Oyez, Oyez, Oyez


“Oyez, oyez, oyez,” the marshal said in a loud voice, and we stood as the justices filed in and took their seats. The chief justice was Warren Burger, recently appointed by President Nixon. Flanking him were the associate justices, Hugo L. Black, William O. Douglas, John M. Harlan, William J. Brennan, Jr., Potter Stewart, Byron R. White, and Thurgood Marshall. At the time of the first oral arguments, the Court was short one justice because Abe Portas had recently resigned in a cloud of scandal. Counting votes, we expected Black, Douglas, Brennan, and Marshall to be with us and Harlan, Stewart, White, and Burger to be against us. Realistically, Sara’s prospects were not good.

“Mr. Baird, you may proceed,” the chief justice said, and the white light flashed on, signaling that my time had begun. Almost immediately the conservative justices broke into my canned presentation with dozens of questions that sometimes rained down simultaneously. Why should a Communist be a lawyer? What groups had Sara really belonged to? If a lawyer actually believed in revolution, wouldn’t she foment it? Should police officers be asked if they were Communists? What was wrong with the government asking bar applicants their political beliefs?

By far the most dyspeptic questioner was Chief Justice Burger, who thought I was saying that “there is a constitutional right to overthrow the government by force and violence.” Indeed, we did not expect the chief justice to be hospitable; he had tried, just a few weeks earlier, to prevent me from arguing Sara’s case. Since I lacked the necessary years of practice to be automatically permitted to appear at the Court, I had petitioned the chief justice for special permission, which he refused. At Sara’s insistence we appealed his decision to the entire Court, which reversed him, granted me permission, and almost certainly got me off on the wrong foot with Chief Justice Burger.

Flustered, I tried to explain, over and over, that lawyers should be judged by their conduct, character, and professional competence, not by their personal, political, or religious beliefs, which were constitutionally protected by the First Amendment. In support of Sara’s position, we relied on some of the most eloquent words ever written by the United States Supreme Court. There was, for example, the famous flag-salute case, West Virginia State Board of Education v. Barnette , in which Justice Robert H. Jackson wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”

As the pounding from the Court’s conservatives continued, I lost my nervousness, patience, and judgment all at the same time. Exasperated, I blurted out that if Sara were excluded from the practice of law because of unacceptable beliefs, then President Nixon should be disbarred for “believing” in an unconstitutional war in Vietnam that Congress had never declared.

As the pounding from the Court continued, I lost my nervousness, patience, and judgment all at the same time.

The justices were stunned. How could any lawyer, even someone callow and brash, tell the United States Supreme Court that the President of the United States should be disbarred? After the words came out of my mouth, the courtroom fell into a strained, awkward silence. Soon, to everyone’s relief, the red light came on, and I sat down, still brimming with adrenaline.

Then the white light lit up, and the lawyer for the Arizona State Bar, Mark Wilmer, stood behind the lectern and started to explain why the committee was entitled to know Sara’s associations, views, and beliefs. Wilmer was tall, distinguished, experienced, and the senior dean of the Arizona trial bar. Roughly the same age as some of the justices, he addressed them as if they were his peers discussing constitutional truisms at a downtown men’s club.

“Whether we use the word belief , the word view , or whatever word we use, we are concerned with one thing,” Wilmer said. “If Mrs. Baird believes in the sense that she would actively advocate and assist and advance the overthrow of the government of the United States in the State of Arizona by force and violence, well, we want no part of her. . . . If Mrs. Baird says, ‘I propose to walk up and down the streets after I am admitted as a lawyer, proclaiming to the world that I, a lawyer, believe we should change the form of government by force, we want no part of her.” After a few polite questions the red light went on, and our stately opponent sat down, confident of victory.

Back home in Phoenix, I pored over the transcripts of the hearing and listened to friends tell me what an idiot I had been. All I could do was wait with Sara for a decision that never came.

In June 1970 we received a letter from the clerk of the Court informing us that there would not be a decision and that we should return to Washington in October for another argument. By then President Nixon’s newly confirmed nominee, Harry A. Blackmun, would be on board, and there would be a full nine-member Court. It did not take a constitutional scholar to figure out that there was a four to four deadlock. This meant, as a practical matter, that Justice Blackmun would decide the case.