Echoes from a Resounding Silence

by George Anastaplo

Prepared for the Chicago Daily Law Bulletin, April 25, 2011, page 1

We celebrate this month the 50th Anniversary of the decision of the United States Supreme Court in my Illinois bar admission case. That 5-4 decision (In re George Anastaplo, 366 U.S. 82 [1961]) affirmed the 4-3 decision by the Illinois Supreme Court, which in turn had affirmed the 11-6 determination by the Character and Fitness Committee (sitting in Chicago) that I had not established my fitness for admission to the Illinois bar. (The controversy had begun in 1950, leading to similar determinations by a unanimous Committee in 1951 and by a unanimous Illinois Supreme Court in 1954, with the United States Supreme Court declining to hear my appeal the first time I applied.)

I have long been accustomed to hearing from people (including many lawyers) that they have “always admired” the stand that I took in my youth before the Character Committee by refusing to answer various loyalty-oath-type questions about possible membership in subversive organizations such as the Communist Party and the Ku Klux Klan. If such people had expressed their admiration publicly in the 1950’s, the Character Committee would probably have backed away from demands that were being made only of me.

But then, if the University of Chicago Law School faculty (who knew me much better) had been vigorous in their support of me, the Committee would probably have conducted itself otherwise. I recognized that faculty’s unbecoming failure in the Dedication for my On Trial: From Adam & Eve to O.J. Simpson (2004):

To the Memory of my Law School teachers (1948-1951) who, with a few noble exceptions, preached (and hence taught) far better than they could practice.

The commendable minority of my law school faculty who supported me included Harry Kalven, Jr., Wilber G. Katz, Malcolm P. Sharp and Hans Zeisel.

Harry Kalven collaborated with Roscoe Steffen to submit an amicus brief on my behalf to the U.S. Supreme Court. Mr. Kalven spoke movingly, in his book, A Worthy Tradition: Freedom of Speech in America (1988), of Justice Black’s Dissenting Opinion in my case, concluding with this observation (p. 574): “In the end what is moving about Justice Black’s dissent is its special generosity toward Anastaplo personally. He comes very close to embodying Black’s idea of what a lawyer should be. Black quotes at length and with evident approval Anastaplo’s statements to the committee about the proper role of the bar in American democracy. Black sees him as rejected in reality because he believed too much in the principles of the Declaration of Independence. His final praise is put ironically: ‘The very most that fairly can be said against Anastaplo’s position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself.’ Thanks to the dissent of Justice Black, the Anastaplo case has in a very real sense a happy ending, although Anastaplo is still not a member of the Illinois bar. He earns the distinctive reward of being enshrined in the pages of the United States Reports in a living opinion by one of the most cherished of justices.” This was in the spirit of Justice William J. Brennan’s 1961 comment to Justice Black, “You have immortalized George Anastaplo” (as reported in the 1994 biography of Justice Black by Roger K. Newman [p. 507]).

It was evident to us, in 1961, that the Black opinion was extraordinary, including his reassuring commendation of how I had conducted myself in my oral argument before the Court in December 1960. Justice Black himself recognized the specialness of this opinion by having part of it read (with excerpts from other things) at his funeral in Washington National Cathedral (a service that two of our children, in College out East) had been able to attend. I had occasion, years later, on meeting Fred Korematsu of the notorious Japanese Relocation Case (Korematsu v. United States [1944]), to tell him that Justice Black is widely believed to have written one of his best Opinions in my bar admission case and perhaps his worst in his relocation case. “Unfortunately,” I added, “the one he wrote about you was for the majority, while the one he wrote about me was in dissent.” (It was noticed by the Solicitor General, during the April 18, 1972 memorial service for Justice Black in the U.S. Supreme Court that “his stirring dissent in Anastaplo . . . led to a long exchange of letters with the unsuccessful petitioner…” [405 U.S. xxviii] Thus, the Justice wrote me in 1969, upon receiving a copy of one of my writings, “Maybe there is no need for you to do so, but I take great pride in the course you have followed since your case in Illinois and at this Court. You have acted with great dignity and have, in my judgement, established the fact that you are not destined to be the great extremist which some people thought you were sure to become. I have long thought and still believe that you have the capacity to make a highly useful citizen of this country.” [Newman, Hugo Black, p. 506])

The intimidation in the 1950s of applicants for admission to the Illinois bar was evident. Few of my classmates spoke up at the time, even though I was on good terms with them (partly because many of them had routinely had access to the detailed notes I made in our law school classes). A few law school associates did come to speak up, with Abner J. Mikva, Alexander Polikoff, and Bernard Weisberg filing an amicus brief on my behalf in the Illinois Supreme Court (in which they were joined by our distinguished Hyde Park neighbor, Leon M. Despres), who was later so bold as to proclaim me “the Socrates of Chicago.” My most determinded champion (besides members of my family) was Malcolm Sharp. Professor Sharp even went so far, years later, as to write the first letter for a Chicago Committee that insisted on nominating me annually for the Nobel Peace Prize between 1980 and 1992.

Those who always “knew better” and yet did not speak up on my behalf included not only most of my law school teachers and classmates but also various (somewhat intimidated) “left-wing” graduate students on the University of Chicago campus with whom I had often discussed the Soviet Union. I was known among them as a vigorous critic of the Stalinist regime. Indeed, I had even been known to support the United Nations response to the invasion of South Korea by the Communist regime in North Korea in June 1950, an American-led response that would have been far more sensible if it had not included a drive to the Chinese border once the invaders had been driven back across the 38th Parallel. It is likely that my championing of American freedom in our sometimes vigorous campus debates contributed to my determination to resist the assault on that freedom mounted by the Character Committee.

It was in November 1950, when anti-Communist passions in this country were quite intense, that my troubles with the bar began. Some Subcommittee members evidently liked to ask bar applicants whether they believed a member of the Communist Party should be admitted to the bar. I gave the wrong answer when I happened to be asked this question. I was then told that Communists believe in the right of revolution, to which I replied with the reminder that we all do. This prompted one of this two-member Subcommittee to demand that I should reveal whether I was myself a Communist—and that proved, when I deemed such an inquiry improper, to be the beginning of the end of my career at the bar. The twenty hours of hearings (with the full seventeen-member Committee over the years) were devoted primarily to these issues, with both the Character Committee and the Illinois Supreme Court insisting that my refusal to answer membership questions prevented a determination by them of whether I was fit to practice law. They may have been somehow correct in their assessment, at least insofar as that assessment included a judgment in effect on the character of the bar. (See, for post-1961 Character Committee explorations with respect to me, prompted by Attornies Calvin P. Sawyier and Richard James Stevens, 35 DePaul Law Review 552, 611-23 [1986], 70 Tennessee Law Review 553 n. 383 [2003]. See, also, a letter of March 5, 2010 to a Justice of the United States Supreme Court from Professor William T. Braithwaite [appended to this article].)

My career as a nay-sayer has been summed up in this memorable fashion by C. Herman Pritchett, a Past President of the American Political Science Association: “On 24 April 1961 the Supreme Court of the United States, by a vote of five to four, affirmed the action of the Illinois Supreme Court which, by a vote of four to three, had upheld the decision of the Committee on Character and Fitness of the Illinois bar, which by a vote of eleven to six, had decided that George Anastaplo was unfit for admission to the Illinois bar. This was not Anastaplo’s only such experience with power structures. In 1960 he was expelled from Soviet Russia for protesting harassment of another American, and in 1970 from the Greece of the Colonels. As W.C. Fields might have said, any man who is kicked out of Russia, Greece, and the Illinois bar can’t be all bad.” Mr. Pritchett had been a colleague at the University of Chicago of Leo Strauss, the supposed guru of contemporary “neo-cons.” Mr. Strauss wrote me, on June 22 1961, a two-sentence letter, shortly after I had sent him my 1961 Petition for Rehearing in the U.S. Supreme Court: “This is only to pay you my respects for your brave and just action. If the American Bench and Bar have any sense of shame they must come on their knees to apologize to you.” (That Petition for Rehearing, as well as many other relevant items [including a bibliography of my work], may be found at http://www.anastaplo.wordpress.com.)

I had occasion to suggest in my first book, The Constitutionalist (1971), “the major reasons why the Character Committee ruled against me” (pp 361-62): The [first such reason was] my refusal to submit to the demands of the pampered elders of the tribe. They were not used to being told publicly (even though some of them agreed privately) that a law applicant’s political affiliations were none of their business. [The second such reason] came out when one of the Committee majority was provoked to admit, in justifying his vote to troubled friends, “Anastaplo always conducted himself before our committee as if he was better than us.” This lawyer’s complaint would be reinforced in the eyes of some by the letter I was moved to write in 1965 to a distinguished member of the Chicago bar who had been in 1959 another of the Committee majority: “Our passing encounter at the [University of Chicago] Law School Alumni Dinner last night prompts me to send you the enclosed articles [I have written] and to observe that I have long considered your vote as the decisive one in the rejection by the Character Committeee in 1959 of my [revived] application for admission to the bar. I say decisive since the newly-elected President of the Chicago Bar Association was able by his example to take with him, or at least to reassure, other less eminent members of the Committee in the course they were pursuing. And, as you may recall, a switch of only three votes would have given me the majority to which I was entitled. I mention these observations not because of anything I want done about my career at this time—for I do consider myself retired from the practice of law–, but in order to remind you that both you and I know that you did not behave as you should have on that occasion. Nor would I bother to extend to you the caution and counsel implied in these words if it did not seem to many of your fellow alumni that a distinguished career awaited you.” [I do not recall receiving any reply to this 1965 letter.]

My academic career has included conducting seminars in a Great Books program for adults at the University of Chicago for almost six decades, teaching at Rosary College for a decade, and teaching for three decades at the Loyola University School of Law. A score of books have been published by me, with a few more in the works (including one recording six hundred pages of conversations with a Holocaust survivor and another providing a running commentary on our responses to the September Eleventh atrocities). (More about my career may be found in an entry in The Yale Biographical Dictionary of the Law [2009]. Still more may be found in The Constitutionalist, which includes [at pages 338-40] my account of the curious conversation I had with an Illinois Supreme Court Justice that I happened to pick up while driving a taxi-cab in Chicago in 1955, the very Justice from Peoria who had written his Court’s opinion in my case the year before. The Character Committee refused to ask for my record of that conversation, just as it refused to put into evidence the report of the investigator that it had sent to inquire about me in my home town. I said to the Justice during our taxi-cab conversation, “It’s not a question of Communism,” to which he replied, “Well, you should answer anyway. No one ever thought you were a Communist.”)

Did any of my decade-long bar admission efforts make a difference? Certainly, it would have been much better for this country if there had not been the Red Scare that contributed to our deadly follies in Vietnam. Comparable follies may often be seen today in the lack of a Sense of Proportion in the way we are responding to Terrorism, a response that is promoting among us a Culture of Cowardice. It remains to be seen whether what I have said and done (and not done) is of enduring worth for this country.

But it has long been evident, at least to me, that my bar admission experiences have been liberating and even empowering. They were, in some ways, like my experiences in the U.S. Army Air Corps during and immediately after the Second World War. I had persisted in my effort to be admitted to the Aviation Cadet program, despite being underweight and having a heart murmur. I managed to get my commission and wings (as a navigator) and to serve overseas as far west as Formosa, as far south as Liberia, and as far east as Saudi Arabia.

Thus, the Second World War was a wonderfully challenging opportunity for the son of Greek immigrants born in St. Louis (in 1925) and raised in Southern Illinois (where my father had a restaurant). I was, I confess, somewhat naïve upon first appearing before the Character Committee, never anticipating, for example, that someone still in the Air Force Reserve as I was in 1950 (and prepared to return to serve if called during the Korean War) could be denied admission to the bar in 1950-1951 by lawyers who had probably been (for the most part) too old (or too sophisticated?) to have served as I had insisted on doing between 1943 and 1947.

It should be recognized that my decade-long Illinois bar admission adventure had been largely accidental, depending as much as it did on the questions and the characters of the two-member Subcommittee I first happened to encounter in November 1950. One of them was fearful and aggressive, the other was far more decent and intelligent, but he was not man enough to resist his alarmed colleague’s insistence upon the Communist Party membership question. This came, it should be remembered, after I had defended the right of revolution as enshrined in the Declaration of Independence.

The most recent noteworthy development in my case has been that the closing sentence of Justice Black’s glorious Dissenting Opinion can serve, a half-century later, as the title of a book on the First Amendment just published by the Oxford University Press, We Must Not Be Afraid To Be Free. The overwhelming question still remains, of course, what we as citizens do with the perhaps unprecedented degree of freedom (including the right of revolution) that we have been entrusted with as a self-governing people. That freedom includes the obligation to deal firmly with abuses of such freedom, including such unseemly atrocities as the callous desecrations of military funerals that have now been improperly sanctioned (as protected by the First Amendment) by the United States Supreme Court. That freedom includes as well the duty to challenge these days improper charges of “racism,” something I was obliged to do (virtually alone) at Loyola in the 1990s, eliciting the enthusiastic commendation (in April 1997) of Professor Gerald Gunther of the Stanford Law School. (See p. xxiii of the 2005 reprint of my 1971 Constitutionalist volume.)

A two-volume festschrift, Law and Philosophy, published in my name in 1992 included a dozen poems by my wife, Sara Prince Anastaplo (the daughter of a Texas oil wildcatter). One of her poems bears on “character and fitness” issues (p. 1036): WHAT IS VIRTUE? Virtue is the prize achieved by breakneck courage./Virtue is a treasure hidden underground/Which throws the light of glory back into the sun’s rays/Past the books and cities where knowledge will be found./Such vigor is restriction but affirmation, too./Let no one teach you virtue/Who dare not die for you. The concluding poem she offered there suggests that Scholars (and not only Citizens) also may sometimes need a Sense of Proportion (p. 1045): FRAGMENT, BY A GRADUATE STUDENT’S WIFE Husband, husband, burning bright,/I’ll turn off your study light!

Appendix

[To a Member of The Supreme Court of the United States] March 5, 2010 Re: In re George Anastaplo, 366 U.S. 82 (1961) Dear Mr. Justice . . . Dissenting in 1960, Mr. Justice Black said: “[T]his record shows that Anastaplo has many of the qualities that are needed in the American Bar… It is such men… who have greatly honored the profession… men like Charles Evans Hughes, Jr., and John W. Davis,… Lord Erskine, James Otis, Clarence Darrow…. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it…. We must not be afraid to be free.” At 114, 115, 116. Permit me to suggest that it might help preserve the heritage Mr. Justice Black spoke of if the Court were to re-consider sua sponte Mr. Justice Harlan’s dictum in the majority Anastaplo opinion that the Court’s Rule 5 left “no room” for petitioner’s suggestion that he be admitted to its Bar “independently of the action Illinois might be induced to take’” (at 97, n. 20). Beyond the 1960 “record,” the judicially noticeable public record of Mr. Anastaplo’s character and citizenship, with which I believe you are personally familiar, should now be more than enough to satisfy Rule 5’s substantive requirement that “applicants’ private and professional characters shall appear to be good.” Nothing in the majority opinion’s law of the case would be disturbed, nor would any troublesome precedent be set, by the Court’s waiver, in these unique circumstances, of Rule 5’s formal requirement (applicants shall have been for three years admitted to the bar in their State). Were the Court to act favorably on this suggestion, Americans might well find themselves grateful in some future troubled time for such a nobly useful precedent. Believing that [one of your colleagues] also knows personally of Mr. Anastaplo’s character, and of the injustice done him, I take the liberty to address him a copy of this letter as well. Respectfully, William T. Braithwaite, St. John’s College, Annapolis, Maryland (Formerly a member of the Loyola University of Chicago law faculty and a partner in the Chicago law firm of Mayer, Brown & Platt)

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