92nd Street — where he worried obsessively about his grades. Indeed, listening to Dorsen’s description of his college-age self (“I was pretty pathetic,” he says, laughing), one pictures a scrawny, naïve kid adrift in a sea of strapping, savvy undergraduates.
But that image, like so many of Dorsen’s stories about himself, is too modest. In fact, Dorsen was the high scorer on the JV team during his sophomore year and later was promoted to varsity. And buried in those anecdotes are the seeds of his later success, including the intellectual acumen and work ethic that propelled him to Phi Beta Kappa, the Harvard Law Review, a Fulbright Scholarship and an endowed chair at NYU Law. Dorsen became one of the most influential civil liberties lawyers in the country, leading the American Civil Liberties Union’s (ACLU) efforts for several decades and spearheading scores of legal challenges to discriminatory legislation and other injustices. Name almost any civil liberties controversy since the 1960s — from a woman’s right to an abortion, to a minor’s right to a due process hearing, to the government’s right to conduct warrantless electronic surveillance — and Dorsen’s name surfaces. He has famously defended even the most unpopular parties in the cause of preserving free speech and other fundamental freedoms, including the Nazis’ right to march through Skokie, Ill., a town that in 1977 had a large population of Holocaust survivors. Dorsen has received so many accolades that NYU Law has set up a special seminar room to hold the photographs, plaques and other memorabilia from his long and distinguished career.
Dorsen cannot recall the exact moment his passion for civil liberties began, but there were hints of his liberal leanings during his undergraduate years. He recalls one professor who labeled his opinions “a little spicy” — a characterization that Dorsen does not dispute. “I was no radical,” he says, laughing again, “but I definitely had views.”
It may have been that outspokenness that brought him to the attention of the Office of the Secretary of the Army in 1954 when, only a year out of Harvard Law, he was tapped to help represent the Army during the McCarthy hearings. With only four people on the Army’s legal team, Dorsen played a critical, albeit behind-the-scenes, role: He was responsible for preparing the legal memoranda and other documents needed for the weeks of testimony. While Americans watched on television, a relatively new medium at that time, Dorsen got an up-close look at Sen. Joseph R. McCarthy and his counsel, Roy Cohn ’46, ’47L, a man whom Dorsen describes as being “even less sensitive to individual rights than his boss.”
McCarthy’s behavior — what Dorsen once described as his rude interruptions, his crude jokes at the expense of others and, most important, his frequent aspersions on the loyalty of his perceived enemies — left a lasting impression. And the experience (“an extraordinary morality play,” he says) cemented his commitment to protecting civil liberties and changed his life. “There is no doubt that being confronted by the McCarthy crowd, and in particular by Roy Cohn, sensitized me to issues of fairness in hearings and other proceedings and the drastic harm that the government can do to free expression,” Dorsen says. “This experience led me to become a civil libertarian.”
So Dorsen was “overjoyed” when, in 1961, after two federal clerkships, including one with Supreme Court Justice John Marshall Harlan, and a brief stint practicing law in New York City, he was offered a faculty position and the directorship of the Arthur Garfield Hays Civil Liberties Program at NYU Law. It was there he met his wife, Harriette, a woman who shared his liberal views (she became one of the country’s most influential publishing lawyers) and with whom he raised three daughters.
Running the civil liberties program at NYU proved a daunting task. The program, which had been established three years earlier in memory of Hays, also a Columbia alumnus (Class of 1902, 1905L) and a former general counsel of the ACLU, was floundering. The two previous directors had resigned. “Three strikes and you’re out,” Dorsen recalls the dean saying. It was up to Dorsen to stabilize the situation.
He did much more than that. He turned the program into what Supreme Court Justice William J. Brennan Jr. later called “the most effective and important center in the country for the training of law students for public service on behalf of individual rights.” Under Dorsen’s direction, the program has provided practical, hands-on instruction for hundreds of fellows, many of whom continue to work in the public interest as civil liberties lawyers in government and legal services organizations and as law professors.
One of those former fellows is Judith Resnik, now the Arthur Liman Professor at Yale Law. According to Resnik, Dorsen’s egalitarian attitude toward students and his willingness to engage with them critically set the program apart. She tells how Dorsen listened to students “who may not agree with him” and always provided room for genuine debate. And he matched that open-mindedness with an open-door policy, instructing his assistant never to ask who visitors were or what they wanted. He made it a practice to answer his own phone whenever he could. But it was his vision, Resnik explains, that made the program so successful. “He was ahead of the curve,” she says. “Not just once, but over and over again.”
In 1967, for example, Dorsen challenged the constitutionality of Arizona’s juvenile court procedures after a 15-year-old boy was sentenced to six years in prison for making an obscene phone call, even though he had not been provided with an opportunity to confront witnesses, given written notice of the charges or provided with an attorney. It was, Dorsen says, the “worst of both worlds,” a system where children were “subjected to the kind of incarceration and criminal penalties that adults were, but without the protections of the Bill of Rights that adults had if accused of the same thing.” The case, which Dorsen successfully argued before the Supreme Court, extended constitutional guarantees to juveniles, a group that previously had been without such protections.
In another groundbreaking case a year later, Dorsen convinced the Supreme Court that a Louisiana statute that denied “illegitimate” children the right to recover damages for the wrongful death of their mother violated the Equal Protection Clause of the Fourteenth Amendment. The case was important not only because it granted constitutional protections to children born out of wedlock but also because it suggested that discrimination based on criteria other than race could trigger a high level of scrutiny by the courts. The case helped pave the way for other discrimination cases based on non-race classifications, including gender.
It was that kind of vision that prompted the ACLU to offer Dorsen a leadership position within the organization — first as general counsel (1969–76) and then as president (1976–91). With the ACLU’s backing, Dorsen continued to fight for the constitutional rights of children, prisoners, war protesters, homosexuals, women and the indigent. In 1969, he brought one of the earliest petitions for Supreme Court review of alleged discrimination against a gay man. And in 1971, he argued the first abortion rights case before the Supreme Court, a case that prefigured Roe v. Wade, where he also was counsel of record. Dorsen also wrote amicus curiae briefs in a number of other landmark cases, including Gideon v. Wainwright, U.S. v. Nixon and the Pentagon Papers case. Indeed, during his tenure, the ACLU was involved in some of the most famous civil liberties cases in U.S. history.
Dorsen also played a critical role within the ACLU itself, especially after the fallout from the infamous Skokie case. In spring 1977, when the ACLU announced that it would defend the Nazis’ right to march through that Chicago suburb, 4,000 members of the ACLU wrote letters in protest. Within months, the organization lost more than 30,000 supporters. By the end of the year, the number had grown to 41,000 (more than 25 percent of the ACLU’s total membership) and the organization was on the verge of bankruptcy. Anthony Romero, the ACLU’s current executive director, puts it bluntly: “We were faced with extinction.”
Once again, Dorsen rose to the occasion. First, he refocused the debate on the First Amendment, reminding critics that even the most unpopular speakers are entitled to free speech. He was unflappable, recalls Romero, an important skill given the escalating tensions. He soothed frayed relationships with former supporters and attracted new members without compromising the ACLU’s core goals. “His ability to remain cool and focused was absolutely essential for the organization at the time,” Romero says.
Second, Dorsen set out to solve the ACLU’s internal problems. His knowledge of the law, as well as what Romero calls the nuts and bolts of the organization, afforded him a unique perspective and enabled him to help shape policies and facilitate board decisions that would ultimately right the organization. “He was the quintessential senior statesman, quietly exercising leadership behind the scenes,” Romero says. By the time Ronald Reagan entered the White House in 1981, the ACLU’s membership was growing again, its finances and management were stable and it was well positioned to defend against the next round of civil rights abuses.
Dorsen, for his part, is quick to deflect praise. “It’s such a big story — no one person is responsible,” he says, speaking of the ACLU’s success. While that technically may be true, other evidence points to the importance of Dorsen’s diplomacy. As J. Anthony Lukas, the late Pulitzer Prize-winning journalist and author, observed in The New York Times as early as 1978, Dorsen had a “magic touch for healing organizational wounds.” And Dorsen’s team-building skills have been a recurring theme in the myriad tributes to him: he received a Medal of Liberty from the French Minister of Justice in 1983, the Eleanor Roosevelt Human Rights Award from President Clinton in 2000 and the first lifetime achievement award from the Association of American Law Schools in 2007, to name but a few.
Dorsen recognizes the value of his ability to bring people together. “If I do something myself,” he says, “that’s one thing, but unleashing the capacities and energies of people toward mutual goals is a way of multiplying the impact and effectiveness one can have.” In fact, his ability to forge alliances helped him found a global consortium of legal scholars, a task that took years of effort and culminated in 2002 with the publication of IgCON, a new international journal of constitutional law. He employed those same talents when he joined forces with other law professors to organize the International Association of Law Schools and became the founding president of the Society of American Law Teachers.
But the real secret to Dorsen’s success may be how personable he is, even with those who disagree with him. His friendships cross party lines and extend from Manhattan, where he has an apartment, to the quiet corners of Cornwall, Conn., where he spends weekends (Harriette died in 2011). On visits to Washington, D.C., he’s been known to dine with the legal elite — regardless of their political leanings. “He’s a likeable fellow who likes to be liked, even if it’s by the likes of Antonin Scalia,” Romero says, hastening to add: “But just to be clear, he has a very discerning mind.”
Of his ability to remain friendly — even with those who oppose his liberal views — Dorsen simply shrugs. “No mind has ever been changed at a dinner party,” he says.
Perhaps that explains why he continues to pursue justice in other venues. Most days you can find Dorsen in his office on Washington Square, working on another speech or law review article. He recently finished editing a volume of the last 11 lectures from NYU’s James Madison lecture series, which are delivered only by Supreme Court justices and U.S. Court of Appeals judges. And he remains co-director of the law school’s Arthur Garfield Hays Civil Liberties Program, where he takes an active role in training civil rights lawyers.
Dorsen still answers his own phone and types his own letters, many of them on the manual typewriter that sits on a stand beside his desk; the bulky gray Royal dates to the 1960s, a tangible reminder of just how long Dorsen has been at this. He also still teaches, though his course load has been reduced to make room for other responsibilities (he is counselor to the university’s president and recently agreed to chair a major study on multi-school programs). And he continues to be involved in the ACLU, both as a member of its National Advisory Council and an informal adviser to its current officers. In fact, in recognition of his more than 50 years of outstanding service, the ACLU recently announced the establishment of the “Norman Dorsen Presidential Prize,” one of only two prizes awarded by the organization. It is a fitting tribute to a man whose life personifies the ACLU’s motto: “Eternal vigilance is the price of liberty.”
Valerie Seiling Jacobs is a freelance writer, an M.F.A. candidate in the School of the Arts and a teaching fellow in the College’s Undergraduate Writing Program. Before turning to writing, she practiced corporate law. Thomas F. Ferguson ’74 contributed to this article.