Correspondence from William Braithwaite to Supreme Court Justices: In re Anastaplo

Dear Mr. Metz,

This letter, dated April 20, 2009, and two others, dated May 28, 2009 and March 5, 2010 (these two being transmitted separately), were written by me to Mr. Justice Stevens and mailed on or about the dates they bear, except the first and earliest, which I personally delivered to a security guard at the Supreme Court Building.

These letters belong, I believe, on the Anastaplo Web-site, and I authorize you to put them there.  An appropriate tag-line might be:  In re Anastaplo:  A Footnote (50 Years Later) To A Footnote [see 366 U.S. 82, 97, n. 4].

I never received a reply to any of the three letters.  It cannot be reliably inferred from this fact, however, that Justice Stevens ignored them, since I do not know with certainty that he himself even received them.  All the Justices undoubtedly get unsolicited mail, which would have to pass at least one level of staff (perhaps more) before reaching the hands of the individual addressee.  Moreover, Justice Stevens was, at the time of these letters, very near his retirement (at age 90, I believe), and it would not have been unreasonable, in light of this, for his office staff to have judged my letters as not among the matters most needing his limited time and attention.

You may, if you wish, post this transmittal message with the letters themselves, so that the caution in the preceding paragraph will be available to any site visitors who may read the letters.

William Braithwaite

____________________

William T. Braithwaite, Tutor
St. John’s College, Annapolis, Maryland 21404

The Honorable John Paul Stevens                                                              April 20, 2009
Associate Justice
Supreme Court of the United States
Washington, D. C. 20543                               Re:  In Re Anastaplo, 366 U.S. 82 (1960)

Dear Mr. Justice Stevens:

Might it serve the Court’s interests 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)?

It could reasonably be concluded that there is, now, in public records, more than enough evidence of this petitioner’s character to satisfy Rule 5’s substantive requirement that “applicants’ private and professional characters shall appear to be good.”  This judicially noticeable public record (with which I believe you are personally familiar) appears at least as reliable as what most applicants ordinarily present.

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 in their State).

Some good, for the Court and thereby also for the law, could sprout from this small effort to acknowledge publicly a wrong that the Supreme Court of Illinois, despite opportunity, has not seen fit to remedy.  In some future troubled time, Americans may find themselves grateful that today’s U.S. Supreme Court left such a nobly useful precedent among its legacies.

I submit this private suggestion wholly on my own motion, having had close to heart the issues implicated in the Anastaplo case ever since I first read it in Law School in 1961.

Respectfully,

William Braithwaite, Tutor (the only Faculty rank at St. John’s College)
(Formerly Associate Professor, Loyola Law School and partner, Mayer, Brown & Platt)

____________________

William T. Braithwaite, Tutor
St. John’s College, Annapolis, Maryland 21404

The Honorable John Paul Stevens,                                                                May 28, 2009
Associate Justice
Supreme Court of the United States
Washington, D. C. 20543                                 Re:  In Re Anastaplo, 366 U.S. 82 (1960)
Dear Mr. Justice Stevens:

The enclosed is a counterpart original of my April 20 letter to you, sent out of prudence, since no acknowledgement of its reaching your Chambers has been received by me, and I am thereby led to the supposition it might never have got there.

Respectfully,

William Braithwaite, Tutor (the only Faculty rank at St. John’s College)
(Formerly Associate Professor, Loyola Law School and partner, Mayer, Brown & Platt)

____________________

William T. Braithwaite, Tutor
St. John’s College, Annapolis, Maryland 21404

The Honorable John Paul Stevens                                                               March 5, 2010
Associate Justice
Supreme Court of the United States
Washington, D. C. 20543                               Re:  In Re Anastaplo, 366 U.S. 82 (1960)

Dear Mr. Justice Stevens:

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 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 Mr. Justice Scalia 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.

Respectfully,

William Braithwaite, Tutor
(Formerly Associate Professor, Loyola Law School and partner, Mayer, Brown & Platt)

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