In re Anastaplo

PETITIONER:In Re Anastaplo
LOCATION:John H. Kerr Dam and Reservoir

DOCKET NO.: 58
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 82 (1961)
ARGUED: Dec 14, 1960
DECIDED: Apr 24, 1961

Facts of the case

Question

  • Oral Argument – December 14, 1960 (Part 2)
  • Audio Transcription for Oral Argument – December 14, 1960 (Part 2) in In re Anastaplo

    Audio Transcription for Oral Argument – December 14, 1960 (Part 1) in In re Anastaplo

    Earl Warren:

    In re George Anastaplo, Petitioner.

    Mr. Anastaplo, you may proceed with your argument.

    George Anastaplo:

    Thank you, sir.

    And may it please the Court.

    This case is here on writ of certiorari in the State of Illinois with respect to my application for admission to the bar.

    I should like to divide my argument into four parts.

    First, which I attempt the brief survey of the facts of the case, second, to proceed — to analysis for the character and fitness evidence in the case.

    Third, to a consideration of one of the reasons for the refusal of the State Bar authorities to abide by the character and fitness evidence, as I see it, and second — and the fourth part attempt to discuss the second of the two reasons that are given.

    I kind of hope to do more and to consider quickly some of the matters which I have — perhaps rather exhaustedly discussed in my brief.

    Let me say at the outset, in — in doing so, a quote from my brief that is well to emphasize which should be apparent from the statement into the case and to the facts which I will narrate.

    The question of membership to Communist —

    (Inaudible)

    George Anastaplo:

    I’m sorry.

    The question of membership in the Communist Party are in the Ku Klux Klan is not an issue in this bar admission case.

    But at most, only the effect in the bar admission proceeding of a conscientious refusal to answer in parties about such membership when it’s conceded that there is no allegation or evidence in membership when the inquiries occur only in the context of badgering about philosophical and political views, particularly views about the right through — about the right of revolution, and when silence is couched in a form of refusal to submit to something deemed by the applicant to be in the nature of the test oath and to be improper ungentlemanly and unconstitutional inquiry.

    This case began 10 years ago in November of 1950 when the occasion of my appearance — my first appearance before the Bar Admission Committee in Chicago.

    At that time, the questions that were being asked of bar applicants were concerned mostly with what is traditionally considered to be character and fitness matters.

    However, on occasion, the Committee would stray into other areas that is to say if the — if for some reason the applicant made them suspicious or otherwise antagonize them, there would be — there would then emerged questions about political matters.

    One of the test questions then being asked was, “Do you believe that a member of the Communist Party should be permitted to practice at bar in Illinois?”

    That indeed was a question that was asked to me.

    I answered that I thought that the Communist Party member should be permitted to — to practice law if these were all — there was no — I’m paraphrasing now the first few exchanges.”

    Thereupon, the discussion turned to the problem of “right of revolution” simply because it was thought that the Communists espouse revolution and therefore should not be eligible for admission.”

    I responded with the observation that I thought that espousal or revolution should be no grounds for exclusion.

    This — this prompted rather here to exchange which thereupon led to one of the members of the Committee panel asking, “Are you a member of this or that organization?

    But first of all, give me all your organizations that you’re member of,” and finally concluding, “Are you a member of the Communist Party?”

    to which I responded that they had no right to ask such a question and that in any event, I will not answer it.

    And that has been essentially the position ever since.

    I will return to this — both of these points, the unanswered questions and the refusal and the reviews on Declaration of Independence, the “right of revolution”.

    Potter Stewart:

    Mr. Anastaplo, under the Illinois system, at what stage in the process does the character examination come after?

    After the applicant has passed the bar exam and met all the other qualifications.

    George Anastaplo:

    Yes, sir, in Illinois, it’s after the applicant has finished law school, passed the bar examination and fulfilled all other requirements.

    This is the last stage.

    And I may say it’s usually a formal, rather formal stage in the sense that — it’s usually applied to have any proceeding is — is over with.

    The — in 1954, the Supreme Court of Illinois considered my appeal from that earlier decision and rejected it.

    The — as you know, I attempted to secure review in this Court and failed at that time to secure review.

    Thereupon, in 1957, after the — this Court handed down the decision in the Konigsberg and Schware cases, I again reapplied for rehearing.

    The Committee, thereupon, asked me to state my position on two points, one, what are my present views in the “right of revolution”, what is my present attitude toward the questions I had previously refused to answer.

    And I, thereupon, answered in that supplementary petition, which is found at page 484 of the record, in which I explained my views on “right of revolution” where — and in which I said that I will continue to refuse to answer any questions about any — for the organizations, which I should also note at this time, had included questions about Communist Party, the Ku Klux Klan and all other organizations to which you might belong.

    I appealed from the order of the Court or the Committee refusing to rehear my application.

    And the Supreme Court of Illinois, in the fall of that year, handed down an order which is found in the record and in the Supreme Court opinion of the Court — in the (Inaudible) of the court below.

    That order which is best illuminated if you’ll look at pages 6 and 7 of my petition for writ of certiorari.

    That order was — was one in which the Court ordered the Committee or requested the Committee to rehear the application.

    If you’ll notice in the third paragraph of that — of that order, “The principle question presented by the petition for rehearing concerns the significance of the applicant’s views as to the overthrow of government by force in the light of Konigsberg and Yates.

    Additional questions presented concern the applicant’s activities since his original application was denied and his present reputation.”

    That’s on page 7 of my petition of the appendix — I’m sorry, of the appendix to my petition for writ of certiorari.

    Now, if you’ll notice that page, exactly opposite down, page 6, you’ll find there a dissent of the member — of one member of the Committee who had — who has suggested that the Committee should rehear the case without any further proceeding.

    Mr. Roscoe suggested that the Committee should not send the case up — should not deny the rehearing of the application in 1957 but should take on its own to rehear it.

    And if you’ll notice the language of his final paragraph is, except for few minor changes, the language that the Court has self adopted within order of the rehearing.

    Earl Warren:

    Where do we find that?

    George Anastaplo:

    On page 6, sir —

    Earl Warren:

    Of — of your opinion.

    George Anastaplo:

    — of the — of the appendix of the petition for writ of certiorari.

    Earl Warren:

    Oh, the appendix, yes.

    George Anastaplo:

    I’m sorry.

    It’s found nowhere else in the record, I should say.

    You’ll notice that Mr. Roscoe says, “I will grant the petition for rehearing, take evidence on one applicant’s activities during the period.”

    And you’ll notice that’s the second point of the Court’s order to his present reputation which is the third point of the Court’s order, three, his views of the overthrow of the Government, which is the principle question that the Court ordered the Committee to hear.

    And I cannot now show it to you because it requires a very careful analysis of his opinion — of his dissenting opinion.

    But you will see that what had been ruled out by him, as — in — no longer applicable for consideration was the refusal of — my refusal to — to answer questions about these affiliations.

    He thought that that was no longer applicable because of the Konigsberg case.

    George Anastaplo:

    And consequently, he — he argues that throughout his opinion then says, “These are the only three questions left.”

    And I argued the — in consequence that the Court also seem to say this by silently rejecting the — at any reference to the problem of the questions unanswered which the Committee had raised when it — I’ve — I gone before them for the rehearing application.

    This, I suggest, also was their rather tactical way of advising their Committee that there was no need to go off on this again.

    And you will see later, I believe, why they should want — but first of all to be tackle and two, what it thought it should not be done.

    The Committee, however, disregarded what I take to be — to have been the mandate of Court.

    The Court later, I should add, disregarded what it had itself implicitly suggested.

    Earl Warren:

    May I ask, Mr. Anastaplo, if all of the six questions that — that are — that you’ve pointed out to us on page 485 of the — of the record are involved at the present time?

    George Anastaplo:

    No, sir.

    Not all of them but more and yet different ones.

    Earl Warren:

    Is there anyone placed in that the record where they’re all — where they’re all stated together?

    George Anastaplo:

    Not in this manner.

    Not that I can recollect.

    Earl Warren:

    Yes.

    George Anastaplo:

    The — the second questions — second, third and fourth questions are still in effect being asked.

    The first, second, fifth and sixth are not being asked any longer.

    But in addition, there have been questions asked about any number of organizations, some of which neither of the Committee nor I knew anything about except the fact that they were on the Attorney General’s list in which I refuse to answer.

    Secondly, there were questions asked about religious affiliations and beliefs which I refused to answer and which the Committee later on repudiated in circumstances that by themselves interesting, that is to say they repudiated partly, I suspect, because one member of the Committee made a mistake upon rely — of relying upon a case that had been overruled in support of his questions and when that was shown up, the — the whole thing sort of crumbled.

    Earl Warren:

    What were the questions about religious beliefs that they asked?

    George Anastaplo:

    On theory that an applicant who must take an oath must show or must be — may be asked to show that his views about God and the eternal or such has to make his oath meaningful.

    They — the question was asked whether or not I believe in God, whether I had any sanctions to my oath in addition to the ordinary ones such as fear of perjury, one’s self-respect, one’s respect for the truth and so forth.

    Felix Frankfurter:

    Are there religious questions before it?

    George Anastaplo:

    Yes and no, sir.

    Not formally in the sense that they repudiated it.

    But yes, in a way, because I — it’s my suggestion that those questions in a way point up the whole problem with the Committee’s procedure, that is to say those questions were before the Committee for approximately three or four weeks through several sessions.

    They were only repudiated later after very strenuous resistance on my part.

    They are before you in other sense.

    They indicate to you.

    I suggest that there is no rule, practice, procedure or statute in Illinois which says that all questions must be answered.

    Felix Frankfurter:

    Do you mean rightly infer from your answer that you mean although a Committee asked questions, which for purposes of argument, are offensive or impertinent in a legal sense but later withdraws them that that is in effect but in legal purposes because it betrayed their state of mind and they couldn’t redeem to have rid themselves of having asked those questions —

    George Anastaplo:

    Well —

    Felix Frankfurter:

    — is that the point?

    George Anastaplo:

    That’s partly, sir.

    Judge Bristol, in fact, makes that point that two — one member of the Committee had said that this is so important to me that a — that a member of — of the — that an applicant permission who refuses to answer that kind of question would raise serious problems for him.

    Felix Frankfurter:

    And he’s given all those penitentiary, he can’t subsequently say nolo cons paenitentiam.

    I can’t subsequently say no.

    I (Inaudible) I was wrong.

    I blot that out of my mind.

    George Anastaplo:

    Well —

    Felix Frankfurter:

    — and certain things couldn’t be blotted out of a jury’s mind, is that it?

    George Anastaplo:

    Well, I would not go that far.

    I would say that it makes it unlikely.

    I would also add that the fact that they had to be repudiated does not make the petitioner’s or the applicant’s standing what the people who have had their question repudiated any higher.

    As to say, there is no member of the Committee who had a question refused and answered a question refused that he asked who voted for my application.

    Felix Frankfurter:

    Well, get down to that.

    That — that —

    George Anastaplo:

    Yes.

    Felix Frankfurter:

    — they’d disclosed the state of mind that precluded their having a wiser thought later.

    George Anastaplo:

    That — I think that — that can be said but I would also add that it also indicates that there is no practice in Illinois that any question that one asks — is asked must answered.

    And that, of course, has implications which I would view shortly.

    Now, the 1958 hearings which ran for six sessions, approximately 20 hours, dealt with character and fitness in the ordinary sense about where I’ve worked, what I’ve done and so forth.

    They’d also returned to the old questions about the affiliations which I refused to answer, the same reasons, expelling the reasons out.

    It included the religious question that I referred to.

    It included long discussions about the Declaration of Independence on the right of revolution.

    It also included something that is distinctive.

    It included the concession of the Committee at one point of the hearing after considerable amount of effort on my part to get the concession from them.

    The concession was that we have never had any kind of evidence, any affirmation, any suggestion to us that you’re a member of the Communist Party, Ku Klux Klan or any of the other organizations on the Attorney General’s list.

    And this is a concession which has a bearing upon the importance of the unanswered questions.

    Hugo L. Black:

    Where is that?

    George Anastaplo:

    At — I think it’s three — I’m sorry, sir.

    I’ll —

    Hugo L. Black:

    Alright, go ahead.

    George Anastaplo:

    I’ll — I think it’s 234.

    Yes, 234 of the record.

    But I will deal with this also.

    Thereupon, after the Committee again refused my application, this time by a vote of, say, 2-to-1, that is to say 11 — 6-to-11 — 11-to-6.

    I appealed once — once more to the Supreme Court of Illinois in this — in this occasion that the Court upheld them by — by a vote of 4-to-3, with Justices Bristol, Schaefer and Davis dissenting.

    And on that — it’s from that opinion and — the decision that I appeal here.

    Potter Stewart:

    Do I understand that the — this is not actually technically an appeal to the Supreme Court of Illinois.

    It’s the — it’s — the ultimate decision rests with the Supreme Court of Illinois, is it not?

    George Anastaplo:

    Yes, sir.

    Potter Stewart:

    (Voice Overlap) —

    George Anastaplo:

    The — the Commissioners —

    Potter Stewart:

    The Commissioners are advisory only, is that —

    George Anastaplo:

    That is correct.

    The Attorney General in his brief, now, I turn to the character and fitness evidence simply.

    It seems to concede that that evidence is, in the ordinary sense, overwhelming and uncontradicted.

    But then, of course, he does not — not addressed to that.

    But I say the evidence in the ordinary sense, that is to say as to what — when life is life but when it’s done, his occupation, his activities or whether he is honest with —

    (Inaudible)

    George Anastaplo:

    No.

    I’ll — it’s probably my fault, I’m sorry.

    (Inaudible)

    George Anastaplo:

    You know — I say the character and fitness — moral character of the — character and fitness in the ordinary sense seems to be conceded to be overwhelming and uncontradicted.

    Certainly, I know of nothing in the — any evidence in record and no one has very pointed any evidence in the record which would contradict this.

    In — in fact, if you will turn to record 514, you will find that the court itself, below, makes this concession.

    You will see at the bottom of page of 4 — 514, if I may read it, “During the interval between the denial of his original application and the submission of his second application, Anastaplo has been employed greater part of the time as an instructor and research assistant at the University of Chicago.

    The character affidavits and letters of reference supplied by Anastaplo disclosed that he is well regarded by his academic associates, by professors that had taught to him in school and by lawyers who were personally acquainted with him.

    The Committee said that it’s not been supplied of any information by any third party which is derogatory to Anastaplo’s character of general reputation and it has received no information from any outside source which would cast any doubt on Anastaplo’s loyalty or which would pretend to connect him in any manner with any subversive group.”

    And then this next sentence, “The Committee further advises us that he has — he has conducted no independent investigation into Anastaplo’s character, reputation or activities.”

    Now, if you will turn then to page 542, you will see Judge Bristol’s evaluation of his evidence.”

    George Anastaplo:

    Any realistic appraisal,” and this is at the bottom page, “any realistic appraisal of this record indicates that from the search and examination of applicant, from his letters and writings and the responsibilities of a citizen and lawyer to our Government and the writings of statesmen and the scholars, refused to embrace from the affidavits enlisted by the Committee and from the Committee’s own independent investigation, you should have well known that his moral — he should — he should have well known — he should have known well George Anastaplo, his moral character and his views respecting our constitutional government.

    Moreover, through its power of subpoena, the Committee could have supplemented that fund of knowledge if necessary.”

    Now, I’d like to refer to that one state, a closing question, a closing point in the per curiam opinion on page 5 — 4 — 15, that is the Committee further advises us that it has conducted no independent investigation.

    This is not quite accurate.

    That is to say, if you — you will find references collected in the record in the brief at page — note 54 of my brief in the merit which indicate that a number of investigations or inquiries were indeed made.

    And on May 1950 and 1951, an investigator called my hometown at least two occasions and found nothing adverse and consequently nothing to be purported.

    And as indicated also by that same — in the note 54 of my brief, there are indications that members of the Committee on this occasion made independent inquiries of lawyers, teachers, people who knew me in Chicago found nothing adverse and consequently nothing was reported.

    It seems to be true unless something adverse is found or something that goes against the general trend of the record, it is not worth noting.

    Now, to be precise of the character point, I should also remind you about the affidavits and references that are found in the record.

    And — and particularly the ones at 405 and following which are from (Inaudible) who are — who can be expected, I — I, there say, to speak honestly, and who — who wrote directly to the Committee and not to me, whose — whose affidavits I did not even see until after the record been made — had been sent to the Committee.

    This has the other evidence, I suggest, substantially supports the clear indication in the record that on ordinary character and fitness grounds, there is no problem.

    Now, why not this evidence allowed to stand?

    I mean why is it not allowed to have its full effect?

    And we must not think that the — the burden in these manners is very heavy in the ordinary sense.

    I’ve already referred to the fact that hearings are conducted very quickly usually and more or less pro forma.

    The evidence is not allowed to stand as it’s indicated both by the Committee and by the Court for two reasons.

    One, because of some views I expressed in the “right of revolution”, and two because of the questions I have refused to answer.

    Let me deal with the latter first.

    Now, the failure to answer questions as to possible membership in the Communist Party and the Ku Klux Klan which is urged the basis for rejection has to be examined with somewhat more care, I submit, that it has been examined below.

    One, I — I take it, no one has denied that the reasons for not answering these questions are not trivial, that is to say that the sincerity or the refusal to answer doesn’t seem to be questioned.

    And as you’ll see in the record, there are extensive explanation of why the refusal is made.

    Now — and especially you will find that my closing argument, which is at page 314 of the record, my more or less comprehensive view of what the case is about and why I have not taken — I refused to answer for any questions about political affiliations.

    Now, I’m prepared to argue that the questions themselves are generally improper for bar admission proceeding.

    But that is unnecessary to be reached here.

    I — I have set forth the arguments in the brief but let me go on to consideration of what the failure to answer in this context means.

    The — let me emphasize first of all that there is not any statute or rule in Illinois requiring the asking of questions about affiliations.

    The only requirement is to respect the character and fitness.

    And on page 7 of — of my brief, you will find the principle controlling rule set forth.

    It is the rule of Supreme Court of Illinois which sets up the Committee and prescribes its powers in which — which concludes, if the Committee is of the opinion that the applicant is of approved moral — approved character and moral fitness, it shall — so — it shall so certify to the Board of Law Examiners and the applicants shall thereafter be entitled to admission to the Bar.

    Now, if you compare this to the statutes which require non-communist oaths, such as one we have in Illinois, for employees.

    George Anastaplo:

    You will find that this isn’t worth — this is more difference.

    There is no requirement anywhere that is placed upon the Committee either by rule of court, by statute or by decision that no requirement that they must get into these questions that they must settle them, that they must answer them.

    In fact, as I’ve already — the 1957 order which — which — under which this rehearing was conducted can be read.

    It can be read as implicitly suggesting to them that they’ll not go into these questions.

    In fact, Judge Bristol, at 535, addresses himself to this very point.

    He says, “Although the majority report denied applicant admission to the Bar essentially because they claimed his failure to reply to questions on membership in the Communist Party or other subversive groups, prevented inquiry in the subjects which bear an issue of character, it is significant that the majority made favorable findings on all matters designed for inquiry in our rehearing order.”

    They found that applicants the use of “right of revolution” was not objectionable nor was there anything objectionable in its activities since the original petition was denied or with respect to its present reputation.

    If there is no rule, if there is no statute, if there is no order requiring these questions to be asked or answered, what basis is there?

    Well, the only basis for asking the questions seems to have been the espousal of the Declaration of Independence, that is the concession the Attorney General seems to make in pages 9 and 30 of his brief and to this I will return.

    Then we have, in evaluating the refusal of the question — refusal to answer his questions we have the concession, which I have already quoted, that is to say the concession for the Committee that they have no evidence with respect to this matter whatsoever.

    Yet, the Committee acclaims that they have been obstructed in the — in the fulfillment of their duty, that without answers to these questions, they cannot reach the decision as to whether or not, one’s character and fitness is adequate for admission to the Bar.

    Now, this obstruction, I take it, must be one of two kinds.

    It can be a constructive.

    It’s not the word they used, but I think it’s better than any word they do use.

    Attorney General seems to suggest this in his argument, he talks about presumptions.

    But this kind of constructive obstruction, I submit, would follow only if there is a legal basis for requiring answers to all questions.

    But I also have — must say that there is none.

    And there — and furthermore, there was not in this hearing any kind of indication that questions must be answered, all questions must be answered at every point where the Committee was near giving anything like a warning that all questions must be answered.

    They qualified it.

    And you will see this throughout the record.

    You’ll see it throughout my brief on the merits.

    The brief in the merits is consigned — is devoted primarily to a very long and I think careful summary of the facts of the case and I have italicized in it the various places where the Committee backs away from any kind of warning, from any kind of clear indication that they would not consider further application in which one has refused to answer.

    They — they simply say that this would be one more piece of evidence, that’s the most they can say, serious, perhaps, but one more piece of evidence, not a clear cut basis of rejection.

    The — and of course, a good example of why this kind of warning cannot be made, why the rule cannot be made, is effect that you can see the religious questions because the Committee members are essentially uncontrolled and uncontrollable.

    Everyone can ask what he pleases.

    There is no effort, so far as I’ve ever seen, to restrain them.

    Consequently, the Committee does not want to bind itself to whatever any particular member might add and — and therefore, they cannot make a more formal rule such as that which might follow that.

    If you don’t give your name, if you don’t give us your criminal record, if you don’t answer to fill out the questionnaire, therefore, we will not teach you.

    That — that’s the situation here.

    Now, if there is not what I call constructive obstruction, I think everything in the record would indicate there cannot be constructive obstruction.

    George Anastaplo:

    If there is not what I call constructive obstruction, was their actual obstruction?

    What would they, in fact, unable to reach a conclusion of character and fitness?

    Well, did this impede them?

    As I’ve said before, this Committee hearing ran on for 20 hours or so over several months, 20 hours after the first refusal to answer was — was given.

    In fact, the Supreme Court of Illinois knew even before the hearing started that would continue to refuse to answer these questions that document, I’ve referred to you already at page 484 on basis of which the — the order in 1957 was granted was itself — clearly indicate — itself clearly indicated that I would continue to stick my position I’ve taken before.

    And yet, the — the order did grant the rehearing and the rehearing ran.

    Now, furthermore, the fact is that the Committee, not only knew the question and not answer, but they again, again said they wanted to know the reasons why.

    They want to examine with, they want to discuss it, which I’ve cleared the implication that the thing was open.

    Furthermore, I should think that if a Committee is going to allege obstruction, it must act as if it had been obstructive.

    That’s not the case here.

    You cannot say that a record which ran for 400 pages after the first or several hundred pages, I say, at least 350 pages after the first questions refusal to answer were put to an applicant.

    You cannot say that that is obstruction, obstructive hearing.

    The Committee ran, I suppose it, one or two, they asked all the questions they wanted to, Oath Committee members asked questions.

    True, they could not ask questions that would follow from the refusal from an answer as to affiliations but that is not, I there say, much of — of objection because it says the fact that their concession about no evidence and no other — and no information to this respect.

    Earl Warren:

    As I understand you to say, Mr. Anastaplo, that the Committee never — never told you that the — in the — in the absence of answers to those questions that they would not admit you?

    George Anastaplo:

    Yes, sir, there was never this kind of unequivocal warning.

    Earl Warren:

    Yes.

    George Anastaplo:

    Let me also add, in all fairness, isn’t they had — as to not have answered —

    Earl Warren:

    No, no —

    George Anastaplo:

    Yes.

    Earl Warren:

    — I understand that but I was just — I thought you have said that (Voice Overlap) —

    George Anastaplo:

    Yes, that’s certainly true and this is pointed out very nicely, by the way, in Professor’s Calvin and Steffen’s amicus brief.

    Felix Frankfurter:

    You mean to say the record does not disclose that you were unequivocally advised that several States is taking the answers to those questions of vital concern to their disposition?Is that what —

    George Anastaplo:

    That —

    Felix Frankfurter:

    — you’re saying?

    George Anastaplo:

    That is somewhat different phrasing, Mr. —

    Felix Frankfurter:

    Rephrase it your way.

    George Anastaplo:

    Yes, some of them said these were very important questions for us.

    Some said they might even say vital.

    Felix Frankfurter:

    That — that was?

    George Anastaplo:

    Some of them even say they’re vital questions.

    Some of them, we think they are very important.

    But I thought the Chief Justice’s question was, did they say that unless you refuse to answer, we would not admit you or would not recommend your admission which all we can do.

    Earl Warren:

    That was my question.

    George Anastaplo:

    That was not what they ever said.

    Felix Frankfurter:

    Are you saying that you were not aware because your refusal to answer these questions maybe determinative of their disposition?

    George Anastaplo:

    No, I — I do not want to say either, sir.

    Earl Warren:

    I didn’t ask you that question.

    Felix Frankfurter:

    I didn’t say you were asked, I was asking my question.

    George Anastaplo:

    Oh, sorry.

    No, I had a pretty good idea that if I persisted, I — in this position, I might be rejected again.

    Felix Frankfurter:

    Alright.

    George Anastaplo:

    But I also had the idea that was a possibility I might convert two or three more.

    Felix Frankfurter:

    In short, there is no suggestion, is there, by you that you were taken by surprise?

    George Anastaplo:

    The first time I was.

    Felix Frankfurter:

    I’m — I’m talking at — on —

    George Anastaplo:

    Yes.

    Felix Frankfurter:

    — totality of the record.

    Are you suggesting you were taken by surprise?

    George Anastaplo:

    No, sir, not in 1958.

    By that time, I had — I had been given plenty of warning of a certain kind.

    But I do not believe I — that is a kind of warning that is required for a more or less automatic application of a rule which says, “No answer, you must be excluded.”

    That — I — I think that has rested on some kind of rule or statute which I do not think they can really set up in this case because of difficulties with members of the — of the Committee.

    Felix Frankfurter:

    Are you suggesting that — that whatever requirement of notice there may be, in all sorts of situations under the Due Process Clause of the Fourteenth Amendment that you did not have notice?

    George Anastaplo:

    So far as that notice has been defined in the Konigsberg case, yes, sir.

    I have not had that notice.

    On the other hand, I would not rely upon that distinction because as I said to you, even with — even with such notice, I still would not have answered these questions.

    Now — now the problem is then, I — I take it, the real question is what does this refusal which is clearly, I believe, on some kind of principle whether misguided or not.

    What does this refusal mean?

    I think it’s one piece of evidence to be evaluated like all the rest.

    George Anastaplo:

    Now, I’m not suggesting that this Court should act as State Supreme Court judges or as legislators, second guessing.

    Or I realized some of you may well think that if you had been on this Committee or if you’ve been on a court, you might have acted differently from the majority.

    That is not the point I’m making.

    The point I’m making is this, if you had been an applicant and you were asked these questions and you refused to answer in thinking that they were improper, uncalled for, unfounded or for any number of reasons that have some plausibility and which in the record are very clearly shown to be based on some kind of principle, constitutional rather, would your refusal on these circumstances — should I refuse them — these terms has to be regarded as adverse evidence to application for admission on moral and character grounds?

    That is the issue and not what you would not — would or would not do if you were sitting in the seat as Supreme Court judge.

    I will go further.

    I would say that this evidence in this record, in a circumstance to this case, is really favorable evidence.

    And I would like to turn to note 40 in my brief which is at page 69.

    Earl Warren:

    Of your brief?

    George Anastaplo:

    Yes, sir.

    On page 69 in which I quote there from the law — from the law review article by Brown and — Spencer Brown of Yale.

    And he gives there an indication of what the atmosphere has been in Chicago respect — in the course of which these proceedings took place.

    You see at the bottom page, he says, “The fair petitioner,” that’s me, “the fair petitioner made a considerable impression on his contemporary in Chicago.”

    One of them wrote as follows, “Although I have never been a Communist nor a member of — of organizations on the Attorney General’s list, my enter to the such that had I acted with complete sincerity,” I would not have replied, “No, sir,” of the questions I was asked what membership in subversive organizations.

    But I decided in advance as did most of my friends to give the answers best fitted to admission to the Bar without difficulty.

    That is the atmosphere in which all these proceedings took place and that’s why I suggest that if anything, this evidence might well be taken to be favorable evidence for an application for admission.

    And the fact that there is this kind of atmosphere and this kind of intimidation, in bullying of applicants, is one reason why I have taken the position that I have.

    Now, I promised you this word to our Declaration of Independence.

    I’ve always thought necessary, as Lincoln thought necessary, to insist upon a Declaration of Independence as one of the — the constitutional documents on — upon which this nation is based.

    My position, Your Honors, has been one of defense with the Declaration.

    Attorney General concedes that it was my defense or rather more than that, it was my espousal or the very words of the Declaration that made the questions necessary.

    If you’ll turn to page 30 of his brief, on page 30 he says, “If petitioner means to suggest, Committee on Character and Fitness must —

    Earl Warren:

    Where are — are you reading from?

    George Anastaplo:

    I’m sorry, page 30 of — of the Attorney General’s brief.

    Earl Warren:

    Oh, the Attorney General’s brief.

    George Anastaplo:

    I’m sorry, sir.

    It’s the blue covered.

    Earl Warren:

    Alright.

    Yes.

    George Anastaplo:

    “If petitioner means to suggest that the Committee on Character and Fitness must ask every applicant question as to his possible membership and affiliations with subversive groups or may ask none of them any such questions, his argument seriously misconceives the Committee’s functions and gravely misprices the import of the equal protection.

    George Anastaplo:

    Petitioner had admittedly written some prose that could not possibly disqualify him ipso facto from any right or privilege to which he was otherwise entitled.

    That — but that did awaken a most natural inquiry as to what he meant by it.”

    What prose what this?

    Well — and I must refer you to my reply brief which I set the prose out.

    I discussed this issue there between pages 12 and 17 and on page 15, you’ll find the prose upon which it seems to be said the inquiries were based which awaken the most natural inquiry.

    And you — you’ll find there, in the essay, which I submitted in 1950 as part of the petition — as part of the application for admission.

    And you’ll also find toward the bottom of the essay, a number of words italicized.

    These, so far as I know, these are the only expressions, the only prose which can be taken by any reasonable stretch of imagination to have been the basis of the inquiry in — according to Attorney General’s formulation.

    That is to say, I conclude this essay on — in answer — response to the questions and statements which you consider to be the principles underlying the Constitution of United States.I — I conclude the essay.

    And of course, whenever the particular Government in power becomes destructive of these ends, it is the right of the people to alter or to abolish it and thereupon to establish a new government.

    This is how I view the Constitution.

    This is the only prose on the record.

    That was — that was before the first questions were asked.

    This is the only prose that fits the designation of the Attorney General and this is the only prose and this is the prose, I’m quite willing to defend because as I’ve indicated here, the italicized words, “Whenever Government becomes destructive of these ends, it is the right of the people to alter or to abolish it or taken verbatim from Declaration of Independence.”

    And that, I suggest, cannot be the basis for any kind of inquiry by subversive affiliations or so-called subversive affiliations.

    However, there’s one more reference here and that is a Committee now says that however questionable these views may have once been, we now concede that they are not the basis of our decision.

    There — there, perhaps, are little bit more libertarian, a little bit more zealous and ordinarily as a case.

    But what is — but we have set these aside.

    But then they go right on to say that my views about resistance to court decrees in some circumstances make my character and fitness for admission to the bar questionable.

    This you will see at pages 515 to 516.

    Earl Warren:

    The record?

    George Anastaplo:

    The record, I’m sorry.

    The Court — I’m sorry — at the bottom page, “The Committee regarded Anastaplo’s views bearing upon his attitude towards established authority and orderly Government procedures as relevant to an inquiry into his character and fitness for admission to the Bar.

    First, Anastaplo declined to deny.

    The circumstances might exist under which he would resist by force, federal or state officers seeking to enforce judgments are decreased in proceedings against impersonally which have become final after full review by the highest court having jurisdiction.

    Anastaplo testified,” and this is in accurate quotation, “I would not care to say, there might not be instances where resistance to an officer of the law executing such a mandate might not be improper.”

    But what is not quite accurate is the interpretation.

    And for this, I prefer Judge Bristol at page 528 which I think conforms to the record.

    “The per curiam opinion clutches its strolls by even referring to Anastaplo’s views and resistance to a court decree as grounds for denying admission to the Bar.

    In view of his unequivocal statement that he would resist a court decree only under circumstances where constitutional government has been subverted, so the resistance would really be aimed at restoring our Constitution and supporting it without reservation.”

    George Anastaplo:

    Surely, this is no war against the Constitution as per curiam opinion implies.

    And I must say again that if a court, if the highest court of the land, as this Court is, were to hand out a mandate in circumstances where there either demand were in circumstances, where it’s clear, the constitutional government has been corrupted and destroyed, then one is obliged to resist such a decree.

    Now, I know of no instance when this has ever happened in the history of the United States.

    I do not foresee it happening in the history of United States.

    But if sometime the judges who occupy this Court should become so corrupted, so mistaken, so perverted in their notion about what their duty is as to destroy our constitutional government, I dare say we’re all obliged to resist such a decree.

    We — we have examples all over the world where the highest courts of the land have handed down, have been in submission of such tyranny.

    Felix Frankfurter:

    Corrupted and — or mistaken, those are very different concepts to mine.

    George Anastaplo:

    I — I was very qualified — I tried to qualify it, sir, mistaken in a most serious fundamental sense, a mistake such it destroys the very constitution which they have taken in oath to — to defend.

    Felix Frankfurter:

    That is the (Inaudible) case?

    George Anastaplo:

    I’ve already said that.

    I know of no instance in which this would happen.

    This has happened but I do not want to say and I do not think an American should be called upon to say, there might not be an instance in which a tyrannical act of government should not be resisted.

    Felix Frankfurter:

    But is — is a mistake — does a mistake arrive out of a tyrannical attitude?

    George Anastaplo:

    I say if the Government itself is tyrannical, if — if it’s an instrument of tyranny, if it is a — if it’s a government which obviously is no longer supporting the Constitution, then it in any of its branches, executive, legislative or judicial no longer deserve support of the people.

    Felix Frankfurter:

    But very high minded people have thought or think that this Government — that this Court has handed down grossly mistaking decisions.

    George Anastaplo:

    Yes, and I have thought so too at times.

    But I’ve not thought there’s any of these have ever justified revolution and I do not predict that happening, but I —

    Felix Frankfurter:

    My — my difficulty arises from coupling mistaken with corruption.

    George Anastaplo:

    Yes, perhaps, the — mistaken as an unfortunate word if we think the mistakes are minor but if you think of it in the most fundamental sense, then, of course, one would have it.

    Felix Frankfurter:

    I wouldn’t call (Inaudible) mistaken.

    I wouldn’t call suppose to have been mistaken except in a very free willing use of the word “mistaken”.

    George Anastaplo:

    Yes, well, perhaps, I — I will take that correction and — and say that — but in those instances, a court would say Hitler dominates is a court didn’t deserve no respect from its citizens and consequently resistance, proper resistance maybe encountered.

    This is what Declaration of Independence mean.

    This is what I’ve always defended and this is what I must continue to defend.

    Now, let me sum up by saying a hearing has been conducted and I would suggest that the Committee is obliged to act according to the evidence which they have found.

    The evidence — the — the hearings be conducted according to their rules with their standards and decision should follow on that basis.

    The most that can be said against my petition is that the refusal to answer questions.

    But I have indicated why those questions have to be evaluated whether refusal has to be not analyzed and utmost it is only one piece of evidence.

    Certainly, I would add that the defense of the principles of Declaration of Independence which apply when tyrannical government threatens to extricate the rights of the people, certainly, the defense of those principles is not to be a basis for exclusion.

    I would suggest then that the question is whether in the language of the Court or this Court is the Schware case whether the Illinois Bar authorities could, on this record before you, reasonably find that the good moral character has not been shown.

    George Anastaplo:

    Thank you.

    Earl Warren:

    Mr. Wines.

    William C. Wines:

    Mr. Chief Justice, may it please the Court.

    May I begin by remarking on the question with which Mr. Anastaplo concluded his presentation.

    The question whether the Supreme Court of Illinois or anyone else could reasonably find on this record that Mr. Anastaplo is not of a character and fitness to qualify him for the Bar is not presented on this case because no member of the Supreme Court of Illinois so found or said that he’s so found.

    The Attorney General makes no such point.

    I can make clear the restricted basis and therefore, the limited scope of the questions presented by this case if I may make an extremely brief chronicle of what we conceived to be the salient facts in the case.

    I should like to say at the outset that through a misunderstanding that can’t possibly be have — have been due to anything more sinister, devious or subversive than inexperience.

    Mr. Anastaplo did not serve the Attorney General with the petition for the writ of certiorari in this case.

    The first intelligence that the Attorney General or the highest chief of this appeal section have, the petition had been filed or that there was such a case in this Court was when he received the clerk’s telegram saying that their writ had been granted.

    What happened was that Mr. Anastaplo, I’m sure in the utmost good faith, did serve the Chicago Bar Association or its president or Committees, did serve the Supreme Court of Illinois but neither of those bodies transmitted the petition to us because neither of them suppose that he hadn’t serve the Attorney General and that’s why no answer was filed to the petition in this case.

    With that explanation, I should now like to show the Court the really limited scope of the questions presented in this case.

    Mr. Anastaplo granted — graduated from the University of Chicago, College of Law in the year 1950, I believe, and I think I should add though he’s — he can properly that he graduated with distinction from that institution and that appears in the record or I wouldn’t mention it.

    He successfully passed the Illinois bar examination.

    He appeared before the Committee on Character and Fitness which is composed of members of the Chicago Bar Association.

    Mr. Anastaplo, having written on the subject of revolution, language that I don’t think intrinsically or per se suggest — I — may I withdraw that, intrinsically or per se declares any thoughts more subversive than those embodied in the Declaration of Independence was asked some questions as to what he meant by these writings.

    Potter Stewart:

    His writings appeared on his application?

    William C. Wines:

    That — on — on the application, I’m quite sure they didn’t.

    And where the information came from, I do not know.

    I do know that he was asked these questions.

    He declined to answer those questions, not suggesting any privilege against self-incrimination but asserting what he conceived to be a constitutional right of privacy stemming from the Fourteenth Amendment’s guarantee of the freedom of speech, political assembly and possibly other First Amendment’ rights.

    He was then asked, I think in those first hearings, whether he was a member of the Communist Party.

    He declined to answer that question, again, asserting what he conceived to be a constitutional right of privacy in silence under the Fourteenth Amendment.

    No claim that a truthful answer would tend to incriminate.

    He was then asked whether he was a member of the Ku Klux Klan.

    He made a similar response.

    And he was then asked whether he was a member of the Silver Shirts, a fascist organization.

    And he made a similar response.

    He was then asked whether he was a member of any association on the Attorney General’s list of subversive organizations and he made a similar response.

    Somebody asked him, we make no point of the fact.

    William C. Wines:

    We think the question was improper but absolutely innocuous whether he was a member of the Republican or Democratic Party.

    That question was obviously intended simply to find out what kind of questions he thought he ought to be asked not with anyone would qualify or disqualify him for any answer that he might make.

    And he was asked those questions about his memberships — I mean possible memberships in subversive organizations.

    He was then asked a different type of question.

    He was asked many questions as to his beliefs, his views or opinions which, of course, are very different things from memberships and affiliations on such topics as the “right of revolution”.

    Some of these questions he declined to answer.

    Some of them he answered.

    Some of them, I can only say he certainly responded to them but whether he answered them is something else I can’t.

    He was asked a question in reaction, if not an answer to which he expatiated.

    Now —

    Felix Frankfurter:

    May I ask you.

    William C. Wines:

    Yes.

    Felix Frankfurter:

    You said a minute ago, some of them, he did answer.

    William C. Wines:

    Yes, he did, he said —

    Felix Frankfurter:

    Would you — would you be give enough — give the concrete (Voice Overlap) —

    William C. Wines:

    Yes, he said that his views, as I recall them, I can’t just put my —

    Felix Frankfurter:

    What are the questions, Mr. Wines?

    William C. Wines:

    Way to reduce about revolution.

    Yes, he said in certain places that they were similar to those — that find utterance in the Declaration of Independence and the writings or speeches of Abraham Lincoln.

    Now, he was denied.

    Hugo L. Black:

    Are those the ones that caused the Board to think they should ask him these other questions?

    William C. Wines:

    I’m — I heard, Your Honor.

    I don’t think I understood Your Honor.

    Hugo L. Black:

    Well —

    William C. Wines:

    And I’m anxious not to —

    Hugo L. Black:

    He had said, as I understood you, those particular answers, those questions, his views on the Declaration of Independence prompted the Board to say they had — they went further to ask him (Voice Overlap) —

    William C. Wines:

    To ask him about Communist affiliations?

    Hugo L. Black:

    Yes.

    William C. Wines:

    Yes, sir, that’s correct and that is correct.

    It was his rights which I conceive to be ambiguous, not to per se seditious or subversive that prompted the questions as to his possible membership in subversive organizations.

    Earl Warren:

    Mr. Wines —

    William C. Wines:

    Now —

    Earl Warren:

    — was it in this — the same hearings that they asked him if — if he was a subscriber to the Daily Worker and if he was a subscriber to the Chicago Tribune?

    William C. Wines:

    I’m sorry, I’m not able to recall into which hearings he was asked and which questions.

    I simply haven’t mastered the record with respect to the dates on and — and I — I can look it up and give Your Honor a memorandum —

    Earl Warren:

    No, no (Voice Overlap) —

    William C. Wines:

    — but I don’t want to mislead Your Honor.

    Now, he was denied a certificate and he sought review by the Supreme Court of Illinois.

    Now, I find the tenure of the petitioner’s brief and argument such that I think I have to take two and a half or three minutes if necessary to explain, Your Honor, the extremely limit and restricted function of the Committee or Commissioners on Character and Fitness in — in Illinois.

    That Committee does not have anything like the judicial or quasi-judicial authority of an administrating agency of a lower court or judicial tribunal of a master and chancellory, referee or commissioner, certainly, has no such prerogatives as a jury.

    Its functions are advisory.

    Its counsel appears at the Supreme Court of Illinois as friends of the court.

    And the Supreme Court of Illinois exercises all of the faculties of Illinois sovereignty with respect to the admission to the Bar.

    We have no statutory regulation on this subject at all.

    Our only generic texts are the rules of the Court.

    The Court’s functionaries give the bar examination, collect the fees, grade the papers and anything to bar, it makes no difference what the Commissioners say.

    Their only advisory, there is no such rule that they won’t be disturbed unless they are clean — clearly erroneous or — or if their — if their substantial support in the evidence or the rule that Illinois does apply in appeals from administrative agencies.

    They will be set aside only if they’re against the manifest weight of the evidence.

    They are advisory.

    Each justice gives them the consideration that he deems the (Inaudible) but that’s not —

    Felix Frankfurter:

    Just a matter — just a matter of curiosity.

    Is this same body also the examining body?

    William C. Wines:

    Oh, no.

    Oh, no, Your Honors.

    Felix Frankfurter:

    (Voice Overlap) —

    William C. Wines:

    The — the Bar —

    Felix Frankfurter:

    (Voice Overlap) body on — on recommending admission.

    William C. Wines:

    Yes.

    They serve without compensation.

    Bar examiners are compensated.

    William C. Wines:

    It’s not the same at all.

    William J. Brennan, Jr.:

    Mr. Wines, were they sit in such large numbers on all cases?

    William C. Wines:

    Yes, every case.

    For the hearing, they sit a Subcommittee but my understanding is that all of the — their recommendations come before a — a larger — a larger Committee.

    Now, counsel —

    William J. Brennan, Jr.:

    Are — are they appointed by the Supreme Court or by the bars?

    William C. Wines:

    No, sir.

    They are — they are officers of the Bar.

    Yes, I think they are appointed by the Supreme Court but they are appointed from the membership of the Bar Association.

    Now, on this matter of warning, I will show Your Honors if — if, in just a moment, the Chief Justice gives me permission to read three passages, none a hundred — exceeding a hundred words in lengthy opinion.

    The petitioner was told not warn but told that he wouldn’t be admitted unless he answered the question but not in member of the Committee because no member of the Committee has the slightest authority to give that assurance.

    They are advisers.

    They are not like a District Judge who can say answer that question or I will send you to jail or if you’re a plaintiff, “Answer that question or I won’t send you to jail but I will dismiss your suit with prejudice.”

    They have no more authority to advice him than the — than the court reporter taking the — the transcript.

    They can only — only — the only thing any commissioner, the utmost he can do and he can’t do this without prejudging the case, is to tell the applicant what his failure to answer — what effect his failure to answer will have on the mind of that particular Commissioner, so I will concede that he not only wasn’t warned but couldn’t have been warned except in an advisory or a way by any commissioner.

    The advice might have been amicable, hostile or neutral but advice it would be warning and it could not be.

    Felix Frankfurter:

    What you — what you are saying, in my understanding, relationship of the Commissioners to the court, what you’re saying is that all — they cannot say you will be denied admission to the Bar because, as I understand on both of you, instead only the Supreme Court can do that.

    William C. Wines:

    That’s all.

    Felix Frankfurter:

    But since the Supreme Court doubtless have bound to be heavily influenced by the recommendation or the report of these permissions, I should say think that quite within their competence to say that this is serious business and it might have easily consequences.

    William C. Wines:

    Oh, but that’s what they did say in all virtual effect.

    Now, when petitioner first met with refusal for — of admission of the hands of this Committee, he sought review, it’s not an appeal.

    He sought review by the Supreme Court of Illinois of denial and the Supreme Court of Illinois handed down an opinion.

    The petitioner does print in the record, he doesn’t make it an appendix to a petition but we do in our brief.

    And that case was decided on September 23rd, 1954, the year of some importance in the case of In re Anastaplo prejudice in appendix in full to our blue covered brief.

    And here is what the Supreme Court told him, not a commissioner or advisory but told him on September — on September 23rd, 1954, I know take advantage of the Chief Justice’s leave to rerun short extra.

    Hugo L. Black:

    What page is that?

    William C. Wines:

    From page — I’m reading it from page 14 of our brief and it also appears in the — in the appendix and in the record.

    “Under any hypothesis, therefore, questions as to membership in the Communist Party or known subversive front organizations were relevant to the inquiry into petitioner’s fitness for admission to the Bar.

    His refusal to answer questions has prevented the Committee from inquiring fully into his general fitness and good citizenship and just applies their refusal to issue a certificate.”

    I’ll get to the question of the constitutionality of that, Your Honors, in due time but there is no doubt as to its clarity.

    William C. Wines:

    He was told on September 23rd, 1954 that so far as the Supreme Court of Illinois was concerned, he would not be admitted until he answered questions about his memberships and affiliations, it’s not one word about his views, opinions or beliefs.

    Now, I mentioned only for the purposes of coherence of the narrative and to show petitioner’s attitude and without implying any intimation on the part of Your Honors.

    Petitioner sought what was denied certiorari.

    I don’t suggest that that imports Your Honors’ adjudication.

    I simply want to show that petitioner has exhausted such as we mentioned it in the prisoners case to show what majors he has taken.

    After this case —

    Felix Frankfurter:

    Well, in the prisoners case is important —

    William C. Wines:

    What?

    Felix Frankfurter:

    In the prisoners case is the importance of fact.

    William C. Wines:

    It’s of no importance in this case.

    I — and I — and I don’t suggest that it is.

    Now, after Your Honors have decided the Schware and Konigsberg cases, petitioner again sought a certificate from the Illinois Committee on Character and Fitness was again —

    Hugo L. Black:

    This statement was made before that if you will read it.

    William C. Wines:

    Oh, oh, yes.

    The first — the first In re Anastaplo was in 1954.

    Your Honors decided the Konigsberg case in 1957.

    After that decision, petitioner again sought a certificate from the Committee was again denied.

    Again, presented the matter to the Supreme Court.

    And that Supreme Court entered an order which is quoted in full on pages 15 and 16 of our blue covered brief remitting the case.”

    We can’t really say remanding because there was no judgment to be appealed but remitting the case to the Committee for further consideration in the light of Schware, Konigsberg and the order.

    That order does say the principle question presented by the petition for rehearing concerns a significant simply applicant’s reviews as to the overthrow of the Government by force in the light of Konigsberg and Yates and so on.

    We are of the opinion that the Committee should have allowed the petition for rehearing and heard evidence on these matters and the Committee has requested to do so and to report the evidence and its conclusions.”

    Now, petitioner again steadfastly declined the answer of these questions.

    Now, I want to make a difference, which I know was already apparent to every member of the Court.

    I want the Court to know that I recognize this, between questions as to membership or affiliations in any kind of an organization and questions as to views, opinions or beliefs of any kind, membership or affiliation maybe secret in the sense that it’s kept, cleansed, surreptitious, but it requires some kind of communication can never be wholly private or completely undisclosed, either requires an oral utterance, say a — a writing of some kind or such manual or semi forces raising a hand of taking oath of admission to the Bar of this Court or in salute to a fastest governmental or standing with the head bowed or bowing of the knee or some kind of overactivity and communication so there is no privacy in the absolute sense.

    In the sense that this Court has said, “Belief in its nature is absolute” though there maybe secrecy about memberships or affiliations.

    Now, after further hearings, the Subcommittee by a vote of, I think, 16-to-11 again vote not to grant — to deny, if I say it that way, a certificate of character and fitness.

    I have to mention only for the purpose of pointing out to complete irrelevance to two members of the Committee did ask the petitioner whether he had such religious prepossessions, convictions or lack of convictions as what either inhibiting from taking an oath or relieve him from any sense of obligation.

    One of those Commissioners since after looking up the law decided that the question was improper the third — the other Commissioner still as of the opinion that the question was proper but he’s the only one, no member of the Supreme Court says it is.

    Now, the other Commissioner say it is and the Attorney General wants to make it very clear that in the Illinois, you can always take an affirmation if you have the pains and penalties of perjury, if you have some scruples against taking an oath.

    William C. Wines:

    So the question of any inquiry into petitioner’s religious beliefs is just not in this record at all.

    I mean this —

    William J. Brennan, Jr.:

    Before you go on Mr. — may I ask, suppose the vote has been the other way around, 16 favorable and 11 against granting a certificate, would he have had a certificate then without — could there been a review so-called in the Supreme Court?

    William C. Wines:

    I’m quite sure the minority could have requested a review but I know of no case for a minority has done so and in fact, I knew of no other cases.

    William J. Brennan, Jr.:

    Well, does it take some proceeding by the minority?

    Does or does the Court itself take some step?

    William C. Wines:

    No, no, the Court wouldn’t take any step on it if — if nobody ask it to maybe to a stranger for the record a member of the Bar could go in and say, “Look, it appears that a man is being admitted here who’s a counterfeiter or something in that sort”.

    But ordinarily, these hearings before the Character and Fitness Committee are brief and they do not result in any debates of any kind.

    William J. Brennan, Jr.:

    But in — but in this very case, do I correctly understand that a favorable vote of the Committee would have met the issue of the certificate?

    William C. Wines:

    No, sir, Your Honor, I can’t say that it would.

    I say that the probability — I — no — I don’t know.

    It wouldn’t have automatically, no.

    Not automatically, no.

    Felix Frankfurter:

    Justice Brennan’s question is (Inaudible) your last statement, your answer there left us even confuse.

    I understood you without this erroneous — I mean conclude quick a conclusion that this isn’t advisory body that does not in and of itself issues certificate of admission because a fellow has to have some piece of paper, doesn’t he?

    William C. Wines:

    Yes.

    Felix Frankfurter:

    And —

    William C. Wines:

    It does —

    Felix Frankfurter:

    — concrete question that evidently you’re not sure about it, are you?

    William C. Wines:

    Oh, I’m sure.

    Felix Frankfurter:

    They issued a certificate (Voice Overlap) —

    William C. Wines:

    Yes, they do.

    Felix Frankfurter:

    (Voice Overlap) —

    William C. Wines:

    Whatever — anything that I’ve said that in the —

    Felix Frankfurter:

    — unbelievably or it must have come from the Supreme Court however automatically or informed.

    William C. Wines:

    If I have inadvertently mislead, Your Honors —

    Felix Frankfurter:

    But it isn’t relevant.

    William C. Wines:

    — I would like to correct and tell Your Honors what happens because I am much more anxious to be correctly understood than anything else in this case.

    There is a piece of paper that is normally given by the Committee sent to the clerk.

    I don’t even remember whether the application —

    Felix Frankfurter:

    Yes signed by the Chief Justice that the —

    William C. Wines:

    No, Your Honor, by the Committee, not by just any member of the Court.

    Felix Frankfurter:

    Well, then they do have power of admission.

    William C. Wines:

    No, Your Honor.

    Felix Frankfurter:

    As I —

    William C. Wines:

    No, Your Honor.

    Felix Frankfurter:

    — understand it.

    William C. Wines:

    I — no, Your Honor.

    I have not said so.

    I have said that they issue the paper but I have not said that the paper carries with it the consequence of admission.

    Hugo L. Black:

    What happens to it?

    William C. Wines:

    Normally, it goes to the clerk.

    Hugo L. Black:

    What does he do with it?

    William C. Wines:

    Makes a record of it and I’m sure that a —

    Hugo L. Black:

    Did he put the — the name on the record of lawyers then?

    William C. Wines:

    No, not until the class comes down.

    Hugo L. Black:

    The class comes down.

    William C. Wines:

    The class of all those who were to be admitted to the Bar and appear it used to be in the Supreme Court room.

    The room is now not large enough.

    They go across the street to a building that we call the Centennial Building.

    A motion is made for their admission.

    Felix Frankfurter:

    Who presided that meeting?

    William C. Wines:

    All of the members of the Court (Inaudible).

    Felix Frankfurter:

    And it’s the Court that does it.

    (Voice Overlap) —

    William C. Wines:

    It’s the Court that admits to the Bar.

    Felix Frankfurter:

    Alright.

    William C. Wines:

    If Your Honor please, I’d like to explain.

    Hugo L. Black:

    Have you ever known —

    William C. Wines:

    The certificate of — I’m sorry.

    Hugo L. Black:

    Do you ever known them to turn one down?

    William C. Wines:

    Yes.

    Hugo L. Black:

    How many?

    William C. Wines:

    Thay —

    Hugo L. Black:

    Who was it?

    William C. Wines:

    — turned down the application of a man who admitted that he was at one time a Communist and now says that he is degenerated.

    William J. Brennan, Jr.:

    Now, who turned him down, the Supreme Court?

    William C. Wines:

    The Supreme Court of Illinois.

    William J. Brennan, Jr.:

    After the Subcommittee had given them a favorable report?

    William C. Wines:

    After the Committee had given him an unfavorable report.

    William J. Brennan, Jr.:

    (Voice Overlap) —

    Hugo L. Black:

    Oh, we’re talking about favorable.

    I was

    William J. Brennan, Jr.:

    Favorable.

    Hugo L. Black:

    — talking about favorable.

    William C. Wines:

    I knew of no case in which the Supreme Court has either refused or been asked by anyone including a stranger to the proceedings such as a citizen or a taxpayer or even a lunatic.

    I know of no case, but I don’t say there hasn’t been one, where anyone has ever gone to the Court and objected to the admission to the Bar of a person who had received a favorable report.

    But I do know this and I can assure Your Honors that no person — that the — that the Committee has no more authority to admit a person to the Bar of Illinois.

    And —

    Hugo L. Black:

    Well, I’m more interested in what happens than I am in your conclusion as to what it had.

    William C. Wines:

    It doesn’t have conclusion, Your Honor.

    Hugo L. Black:

    Do I understand that when this Committee makes a favorable report, the names of those are declared?

    William C. Wines:

    They do.

    Hugo L. Black:

    That is the practice.

    William C. Wines:

    That is the practice.

    Hugo L. Black:

    Then the practice is that it is at many States, I assume, to go and introduce them to the Supreme Court.

    William C. Wines:

    They appear in a large body.

    Hugo L. Black:

    There — has there ever been any objection that you know of, the Court has — where the Court has refused after the Committee has reported favorably to admit the man to the Bar?

    William C. Wines:

    I can answer that unequivocally, not that I know of, no.

    Hugo L. Black:

    And what do the — what rules have you printed which — which shows, not what you say is the authority, but which shows what the Court — what is required of the lawyers who admitted, is that in statute or in the rule?

    William C. Wines:

    That’s entirely in the rules of court.

    Hugo L. Black:

    Are they printed?

    William C. Wines:

    They are printed.

    Hugo L. Black:

    Where?

    William C. Wines:

    Well, I think they’re in the petition for certiorari.

    I see what Mr. Anastaplo’s kindness that they are at page 7 of the brief on the merits.

    Hugo L. Black:

    Who’s brief on the merits?

    William C. Wines:

    Mr. Anastaplo’s.

    Hugo L. Black:

    Is that the way your — when a man graduates at the University of Illinois, do you have a special rule that as to his admission?

    William C. Wines:

    No, sir, he takes exactly the same examination and goes through exactly the same process as if he had graduated from any other law school in the country that’s accredited or had studied in an office which is still permissible under the Illinois rule and sometimes definite.

    Earl Warren:

    Mr. Wines, may I ask you?

    After the Committee has filed — filed these — these papers with the clerk, is there any procedure whereby the Court reviews those reports or those documents or is it — is it just a pro forma manner?

    William C. Wines:

    You mean in the ordinary case?

    Earl Warren:

    In — in the ordinary sense.

    William C. Wines:

    In the ordinary case, there is no specific review by the Court or any member thereof of the papers of any applicant so far as I know and I think I would know if there were.

    Felix Frankfurter:

    Are — you’re saying in effect that as to favorable action by this Committee, he passed his examination, is that a written examination?

    William C. Wines:

    No, it’s entirely — you mean the bar examination?

    Felix Frankfurter:

    Bar examination.

    William C. Wines:

    It’s entirely written.

    Felix Frankfurter:

    Before he gets to the Committee on Character, as we call it, I don’t know what they call it in New York.

    William C. Wines:

    Character and Fitness, Your Honor, there is a difference.

    Felix Frankfurter:

    He passed the bar examination, then he goes before the Committee on Character (Inaudible) Committee in New York —

    William C. Wines:

    Yes.

    Felix Frankfurter:

    — is that right?

    This Committee of yours.

    William C. Wines:

    Yes.

    Felix Frankfurter:

    If they pass on it favorably, then the practice thereafter is substantially like the practice that you have often witnessed in this Court when we admit of mass recommendation by John (Voice Overlap) —

    William C. Wines:

    Exactly.

    Hugo L. Black:

    Now, let me ask you what this section means.

    There are three on page 7.

    Hugo L. Black:

    If the Committee is — is that or the talking there about the very committee you’re talking about here?

    If the Committee as of the opinion that the —

    William C. Wines:

    Yes.

    Hugo L. Black:

    — applicant is of approved character and moral fitness, what committee are they talking about?

    William C. Wines:

    The — this Committee on Character and Fitness.

    Hugo L. Black:

    If they’re up of the opinion, if the applicant is of approved character and moral fitness, it’s so — so certified to the Board of Law Examiners and the applicants shall thereafter be entitled to the admission to the Bar.

    William C. Wines:

    Yes, sir.

    Hugo L. Black:

    Has there anything — any other rules that says anything different to that?

    William C. Wines:

    Not that I know of, no.

    Hugo L. Black:

    Is there any statute that says —

    William C. Wines:

    There is no statute on the subject at all.

    The Supreme Court —

    Hugo L. Black:

    So that so far as the rules or regulations of the statutes are concerned, this is binding.

    William C. Wines:

    No.

    Hugo L. Black:

    No — there’s nothing else that — is — is there anything in writing, I’m not talking about what you say now but anything else, is there anything in writing anywhere that says, “This is not the law?”

    William C. Wines:

    Yes.

    Hugo L. Black:

    Where?

    William C. Wines:

    The opinion in the case of In re Anastaplo decided in 1954.

    Hugo L. Black:

    But he was denied admission.

    William C. Wines:

    He was denied admission.

    Hugo L. Black:

    I’m talking about whether he report favorably.

    And it — they say that they shall thereafter be admitted.

    As I understand you, you say that there has never yet been rejection by the Court after the Committee had reported (Voice Overlap) —

    William C. Wines:

    None that I know of.

    Tom C. Clark:

    You said he’d be entitled to admission.

    Felix Frankfurter:

    Does he say he will be admitted?

    Tom C. Clark:

    (Inaudible)

    William C. Wines:

    It says that he shall be entitled to admission to the Bar.

    Hugo L. Black:

    What do you understand “entitled” to mean?

    William C. Wines:

    I understand —

    Hugo L. Black:

    Has there been any definition that says that it means anything that it’s different to what it always means?

    William C. Wines:

    None that I know of.

    Felix Frankfurter:

    But he has to go before the Court to be formally admitted.

    William C. Wines:

    He does, he does.

    And I am quite certain that a minority of the Committee could elicit a consideration by the Court if they wanted to no matter what the rule says, though I know of no case where it’s happened.

    Hugo L. Black:

    You have no authority further?

    William C. Wines:

    No.None.

    Felix Frankfurter:

    But the rule is inconsistent with it.

    William C. Wines:

    It is not.

    Felix Frankfurter:

    If people — if an admission is new where you’re standing, someone (Inaudible) member of this Court could suggest to the Chief Justice that he would like to have that admission postpone until he had a chance to state reasons for asking for such performance.

    William C. Wines:

    I should certain —

    Felix Frankfurter:

    And there is statute and nothing in print but it’s inherent in the process of admission.

    Hugo L. Black:

    Do we have any rule like this one that you know anything about?

    William C. Wines:

    I don’t know, Your Honor.

    I — I don’t have in mind the text of Your — of Your Honors (Voice Overlap) —

    Hugo L. Black:

    Are you familiar with the rule and number of State where they permit the lawyers to go to the university of the State to be admitted?

    William C. Wines:

    I know that there are some States where that dispenses with bar exam — I mean I understand that there are some States were that dispenses with bar examinations.

    I do not know whether any of those States also dispense where they a — an inquiring into character, I’m not informed on the subject as to any State in the (Voice Overlap) —

    Hugo L. Black:

    Have you any provision to test the character?

    I’m talking about the original provision.

    I’m not talking about what you think might be correct?

    William C. Wines:

    Yes.

    Hugo L. Black:

    Any — any provision to test the character except this way of testing by the Committee.

    William C. Wines:

    Yes, yes.

    Hugo L. Black:

    (Voice Overlap) What other way is there?

    William C. Wines:

    Well, when you — you have to file a written application and you are supposed to have the endorsement of three members of the Bar of Illinois.

    I have frequently — every class, some young lawyer asks me to give him such an endorsement and that’s how I happened to know about it.

    And there are some questions on that, I think, as to when he was born and to list his occupations.

    I know Mr. Anastaplo can tell you better than I and I’m sure he will tell you reliably.

    There is this blank but so far as it — so far as they’re being any questions on there about whether he is a member of a subversive organization, there are not and I do know when I was admitted to the Bar which was in 1932.

    William C. Wines:

    Every applicant was asked if he’d ever been arrest — when asked anything about communism in 1932 but he was asked, if he had ever been arrested for a crime and I was asked that question and I had to tell them the true case of mistaken identity for I was on my way home.

    I’m in a hurry.

    I was arrested for a burglary and they ask me [Laughs] not a word about communism but a lot about burglary.

    Hugo L. Black:

    You were lucky [Laughter] — you were lucky [Laughter] burglary.

    William C. Wines:

    [Laughs] And — and I — I —

    Felix Frankfurter:

    After they saw you they were sure that that must have been a misidentification.

    William C. Wines:

    Well, they — they reached that — they reached that conclusion [Laughter] and I — and I was — I was admitted to the — I was admitted to the Bar and I’m — I still am.

    Now —

    Felix Frankfurter:

    At all events, Mr. Wines, in this case, we haven’t got the case of a man who was favorably reported by the Committee and then something (Voice Overlap) —

    William C. Wines:

    No, Your Honor.

    Felix Frankfurter:

    You’ve got a case where he was denied the recommendation —

    William C. Wines:

    That’s right.

    Felix Frankfurter:

    — requisite for subsequent consideration, is that right?

    William C. Wines:

    Yes.

    Felix Frankfurter:

    So why don’t we go under that?

    Hugo L. Black:

    Well, if you’re assuming now that Justice Frankfurter asking you is that ends it, I think you better argue on it.

    William C. Wines:

    Well, I intend —

    Hugo L. Black:

    Oh, I understood him to say what we have is a case where under — the man applied and the Court could have gone further but didn’t.

    Now, if you are assuming that that answers that question, I’d rather you would point to something which shows that to be the law of Illinois.

    William C. Wines:

    I didn’t understanding to ask me a question of law.

    He asked me — maybe misunderstood him.

    I understood him to ask me whether this was not the case of a man who had been denied the certificate by this Committee —

    Hugo L. Black:

    (Voice Overlap) —

    William C. Wines:

    — and it is such a case.

    Hugo L. Black:

    But — but involved in that, arises the question whether your rule that says that he should be admitted if he has passed it.

    Whether that means that that entitled him to admission, whether the Committee really has the final say so with — on those points.

    Felix Frankfurter:

    I assume the Committee doesn’t.

    I assumed that justice in this Court that we have no committee wherein people are moved.

    What I will say admissions will be granted only upon oral motion by a member of the Bar in open court and upon the assurance the he is satisfied that the applicant posses with the necessarily qualification.

    It’s new to me that automatically, this Court, speaking through the Chief Justice, wouldn’t be entitled to say “Well, we consider Mr. Jones’ case in the meantime and — and decide next Monday whether we’ll admit him.”

    Felix Frankfurter:

    I didn’t suppose that the motion of the member of the Bar standing where you are standing automatically that if we could get a mandamus against this Court, that he could get a mandamus make admitted.

    I —

    Hugo L. Black:

    May I say I —

    Felix Frankfurter:

    — can say we have to follow.

    Hugo L. Black:

    — I didn’t know until it’s just now suggested that we’ve got to construe the rule of Illinois by what ours requires because it’s written in an entirely different language.

    Felix Frankfurter:

    As I —

    Hugo L. Black:

    I would prefer for you rather than to take it for granted that it can be decided by a man’s statement from the bench what is the law in Illinois and — and cite it in writing.

    William C. Wines:

    I don’t understand, Your Honor.

    Hugo L. Black:

    You can’t do it, can you?

    Felix Frankfurter:

    Rules of (Voice Overlap) —

    William C. Wines:

    I — I —

    Felix Frankfurter:

    — usually are not in writing.

    William C. Wines:

    — I don’t understand what it is Your Honor wants.

    I mean if —

    Hugo L. Black:

    I want to see where you have anything in Illinois that says this rule doesn’t mean what it says.

    William C. Wines:

    Oh, that I can answer.

    We do not have.

    I didn’t understand Your Honors.

    Hugo L. Black:

    That’s what I —

    William C. Wines:

    Alright, Your Honor.

    Hugo L. Black:

    You’re not depending on construing that rule about what our rule requires an entirely different (Inaudible), are you?

    I — I won’t ask you that question.

    I withdraw this.

    William C. Wines:

    Your Honors, it’s awfully difficult for me to tell Your Honors what Your Honors mean by your rule governing admission to the Bar or this Court when I haven’t studied or thought of the question until this — this afternoon.

    I do say the petitioner does not state the constitutionality of this rule and that I do know from the practice of the Court and from the case of In re Debs which is cited in our brief and is very important.

    Hugo L. Black:

    What case is that?

    William C. Wines:

    In re Debs.

    The Supreme Court of Illinois has held that the admission of lawyers to the Bar or under the Constitution is a function of the Supreme Court alone and that the legislature cannot do it.

    It’s a function of the Court.

    Hugo L. Black:

    You said that cited in your brief?

    William C. Wines:

    Yes, it is, Your Honor, in the footnote.

    Hugo L. Black:

    I — I didn’t find it in there but it’s alright.

    If any trouble — don’t — I’ll — I’ll (Inaudible)

    William C. Wines:

    It’s cited in the footnote on page 17, Your Honor.

    But the question that’s presented and the only question that’s presented by this case is whether, I should like to read the language of the opinion that is appealed from now that presents the only question that we think is — arises on this record.

    And I am reading that from page 17 of this brief.

    The majority of the Supreme Court of Illinois said and I quote, “The petitioner’s,” beginning the quote —

    Potter Stewart:

    What page are you on?

    William C. Wines:

    17.

    Potter Stewart:

    Thank you.

    William C. Wines:

    “Refusal to answer questions as the petitioner’s membership in the Communist Party,” I should say that’s Communist Party and others subversive organizations, “has prevented the Committee from inquiring fully into his general fitness and good citizenship and justifies their refusal to issue a certificate.”

    In other words, the only ground that the Supreme Court ultimately gave for refusing petitioner’s admission was that he declined to answer questions as to his possible membership in subversive organizations.

    And the question is whether Illinois may constitutionally require an applicant to answer such a question.

    Now, petitioner seems to disclaim in his oral argument any contention that actual membership in the Communist Party or other subversive organization, even if proved or admitted, would disqualify him.

    But in his brief, he seems to make that contention because he says that even — that the Communist Party and the Ku Klux Klan are entitled to the protection of the Constitution.

    I don’t know what he means by that.

    But it seems to indicate that even admitted membership in those organizations wouldn’t disqualify him.

    However, in our brief we do argue.

    First, that membership in the Communist Party, if I may explain, word per se be a valid ground for disqualifying petitioner from admission to the Bar.

    We think it suffices to cite Your Honors’ decision in the Dennis case holding that membership, which I entered, of its criminal purposes in that Party is a federal felony.

    We also point out that although the Communist Party doesn’t, so far as I know at the moment, profess any anti-racial discriminations, the Silver Shirts and the Ku Klux Klan do.

    They have racial defamation and vilification for one of their objectives.

    And Illinois punishes racial defamation and vilification under a statute that Your Honors held constitutional in the White Circle case, Beauharnais against Illinois.

    And we say that membership that — in an organization, I mean always, which I entered, it has, for its object, the violation of a criminal statute of the State of Illinois is ground for disqualification from membership in the Illinois Bar.

    Also, Illinois punishes as murder not only those who actively participate in an actively plotted a killing but who belong to an organization knowing that it has murder for its object if murder results even though they neither participated in nor plotted the particular murder.

    That was held in the Haymarket riot case and while there has been much criticism of that case on the ground that the defendants may not have been proved guilty and didn’t get a fair trial.

    We know of no dissent, responsible dissent, judicial, academic or any other kind or dissents from the major premise that those who are guilty of abandon that they know has murder for its object are guilty of murder if murder results from their confederation.

    Now, the next question arises is if membership in anyone of these three organizations as a ground for disqualification, may we ask an applicant.

    I should think, Your Honor, that if we’re right that if the — an affirmative and unexplained, I want to repeat, unexplained answer would disqualify for admission, then we must have the right to ask the question.

    I do think this of — if an applicant says, “Yes, yes, I’m a member of the Communist Party.”

    William C. Wines:

    We can’t stop there.

    We have to say, “Do you have an explanation?”

    “Oh, yes, I can tell you, this is a closed hearing.

    I am an agent for the Federal Bureau of Investigation.

    They know all about my membership in the Communist Party.

    Here are my credentials.

    Yes, I am writing an exposé.

    I can tell you in confidence or a doctor’s thesis in such and such university.”

    I — maybe the Committee would then think that the man was a patriot, not a potential traitor and — or maybe the Supreme Court would so think and happily admit him.

    It’s just barely imaginable from the immigration cases or hardly in the case of one who had graduated from a law school that he might admit membership, but not in a Communist Party, at least in some other subversive organization, but convince the Committee that he was a version of any knowledge of its criminal purposes even though he did know that it held some extremely latitudinarian social views.

    Now, petitioner seems to think, and this is where I find so much difficulty in filing, that there is at stake in this case, some, maybe, principle of constitutional treatment.

    If he disclaims, as I understood him to disclaim, that as any contention that actual membership were proved to remit him in Communist Party disqualifies him.

    I would not — this means the contention that it wouldn’t disqualify him, then I don’t see much substance for the contention that we can’t ask him.

    Now, we take this position very strongly and emphatically in our brief that the rule in Illinois is that no amount of overwhelming and wholly uncontradicted proof of good character and will dispatch with simple answers to simple questions and we say that for each of two reasons.

    In the first place in any kind of judicial proceedings, saving only a question of privilege on the ground of self-incrimination and not communication between the husband and wife, attorney and client, penitent and confessing — and — and confessor, you can ask any party to any kind of a judicial or quasi-judicial proceeding any question that’s relevant.

    Now, we put the case.

    There were many cases in the laws of all the States where the personal oath as to matters of that of an applicant for a privilege is required and that’s true even though the privileges once that — one that once all constitutional requirements are met (Inaudible) is — is entitled to the protection in the Constitution of the United States.

    For example, in Illinois, if you want to vote and certainly if your vote is challenged but even if it isn’t, you have to take an oath that you’re 21 years old, that you lived in the State a year, the county 90 days, in the precinct 30 days.

    It won’t do to decline to take that oath but offer to bring in the affidavit of 50 people who know that you were born in the home where you’re now living and have lived their for 50 years.

    And if you want a marriage license, you will have to make an oath that you are not married, although ordinarily, there’s a presumption of innocence.

    You can’t just indict a man for bigamy and say “Prove that you don’t have two wives”.

    But until you take that oath, you don’t get that license.

    You can’t bring in 50 neighbors who know that you never lived with a woman as your wife, introduced her as your wife.

    Nobody ever heard you — never heard that you were married.

    There were many such cases where you have to make a personal oath.

    Now, it’s true that in Mr. Anastaplo’s case, after compiling a record of these dimensions, no member of the Supreme Court of Illinois was able to reach an affirmative conclusion that Mr. Anastaplo is a Communist.

    Certainly, the Attorney General doesn’t think he is.

    We know we’re almost sure he’s not on all three a Communist or fascist and a member of the Silver Shirts.

    It’d be most remarkable if he were.

    But do we have to compile such a record every time an applicant chooses, without (Inaudible) saving any reason for it that it will embarrass him, that it would be misunderstood, that it will incriminate him even if it isn’t a privilege, there might be some good reason where a person wouldn’t care to answer.

    William C. Wines:

    I can’t think of one but there might be.

    But when he gives no reason why do we have to have a hearing and — and to compile transcript of these dimensions.

    I do think that an applicant can walk into the clerk’s office here and say, “I want to be admitted to the Bar.”

    Well, have you ever been disbarred in your own State?”

    “Well, I won’t tell you but I’ve got affidavits of a lot of people who think that I haven’t been and have no — they have no reason to believe that I have and would probably know if I were.”

    We say that once you granted it that the — that the matter of Communist affiliation is material, then it follows automatically that a question as to whether he’s a member of the Communist Party is material.

    Petitioner suggests that we owed to substitute the presumption of innocence for the presumption of guilt in these hearings.

    Well, that’s just exactly what we do not do.

    We require an affirmative showing of good character.

    That showing is the extremely light when there isn’t anything to contradict, just as we require a man to take an oath that he’s over 21 before we’ll admit him to the Bar.

    If he isn’t over 21 and he’s granted to get admitted to the Bar anyway, he is trying to do something that is at least illegal, if not, unlawful.

    We make him take an oath.

    We don’t take his birth certificate.

    We could get a question as to whether he was 21 within the evidence but I never heard of one.

    And we ask, we do ask on our questionnaire, “Have you ever been convicted of a crime?”

    It’s easier to ask him than it is to ransack the records of every penitentiary in the United States for every applicant who comes before us.

    If we can’t ask this questionnaire, “Are you a Communist?”

    Then, there are almost no questions that we can ask.

    If, as petitioner suggests, we have to have some — some kind of probable cause, such as you need to get a search warrant or to examine books or make an arrest.

    We didn’t have it in this case.

    We did get some, I think, ambiguous writings about revolution.

    They are not per se seditious even if they were verbatim quotations from the Declaration of Independence.

    They could be in a context that would prompt a question, not a disqualification and the question was asked regarding a — a response but not billing an answer and then the question was asked about Communist affiliations and then we have any action, a refusal to —

    John M. Harlan II:

    Roughly what are the total admissions to your Bar per year?

    William C. Wines:

    I ought to know that, Your Honor.

    I can find out by a telephone call during — during the recess but it’s over a thousand.

    Potter Stewart:

    I’m not — I’m still not clear as a factual matter.

    Where are these writings first appeared?

    These —

    William C. Wines:

    I don’t even —

    Potter Stewart:

    — writings.

    William C. Wines:

    — remember.

    I don’t even — they first appear on the record.

    Potter Stewart:

    Well, what were they?

    Where are they — where are they (Voice Overlap) —

    William C. Wines:

    There was an essay on — on the right of revolution on which we make no point of the essay itself was — as — as being disqualifying —

    Potter Stewart:

    Which you say it was this writing that (Voice Overlap) —

    William C. Wines:

    — which some — which some member of the Committee had read.

    Why he read it, I do not know.

    Potter Stewart:

    Where had it been — where had it been published?

    William C. Wines:

    That, I don’t remember.

    I’ll be glad that you’ll turn to Mr. Anastaplo (Voice Overlap) —

    Potter Stewart:

    Well, it’s probably not important.

    It’s just not clear to me factually, that’s it.

    William C. Wines:

    I just don’t remember where — what publication it appeared in and we make no point that the writing itself would disqualify anybody from anything except maybe a course in literature where clarity of expression was a prerequisite to admission, but not to any — any other type of organization.

    And it prompted some questions, some natural questions and petitioner then said that it’s use were of those who wrote the Declaration of Independence, those of Abraham Lincoln, then they — but it’s the fact that he took it from the text of the Declaration of Independence.

    Certainly, it doesn’t make it seditious but neither does it sanctify it, because there isn’t any passage even from the Decalogue where the Sermon on the Mount that couldn’t in some context and I don’t say in this case, be — be the start of a war.

    Wars have been fought over just exactly those things, what’s meant by the 10 Commandments and what’s meant by the Sermon on the Mount and people have died for it and he wrote these views on revolution and he was asked some questions then, no information of any kind and what this amounts to result that petitioner has to answer the question.

    I want to dispose of one other contention.

    There is a suggestion that petitioner has denied due process of law because it doesn’t appear that we asked every applicant these questions.

    Well, it doesn’t appear that any applicant in Illinois has ever been denied admission to the Bar for failure to answer any kind of question.

    And if petitioner means to suggest that we have to ask every applicant these questions or can ask no applicant such a question and as we say in our brief, he — we think he misprices the import of the Due Process Clause because of very purpose of these hearings having the moral instead of having stereotype, mimeograph questionnaires which would save everybody time is to have the kind of give and take between applicant and members of the Committee that makes it so delightful to practice in this Court not knowing where the questions will lead us or the Court.

    And if we have to have a stereotype form of a — a quiz, we can do it.

    But we don’t think that we have to ask every applicant the same question and Your Honors held as recently as Monday that — in the case from Arkansas that there might will be circumstances in which a particular teacher indicated.

    Your Honors didn’t hold that intimated, that there might well be circumstances under which a particular teacher might have to list every organization in which he or she was a member.

    And we are in vain.

    We — we usually think in an Equal Protection Clause that equal protection results when — when equally or similarly circumstanced persons or classes are treated dissimilarly, but you can just as readily have denial of equal protection when unequally or differently circumstanced people are treated equally.

    And I think that that is a very important consideration that should guide the Court in the consummation, in its deliberations found in this case.

    Earl Warren:

    Mr. Anastaplo — oh, pardon me.

    You had finished, had you Mr. —

    William C. Wines:

    I had, yes.

    Earl Warren:

    Yes, I thought so.

    William C. Wines:

    Except for thanking, Your Honors.

    Earl Warren:

    Mr. Anastaplo.

    George Anastaplo:

    I think I can finish the next few minutes.

    As of the service point —

    William J. Brennan, Jr.:

    Excuse me, Mr. Anastaplo, where was that original statement?

    George Anastaplo:

    Yes, sir.

    William J. Brennan, Jr.:

    I notice you said it was a counterpart of what it appeared in —

    George Anastaplo:

    Yes, it was —

    William J. Brennan, Jr.:

    — the file.

    George Anastaplo:

    — the original application.

    William J. Brennan, Jr.:

    Yes.

    George Anastaplo:

    It is reprinted on page 15 of our reply brief.

    William J. Brennan, Jr.:

    Where — where is it from?

    Is that —

    George Anastaplo:

    It’s from the record of the original case.

    William J. Brennan, Jr.:

    No, no.

    No, I didn’t mean that.

    Was this published in some periodical (Voice Overlap) —

    George Anastaplo:

    No, sir.

    I — so far as I remember, I had never published anything prior to this occasion.

    William J. Brennan, Jr.:

    Well, do you — Mr. Wines suggested that some member of the Committee have come upon it somewhere.

    George Anastaplo:

    I’m sorry, Mr. Wines is simply incorrect.

    William J. Brennan, Jr.:

    I see.

    George Anastaplo:

    I mean he had a mistaken impression of what happened in that situation.

    Felix Frankfurter:

    So how — how did they come into life?

    What’s — when did you — as I understood you, in answer to Justice Brennan’s question, this was something you submitted to the Committee of Inquiry, is that right?

    George Anastaplo:

    Yes, sir, in September 1950.

    Felix Frankfurter:

    And at what stage of the inquiry was that submission?

    George Anastaplo:

    September 1950, before the first hearing.

    Before the —

    Felix Frankfurter:

    So therefore, a member of the Committee would have seen it before they saw you.

    George Anastaplo:

    Yes, sir.

    Felix Frankfurter:

    Alright.

    George Anastaplo:

    They could have seen that but there is nothing published that I know of.

    Felix Frankfurter:

    No, no.

    But they —

    George Anastaplo:

    Yes.

    Felix Frankfurter:

    — thought this piece of writing before —

    George Anastaplo:

    It is —

    Felix Frankfurter:

    — before you were questioned, is that right?

    George Anastaplo:

    Sir, it’s — that’s the — the only writing they could have seen and — but I should all frankly say I have never thought the case started that way.

    Tom C. Clark:

    Was it presented to the question in the questionnaire and not derived?

    George Anastaplo:

    Yes, sir.

    The question in the questionnaire is, “State what you consider to be the principles underlying the Constitution of United States.”

    But I must frankly say, I don’t think this was really the basis of the inquiry.

    I mean I’m quite willing to accept the Attorney General’s characterization of this — the basis, but I don’t think it would be fair for me to let it rest it there.

    I think the basis of the inquiry was my — my first answer to the question, “Do you think a member of the Communist Party should be permitted to practice?”

    I still think so.

    I think this is the case of the member of the Ku Klux Klan.

    I — if were a member of the Committee, I would be inclined to vote for either one knowing nothing else about them, if — this was the only evidence against them.

    But if the Attorney General must point to something, this is the only thing he pointed to.

    The next thing I can point out is that on a service point, this was raised in the Attorney General’s brief.

    I have answered it at length in my reply brief.

    I need to only point to page 4 of my reply brief which I quote, “I had written to the clerk my present plans or to file to the clerk of the Supreme Court of Illinois my present plans where to file my petitioner for writ of certiorari in the next week or so.

    I would appreciate learning from you whether the Court has authorized anyone to receive service for it in this matter.”

    The clerk replied to me, “As far as this office is informed, the Court has not authorized anyone to receive service.

    It would be my suggestion, however, to make service in Richard H. Cain in this matter who happened to be the Secretary of the Committee.”

    I do not rest to that.

    George Anastaplo:

    I served the Committee, Chairman of the Committee, Secretary of the Committee, Chief Justices of the State of Illinois and the clerk of the Supreme Court of Illinois.

    And I also indicated to each of them that I was serving the others and no others.

    They had no grounds for suggesting the Attorney General of Illinois had not been served.

    I mean for assuming that’s turned down or had been served, they knew and I had made all — as you will see there in my reply brief, I had exhausted my efforts to file whom to serve.

    The next point —

    Tom C. Clark:

    (Voice Overlap) think he was just trying to explain why he didn’t file an answer.

    George Anastaplo:

    Yes, I —

    Tom C. Clark:

    (Inaudible)

    William J. Brennan, Jr.:

    (Voice Overlap)

    George Anastaplo:

    Well —

    William J. Brennan, Jr.:

    — may take the time on this point.

    George Anastaplo:

    Yes, thank you.

    William J. Brennan, Jr.:

    (Inaudible)

    George Anastaplo:

    The next point I’d like to point out is that the — as to the effect of the 1954 opinion, it may well be, as Mr. Wines points out.

    On the other hand, we have Judge Schaefer’s — we have Judge Schaefer’s and Judge Davis’ characterization of that opinion and they say, which I quote in my reply brief —

    Earl Warren:

    We’ll recess now, Mr. Anastaplo.