November 1, 1955
as found in
NOTES ON THE FIRST AMENDMENT
(1971, 2005), pages 337-40
The conversation recorded below took place on November 5, 1955, thirteen months after I had failed in the Supreme Court of Illinois (in 1954) to secure a reversal of the Character Committee’s refusal (in 1951) to issue me the certification of my character and fitness required for admission to the Illinois bar (and seven months after I had failed [in 1955] to have the Illinois action reviewed by the Supreme Court of the United States).
A reconstruction of the conversation, reprinted here in its entirety, was prepared by me, on November 7 and 9, 1955, and is based on detailed notes I made on November 5, 1955, at 10:15 A.M. I swore to the accuracy of this reconstruction on February 28, 1958, before the Character Committee in the course of the rehearings conducted with respect to my application for admission to the bar. (See In re George Anastaplo, 366 U.S. 82 , Transcript of Record, pp. 38-52, 63-68.) The Chairman of the Committee marked this document on the backs of its pages, without examining its contents, with the legend, “Exhibit A for Identification, Anastaplo Hearing 2/28/58.”
The document was made available to the Committee on my condition that it merely request it of me, after I suggested (upon disclosing the principal admission as well as the occupation, but not the name, of the Passenger) that the document cast doubt (through an authoritative source) upon the good faith of the official claim of the Illinois authorities (which had just been repeated by the Committee and was to be repeated many times thereafter by both the Committee and the Supreme Court of Illinois) that they were unable to pass judgment on my fitness for admission to the bar so long as I would not assure them I was not a member of the Communist Party.
The Committee refused to run the risk of requesting the document, preferring to continue to ask me the questions about possible political affiliations which it knew that I would (on principle) refuse to answer. On the other hand, a submission of this document by me at that time, without a formal request from the Committee, might have been exploited as an impropriety by the more hostile members of the Committee. Several accounts (consistent with my reconstruction) have come back to me of the Passenger’s having related this conversation on several occasions to his colleagues and others (in public as well as in private), thereby relieving me of any obligation I might have had not to release this fifteen-year-old document on my own authority.
The original Supreme Court of Illinois opinion referred to in the conversation may be found at 3 Ill.2d 471, 121 N.E.2d 826 (1954).
The scene opens at the cab stand outside the Sherman Hotel in Chicago, Illinois, Saturday, November 5, 1955, 10 A.M. (with a passenger taking the taxi-cab next in line):
Passenger. Can you take me to Jackson and State?
Taxi-driver. Yes, sir.
Passenger. I know it is not very far
Driver. But it is a little too far to walk.
Passenger. It sure is. Besides, I’m in a hurry.
Driver. It really is a beautiful day, isn’t it?
Passenger. It’s very nice – but we had a hard drive up here the other day.
Driver. Oh, yes? Where from?
Passenger. Peoria. Next time I’m going to come up by train.
Driver. That is a good idea this time of year. You never know what kind of weather you will run into. Do you live in Peoria?
Passenger. Yes. Are you familiar with the place?
Driver. I’ve been through there – and I have friends down there and have heard a lot about it. You are in business down there?
Passenger. Yes, I’m up here for a convention.
Driver. We have a lot of them in this town
Passenger. I even had my picure in the Tribune this morning. My wife doesn’t like it very much, however.
[Passes newspaper clipping forward to driver]
Driver. Thank you. I’ll look at it at the next stop-light.
Passenger. That’s me in the upper right-hand corner.
[Newpaper photograph caption:
Illinois Supreme Court justices at bar association dinner in Sherman Hotel last night. Left to right: Front – Justice Ray I. Klingbiel, East Moline; Chief Justice Harry B. Hershey, Taylorville; Justice Ralph L. Maxwell, Nashville. Rear – Justices George W. Bristow, Paris; Walter V. Schaefer, Chicago, and Joseph E. Daily, Peoria. Justice Charles H. Davis, Rockford, was not present. (Story on page 10, part 2)]
Driver. Oh yes: Justice Daily. I thought you looked familiar.
Passenger. Oh, you drive from the Sherman Hotel regularly?
Driver. No, sir, all over the city – I am only driving weekends while I work and go to school out at the University of Chicago.
Passenger. It’s good you can do that.
Driver. But it’s not because I had seen you around the hotel that I recognized you: you see, I argued a case before your court last spring.
Passenger. You didn’t! Where?
Driver. At Springfield.
Passenger. But you’re not admitted to the bar!?
Driver. That’s the idea: I lost the case. And what’s more, you wrote the opinion.
Passenger. [Pause] What case was that?
Driver. The Anastaplo case.
Passenger. You are not Anastaplo, are you?
Driver. I most certainly am!
Passenger. Well, isn’t this something! [Pause] You applied for a new certificate?
Driver. No, sir, I applied for admission for the first time.
Passenger. I mean recently, for a new certificate of admission.
Driver. I’ve never been admitted
Passenger. But you’ve asked them to take up your case again?
Driver. Oh, I wrote the Committee recently and wondered whether they might now certify me for admission in the light of what I had heard through friends about them not requiring any more answers from me.
Passenger. Why don’t you just answer: you’re not a Communist, are you?
Driver. That’s not the point, sir.
Passenger. Well, why don’t you answer?
Driver. It’s not good for them to be encouraged to think they can ask such questions.
Passenger. I thought you were in Europe.
Driver. I was this summer, for a few months.
Passenger. You should answer and get admitted. You’re not a Communist, are you.
Driver. But, Mr. Daily, that is not the point.
Passenger. No, it’s not the point. But you should answer.
Driver. It’s not a question of Communism.
Passenger. Well, you should answer anyway. No one ever thought you were a Communist.
Driver. What corner do you want off, Mr. Daily?
Passenger. Across State Street, over there, would be all right.
Driver. That’ll be fifty-five cents, sir.
Passenger. [Tosses a dollar bill forward] We’ve discussed your case many times [unclear here:… with friends (?)]. [Leaving the cab]
Driver. You have some change, sir.
Passenger. It’s all right. You’ll be admitted some day.
Driver. I certainly hope so. Good day, sir.
Justice Daily led the four-man majority of the Illinois Supreme Court which affirmed, four years after our taxicab conversation, the new Committee report of 1959 denying again my application for admission to the Illinois bar.
18 Ill.2d 182, 163 N.E.2d 429 (1959). (The Illinois court has seven members.)
It was always difficult (to the very end) for me to predict just what the Supreme Court of Illinois would do next with me. The votes in the Supreme Court of the United States, on the other hand, were at that time all too predictable. Thus, the same members voted together on the two other bar-related cases decided the same day with mine, deciding in all three cases against the would-be lawyers, 5-to-4. See, on the Bar Admission Cases, Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (Harper and Row, 1988). See, for this Kalven assessment, www.anastaplo.wordpress.com.