Schware v. Board of Bar Examiners of New Mexico

RESPONDENT:Board of Bar Examiners of New Mexico
LOCATION:Military Stockade

DECIDED BY: Warren Court (1957-1958)

CITATION: 353 US 232 (1957)
ARGUED: Jan 14, 1957 / Jan 15, 1957
DECIDED: May 06, 1957

Facts of the case


  • Oral Argument – January 15, 1957
  • Audio Transcription for Oral Argument – January 15, 1957 in Schware v. Board of Bar Examiners of New Mexico

    Audio Transcription for Oral Argument – January 14, 1957 in Schware v. Board of Bar Examiners of New Mexico

    Earl Warren:

    Number 92, Schware versus Board of Bar Examiners of New, Mexico.

    Mr. Levy.

    Herbert Monte Levy:

    Your Honor, may it please the Court.

    I, of course, I think may not go into the broad particular questions that are presented here since this Court knows very well why I had placed the case on the calendar immediately following here in express.

    The crucial difference of course is that the Schware case involves what happens to the man after he makes answer to the inquiries which had been made of him.

    In fact, there’s one step further.

    This man never had any inquiries made of him in regard to a number of the facts which he disclosed.

    The first —

    Felix Frankfurter:

    The first agreement to the rest of the five minutes, you summarize what you can achieve the meaning of showing up this record whether this (Inaudible)

    Herbert Monte Levy:

    Because I think so, yes.

    I would say, sir, that the crucial point here is that there is really no question of burden of proof involved.

    Felix Frankfurter:

    A what?

    Herbert Monte Levy:

    There’s no question of burden of proof involved.

    The court below relied entirely upon the fact that Schware had been a member of the Communist Party from 1934 to 1940, together with what they called his former actions in the use of aliases and what they termed his record of arrest and his attitudes there are.

    This was the only point upon which they based their decision.

    Felix Frankfurter:

    1934 to 1940?

    Herbert Monte Levy:

    1934 to 1940.

    Now, Schware presented —

    Felix Frankfurter:

    It’s not uncontroversy.

    It’s not moved yet, but I — it’s the content as of the time of the inquiry, wasn’t it?

    Herbert Monte Levy:

    No, the Court itself talks in terms of past membership throughout.

    The Bar Examiners, the Board of Bar Examiners talked in terms of past membership.

    The only thing that is brought up to cast any doubt is in terms of when he left the Party with that particular 1944 letter, which is read in the 1955 context.

    I don’t know whether I should get into that particular problem now but I suppose I might as well.

    The only point that was made in —

    Felix Frankfurter:

    But it represent — assume the word to be whether he was a Communist or they have terminated his membership in 1944 rather than 1940.

    Herbert Monte Levy:

    I think that’s the most that they could assume.

    Now, I do want to point out again that there is really no controversy over the facts here or no question of burden of proof.

    Because in the petition to review the denial of Schware’s application, the statement is made that all the questions that were asked in the application length and at the first hearing were answered correctly.

    And more importantly, beginning in pages 90 through 92, a defendant board admits or rather refuses to deny any complete truthfulness and so forth in the matters that Schware testified to.

    Herbert Monte Levy:

    They say that while they cannot admit or deny the completeness and the truthfulness and so on, they have not made any claim that petitioner answered any questions in his application other than fully and accurately, nor is the respondent’s decision in the petitioner’s case based upon any such claim.

    They make the same statement again in reference to the hearing at the paragraph ending just before number seven on page 91.

    And again, on page 92, it is said very clearly at the end of paragraph number 10 that the decision of the respondent in the petitioner’s case is based upon facts disclosed by the petitioner himself.

    So that I think here we have no question of veracity, no question of burden of proof and the simple issue in the case is whether the three factors has Communist Party membership in the popular front period from 1934 to 1940, the use of aliases for the particular reasons set forth here and the mere fact that this man had been arrested without any consideration again as to whether he was guilty or innocent of crimes, whether these three factors can constitutionally be the basis for a decision barring him from taking the bar examination.

    I see that I have about 30 seconds left and I think this might be the point which the Chief Justice might want to adjourn.

    Earl Warren:


    Herbert Monte Levy:

    I hope I was —