Loyal to the First Amendment
March 2006

The first time I appeared before the United Supreme Court was on December 8, 1969, when I was only 28 years old. Because I had not practiced long enough to be admitted to the Supreme Court Bar, I filed a petition to appear pro hac vice, which Chief Justice Burger denied. In a move that wasn’t going to please him, we appealed his order to the entire
Court, which reversed the denial and permitted me to appear before the Court.

My client was my wife, Sara. She had graduated from Stanford Law School and was number one on the Arizona Bar Examination. Without evidence of bad moral character or any connection to a “subversive organization,” the State Bar would not admit her because she had refused to sign the Loyalty Oath and, in particular, she had refused to tell the Bar Examiners what her “political beliefs” were. Representing the State Bar was Mark Wilmer, the most accomplished trial lawyer in Arizona.

Because John Frank and Paul Ulrich had worked on the briefs, they sat next to me as I tried to unstick my tongue from the roof of my mouth. Nerves were to be expected of any lawyer, but we faced an unusually difficult situation: Nixon was President, the Vietnam War was raging, McCarthyism still existed, “disloyalty” was a hot issue, Earl Warren had retired, Abe Fortas had resigned under fire, his replacement had not yet been named, and the Court had recently ruled against a California bar applicant in a similar case.

Our position was simple: The First Amendment protected one’s political beliefs from any inquisition. Even if a bar applicant’s beliefs did not please the State Bar, those beliefs would be irrelevant because competence and character were all that mattered. Moreover, there were lawyers in those days who believed in segregation, and their noxious beliefs hadn’t disqualified them from practicing law.

As soon as I introduced myself, Chief Justice Burger jumped me: “Why should a Communist practice law?” Before I could even respond, several other Justices starting shooting questions at me like hot bullets. “Wouldn’t a Communist undermine our justice system?” “Aren’t beliefs the first step toward action?” And on and on.

Finally, I had had it with these black-robed aggressors. Out of control and out of my mind, I blurted out, “If you won’t let my client be a lawyer because of her possible beliefs, then you ought to disbar President Nixon because of his actual belief in an unconstitutional war.”

There was a stunned silence, John Frank buried his face in his hands, and the marble floor trembled beneath my feet. Pissing off the Supreme Court is not a good idea.

As it turned out, the Court could not make up its mind and scheduled another oral argument for the next Term when, with the appointment of Justice Blackmun, there would be a full panel of nine Justices.

The second argument was totally different: I behaved myself, nobody asked me much of anything, and it was Mark Wilmer’s turn to take heat, especially from Justice Black. In the end, the Court ruled in our favor, 5–4, with Justice
Blackmun being the surprise dissenter.

In her book Becoming Justice Blackmun, Linda Greenhouse quotes a memo from Justice Blackmun theorizing that Sara must have refused to take the loyalty oath because she had something sinister or subversive to hide. His suspicions were wrong. She had never belonged to anything more subversive than the Girl Scouts and the Young Republicans.

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