In re Stolar/Dissent Blackmun

by Harry Blackmun

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.

This case, also argued here for the second time, presents another instance of a well-educated (academic degree from the University of Rochester; law degree from New York University) and obviously able young person who seeks admission to the Bar, but, to an extent at least, upon his won terms. His case is made the more acute and appealing because he already has been admitted to practice in the State of New York but now finds himself thwarted in a like endeavor in Ohio. The decisions in Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961), and In re Anastaplo, 366 U.S. 82 81 S.Ct. 978, 6 L.Ed.2d 135 (1961), are again challenged.

The plurality opinion has set forth the pertinent questions asked of Martin Robert Stolar, when he sought admission to the New York Bar in 1968, and Stolar's answers to those questions. At that time he was willing to go so far as specifically to profess even his belief in the principles underlying the form of government of the United States and his loyalty to that government, and also, just as specifically, to go so far as to deny that he was, or ever had been, a member of any party or organization pledged to effect changes in the form of our government or engaged in advancing the interest of a foreign country. The propriety of these very questions, which Stolar answered apparently without hesitation in New York in 1968, was seriously questioned subsequently in Law Students Civil Rights Research Council v. Wadmond, 299 F.Supp. 117, 130 (S.D.N.Y.1969), now affirmed, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749.

In 1969, in Ohio, Stolar apparently again had no hesitation in professing at oral interview that he was not, and never had been, a member of the Communist Party. But, although the one seems to include the other, he flatly refused, on stated Fifth Amendment grounds, to say (Question 12(g)) whether he was or had been a member of any organization which advocates the overthrow of the Government of the United States by force. He also refused, on Fifth Amendment grounds, to list (Questions 13 and 7) organizations of which he was or had been a member.

I may assume, for present purposes. that the general and broadly phrased list-your-organizations inquiries, that is, Questions 13 and 7, are improper and impermissible under the Court's holding, by another five-to-four vote, in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), despite the presence of what seems to me to be a somewhat significant difference between nontenured school teachers and about-to-be-licensed attorneys. This assumption, however, does not terminate Stolar's case, for Question 12(g), with its specific inquiry about membership in organizations advocating overthrow by force, remains to be considered.

My position with respect to a refusal to respond to a question such as Question 12(g) is set forth in my dissent in Baird v. State Bar of Arizona, 401 U.S., p. 11, 91 S.Ct., p. 708, and needs no detailed repetition here. I note only (a) the inconsistency of Stolar's willingness to respond orally and his unwillingness to respond in writing, and (b) that, here again, membership, present or past, in an organization of the kind specified, although relevant in the Bar admission context, in and of itself is not conclusive upon the issue of admission to the Bar. Ohio concedes, as Arizona did in Baird, that the significance lies in something more than mere membership.

Neither am I content with the conclusion reached in the plurality opinion that Stolar's responses to New York in 1968 should suffice for responses to Ohio in 1969. That kind of reasoning would compel one to conclude that because an applicant is admitted to the Bar of one State, he surely must be admitted to the Bar of any other State. We might reach that frontier one day on some new and as yet undeveloped constitutional concept, but I doubt whether we have reached it yet. New York's range of inquiry and her area of particular interest may very well differ from Ohio's, and each may be constitutionallly permissible. Further, an answer true in 1968 may not be true at all in 1969. Time passes and changes can take place even within a few months.

Although I readily concede that the Ohio question (just as the Arizona question in Baird) could have been better phrased, the approach of the plurality for reversal to the inquiry is, I feel, somewhat unrealistic. As in Baird, and as noted above, it is not a mere question of membership present or past. It is a question of knowing membership and of willingness to participate in the forceful destruction of government. This is the crux. To forestall inquiry at the threshold stultifies Ohio's appropriate concern as to faithful adherence to a lawyer's trust when the State is about to vest great professional and fiduciary power in those who seek entrance to the bar.

On this record, I would affirm.

Mr. Justice HARLAN, concurring in No. 49, and dissenting in Nos. 15 and 18.

In joining Mr. Justice STEWART's opinion for the Court in the Wadmond case, No. 49, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749, and Mr. Justice BLACKMUN's dissenting opinions in the Baird and Stolar cases, Nos. 15 and 18, 401 U.S. 11, 91 S.Ct. 708, 27 L.Ed.2d 640 and 401 U.S. 31, 91 S.Ct. 717, 27 L.Ed.2d 658, I am constrained to add these remarks. ^[*]

My Brother BLACK's opinion announcing the judgments of the Court in Baird and in the present case, and his dissenting opinion in the Wadmond case, could easily leave the impression that the three States involved are denying Bar admission to professionally qualified candidates solely by reason of their membership in so-called subversive organizations, irrespective of whether that membership is born of a purely philosophical cast of mind or of a specific purpose to engage in illegal action, or that these States are at least trying to discourage prospective Bar candidates from joining such organizations. In the latter respect, my Brother MARSHALL's opinion, 401 U.S, p. 185, 91 S.Ct., p. 737, seems to me to lend itself to a similar interpretation. If anything in these records could fairly be taken as pointing to either such conclusion, I would be found on the 'reversing' side of these cases. The records, however, adumbrated by the representations of the responsible lawyers who appeared for the States, in my opinion belie any such inferences. They show no more than a refusal to cerify candidates who deliberately, albeit in good faith, refuse to assist the Bar-admission authorities in their 'fitness' investigations by declining fully to answer the questionnaires.

I could hardly believe that anyone would dispute a State's right to refuse admission to the Bar to an applicant who avowed or was shown to possess a dedication to overthrowing governmental authority by force or to supplanting the rule of law by incitement to individual or group violence as the best means of attaining desired goals. One could question the efficacy or wisdom of questionnaires of the kind involved in these cases as a means of weeding out occasional misfits from the general run of Bar candidates, or criticize as unduly complicated or pervasive some aspects of such questionnaires. And one may also be understanding of the considerations which in this day and age breed lawsuits like these. But we should nonetheless take care lest the indulging of such points of view lead us into warped constitutional decision.

In my opinion the course chosen by these States cannot be said to be forbidden by the Constitution. I do not consider that the 'less drastic means' test which has been applied in some First Amendment cases, see NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307-308, 84 S.Ct. 1302, 1313-1314, 12 L.Ed.2d 325 (1964), and cases cited therein, suffices to justify this Court in assuming general oversight of state investigatory procedures relating to Bar admissions. Nor do I think that the questioning of candidates as to their beliefs in violent overthrow necessarily runs afoul of true First Amendment concerns. I do not dispute that the First Amendment, as reflected in the Fourteenth, prevents States from denying admission to candidates merely because of theoretical beliefs in the 'right' of revolution, but I do maintain that there is no constitutional barrier to denying admission to those who seek entry to the profession for the very purpose of doing away with the orderly processes of law, and that temperate inquiry into the character of their beliefs in this regard, which is all that is shown here, is a relevant and permissible course to that end. It seems to me little short of chimerical to suggest that the independence of the Bar is threatened unless this Court steps in and puts a constitutional end to such a practice. Cf. Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).

While I hope that I am no less sensitive than others on the Court to First Amendment values, I must say that the pervasive supervision over state Bar admission procedures which is now asked of us would work a most extravagant expansion of the current 'chilling effects' approach to First Amendment doctrine. Knowing something of the great importance which the New York Bar attaches to the independence of the individual lawyer, I have little doubt but that the candidates involved in Wadmond will promptly gain admission to the Bar if they straightforwardly answer the inquiries put to them without further ado. And I should be greatly surprised if the same were not true as to Mrs. Baird and Mr. Stolar in Arizona and Ohio. But if I am mistaken and it should develop that any of these candidates are excluded simply because of unorthodox or unpopular beliefs, it would then be time enough for this Court to intervene.

Notes