Oyez, Oyez, Oyez
November 1994 | Volume 45, Issue 7
On the morning of December 8, 1969, our taxicab stopped at the main entrance of the United States Supreme Court, and my wife and I saw through the back-seat window the long sweeping steps, a portico with massive Corinthian columns, and the words EQUAL JUSTICE UNDER LAW inscribed on the sculptured pediment. My hands sweating and my kidneys pumping, I climbed out of the cab, paid the driver, and trudged up the stairs with my wife, briefcase, and butterflies. I was twenty-eight-years old; I had practiced law for only three years, and my professional experience had been so humdrum that I sometimes encountered judges who had not even gone to law school. Yet there I was walking through the bronze doors, entering the Great Hall, and heading for an appearance before the nation’s highest court.
Within the hour I was scheduled to present the controversial case of Sara Baird, Petitioner v. State Bar of Arizona, Respondent , No. 1079, to the Supreme Court. Sara was my wife, and the issues involved loyalty, Communism, freedom of belief, the First Amendment, and the practice of law.
Sara had graduated from Colorado College and Stanford University Law School and had been number one on the bar examination. Nevertheless, the Arizona State Bar Committee on Examinations and Admissions refused to license her as a lawyer. On January 14, 1969, the Arizona Supreme Court had upheld her exclusion. After losing at the Arizona Supreme Court, we took Sara’s case to the United States Supreme Court by filing a petition for a writ of certiorari. On April 7, 1969, with Chief Justice Earl Warren presiding, the Court accepted Sara’s case for review and set it for oral argument on December 8, 1969. Since thousands of cases are presented to the Supreme Court each year and only about one hundred and fifty are accepted for hearing, it was a statistical miracle that she had made it this far.
On her application form to become an Arizona lawyer, Sara had refused to answer question 27: “Are you now or have you ever been a member of the Communist Party or any organization that advocates overthrow of the United States by force or violence?” Despite her refusal, she wanted to take the lawyer’s oath of office, which is a pledge to support the Constitution. In addition, she had already revealed the names of all groups that she had belonged to since age sixteen, groups like the Girl Scouts and the Young Republicans. Still, the bar committee had demanded to know specifically whether she had ever belonged to the Communist party.
As Sara and I looked for the clerk’s office where we were supposed to check in, we were not thinking about the long history behind this battle between the government, which wanted information about an individual’s loyalty, and the citizen, who refused to give it. Yet in a distant sense, Sara’s case had started in the sixteenth century, when Henry VIII required his subjects to take “test oaths” that were directed at their beliefs, designed to coerce their loyalty to the Act of Succession and Henry’s marriage to Anne Boleyn. In this country Alexander Hamilton had defended a Royalist who had been victimized by a test oath in the Revolutionary period, and by the midtwentieth century, when Sen. Joseph McCarthy and the House Un-American Activities Committee were on the loose, a profusion of loyalty oaths had been promulgated. In fact, the very question Sara refused to answer had been drafted into the Arizona bar application following the decision of the American Bar Association, at its convention in 1950, to apply test oaths to all lawyers.
After waiting in the Counsel Room, and staring blankly at the portraits of bearded justices and worrying about a tongue that stuck to the roof of my mouth as if by Velcro, I was summoned into the Court’s chambers, where the oral argument would take place. This magnificent hearing room, with its columned visitors’ gallery, counsel tables, and elevated mahogany bench for the justices, had been the site of much of America’s judicial worst and best: the 1944 approval of mass internment for the Japanese-Americans in the Korematsu case, and ten years later, the banning of the segregation of public schools in Brown v. Board of Education .
As I fidgeted at the counsel table, I looked up at nine empty high-backed chairs behind the bench. To the left sat the clerk, who administers the Court’s docket; to the right, the marshal, who acts as timekeeper. With Sara seated behind me and two colleagues alongside me at the table, I waited for the justices to appear. Somehow, despite my inexperience and nerves, I had to convince the Court that Sara’s refusal to answer the question was neither petty obstructionism nor left-wing guilt, but rather a serious, principled, and courageous stand that warranted First Amendment protection. Having been victimized by a loyalty crusade in Washington some six years earlier—she had lost a security clearance because, it turned out, of the associations of someone she’d been seen with—Sara knew how pernicious they could be.