Hugo Black's Vision of the Lawyer, the First Amendment, and the Duty of the Judiciary: The Bar Applicant Cases in a National Security State

By Kastenberg, Joshua E. | The William and Mary Bill of Rights Journal, March 2012 | Go to article overview

Hugo Black's Vision of the Lawyer, the First Amendment, and the Duty of the Judiciary: The Bar Applicant Cases in a National Security State


Kastenberg, Joshua E., The William and Mary Bill of Rights Journal


INTRODUCTION ................................................. 691

I. THE COURT AND ATTORNEY GOVERNANCE ........................ 698

II. THE COURT, THE COLD WAR, AND CHALLENGES TO THE HISTORIC MODEL OF ATTORNEY GOVERNANCE ................................... 712

A. Anticommunist Legislation ................................. 715

B. Federal Law on Economic Regulation and the Criminalization of Speech ............................................... 718

C. Dennis v. United States .................................... 721

D. The Court Under Attack ................................... 727

E. United States v. Sacher .................................... 728

F. In re Isserman ........................................... 738

G. Other Prosecutions: Black's Fears of a Double Standard ......... 742

1. Rosenberg Trial ...................................... 743

2. Cammer v. United States ............................... 744

H. State Loyalty Programs Affecting Public Employment ............ 745

III. THREE PETITIONERS, FOUR DECISIONS: THE COURT DETERMINES ITS ROLE IN ATTORNEY LICENSING AND BLACK DEFINES THE IMPORTANCE OF ATTORNEYS IN PRESERVING DEMOCRACY ......................... 748

A. Konigsberg I ............................................ 752

B. Schware v. Board of Bar Examiners .......................... 759

C. Interregnum: In re Sawyer ................................. 766

D. Konigsberg II ............................................ 770

E. In re Anastaplo .......................................... 774

CONCLUSION .................................................. 784

INTRODUCTION

Between 1957 and 1961, the Supreme Court issued four attorney licensure decisions involving three separate petitioners and three state bar admissions processes. The decisions, Königsberg v. State Bar of California Königsberg I),1 Schware v. Board of Bar Examiners2 Königsberg ?. State Bar of California Königsberg II),3 and role of attorneys in a democratic society. Decided at the height of the Cold War - when In re Anastaplo,4 evidenced how the Justices on the Warren Court viewed the fears of Communist espionage, subversion, and the potential for atomic warfare were keenly felt in the three branches of government and society as a whole - the Justices sought to influence the ability of the legal profession to determine who was eligible for bar admission, and, therefore, what might be the role of the zealous advocate. In particular, state bar associations had begun to restrict admission of people who had been affiliated with the Communist Party of the United States (CPUSA),5 but the CPUSA was not the only political entity targeted for bar exclusion.6

Within the Court, two opposing camps led by Justice Hugo Black and Justice John Harlan sparred over the ability of state judicial branches to determine bar admission based on political affiliation and loyalty oaths.7 One recent study characterized In re Anastaplo as "exemplif [ying] the conflict between those who, like Justice Black, placed absolute faith in the First Amendment, and others who, like Justice John Harlan, felt that its freedoms had to be balanced against societal needs."8 The same could be said for all four decisions. Harlan's belief in the necessity of balance was not wholly original. He was guided and coached by Justice Felix Frankfurter,9 and his approach was a continuation of Justice Robert Jackson's jurisprudence.10 In the firsttwo cases decided in 1 957, Black appeared to prevail.1 1 But Harlan's ideology formed the majority, and, therefore, the law in the second two cases, which were also decided together.12 Although Black was an absolutist in First Amendment jurisprudence, he believed the four attorneys' admission decisions represented more than the Amendment.13 He argued that the independent bar was the guardian of the Bill of Rights, and judicially imposed restraints on bar admission based on political belief was a tenuous path to the erosion of those rights. …

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