William & Mary Bill of Rights Journal Volume 20 (2011-2012) Issue 3 Article 3 March 2012 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 Joshua E. Kastenberg Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Joshua E. Kastenberg, 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, 20 Wm. & Mary Bill Rts. J. 691 (2012), https://scholarship.law.wm.edu/wmborj/vol20/iss3/3 Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj 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 Joshua E. Kastenberg* 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 deci- sions involving three separate petitioners and three state bar admissions processes. The decisions, Konigsberg v. State Bar of California (Konigsberg I),1 Schware v. * Joshua E. Kastenberg, Lieutenant Colonel, USAF, is a military judge assigned to Joint Base Andrews. He thanks his wife, Elizabeth A. Kastenberg, and dedicates this Article to her. 1 353 U.S. 252 (1957). Konigsberg I was argued on January 14, 1957 and decided on May 6, 1957. Id. 691 692 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 20:691 Board of Bar Examiners,2 Konigsberg v. State Bar of California (Konigsberg 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 first two cases de- cided in 1957, Black appeared to prevail.11 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 2 353 U.S. 232 (1957). Schware was argued on January 14 and 15, 1957 and decided on May 6, 1957, the same date as Konigsberg I. Id. 3 366 U.S. 36 (1961). Konigsberg II was argued on December 14, 1960 and decided on April 24, 1961. Id. 4 366 U.S. 82 (1961). In re Anastaplo was argued on December 14, 1960 and decided on April 24, 1961, the same dates as Konigsberg II. Id. 5 See In re Anastaplo, 366 U.S. at 83–84; Konigsberg I, 353 U.S. at 270; Schware, 353 U.S. at 234 (“connection with subversive organizations”). 6 Baird v. State Bar of Ariz., 401 U.S. 1, 4–5 (1971) (“or any organization ‘that advocates over-throw of the United States Government by force or violence’”). 7 See RONALD K.L. COLLINS AND SAM CHALTAIN, WE MUST NOT BE AFRAID TO BE FREE: STORIES OF FREE EXPRESSION IN AMERICA 5 (2011). 8 Id. 9 See Daniel A. Farber & John E. Nowak, Justice Harlan and the First Amendment, 2 CONST. COMMENT. 425, 429–30 (1985) (stating that Harlan appeared to have been strongly influenced by Justice Frankfurter). 10 See Patrick Schmidt, “The Dilemma to a Free People”: Justice Robert Jackson, Walter Bagehot, and the Creation of a Conservative Jurisprudence, 20 LAW & HIST. REV. 517, 523–24 (2002) (describing Justice Jackson’s jurisprudence). 11 Schware v. Bd. of Bar Exam’rs, 353 U.S. 232 (1957); Konigsberg I, 353 U.S. 252 (1957). 12 Konigsberg II, 366 U.S. 36 (1961); In re Anastaplo, 366 U.S. 82 (1961). 2012] HUGO BLACK’S VISION 693 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.14 Centered on Justice Black, this Article is a legal history of the decisional processes, political influences, and jurisprudential ideologies involved in these four cases. It also provides a window into what the Justices saw as the role of the legal profession in the criminal justice system, as well as in national security. That said, although Black failed to build a sustained majority, his ideology ultimately prevailed over time through other decisions and independent acts of state bars, which, in turn, significantly modi- fied Harlan’s jurisprudential ideology. There were two changes on the Court between the first two decisions and the second two. In 1957, the Court consisted of Chief Justice Earl Warren and Justices Hugo Lafayette Black, Stanley Forman Reed, Felix Frankfurter, William Orville Douglas, Harold Hitz Burton, Tom Campbell Clark, John Marshall Harlan, and William J. Brennan, Jr.15 By 1960, Reed and Burton had left the Court and were replaced by Justices Charles Evans Whittaker and Potter Stewart.16 However, neither Whittaker nor Stewart played a dispositive role in the decisions; though, in a contempt decision, Stewart’s concurrence effectively deflated Frankfurter’s and Harlan’s dissents.17 A brief note on this Article’s legal history methodology is important. Lawrence M. Friedman, one of the late twentieth-century’s prominent legal historians, aptly ob- served that legal history is far more than the passage and enforcement of laws; it is also about the people on both ends of the process.18 This Article is written with Friedman’s view of legal history. Likewise, Bernard Schwartz, another of the twentieth century’s leading legal historians, noted in his study on the Burger Court that because much of the important work of the Court is done in private, studying the correspondences from the conference sessions after the cases have been argued are critical to assessing how the majority, concurring, and dissenting opinions were formulated and what the Justices intended, in addition to the consensus opinions.19 The same could be said for the pre- ceding Warren Court, and where possible, this Article relies on original documents such as conference memorandum and personal correspondences, rather than secondary 13 For more on Black’s jurisprudence see HOWARD BALL, HUGO L. BLACK: COLD STEEL WARRIOR 28 (1996). 14 Id. at 115; see also ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY 412–13 (1994). 15 MEMBERS OF THE SUPREME COURT OF THE UNITED STATES, http://www.supremecourt .gov/about/members_text.aspx (last visited Mar. 15, 2012). 16 Id. 17 In re Sawyer, 360 U.S. 622, 646–47 (1959) (Stewart, J., concurring and Frankfurter, Clark, Harlan, and Whittaker, JJ., dissenting). 18 LAWRENCE M. FRIEDMAN, LAW IN AMERICA: A SHORT HISTORY 4 (2002). 19 BERNARD SCHWARTZ, THE ASCENT OF PRAGMATISM: THE BURGER COURT IN ACTION 11 (1990). 694 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 20:691 sources.20 This Article does not conclude, as some recent scholarship has done, with the claim that since September 11, 2001, Konigsberg II and Anastaplo have been given new life, or that the government is pursuing an agenda similar to the Cold War attempts to limit the bar.21 On the contrary, the bar is far freer today than in most of its history to defend notorious cases despite the wishes of some government officials.22 To the extent this Article advocates any cause, it is that of historical accuracy.