Oyez, Oyez, Oyez

PrintPrintEmailEmail

“Oyez, oyez, oyez” came the now familiar incantation from the marshal, and all nine justices took their seats on the afternoon of October 14, 1970. Even though Justice Blackmun would later write the majority opinion in the abortion rights case of Roe v. Wade and be considered a judicial “liberal,” he was then known as a conservative.

Even before we returned to Washington, I vowed not to mention again the disbarment of President Nixon, but I did have to neutralize the conservative justices’ revulsion to Communism, and if I could demonstrate how selective the committee had been in singling out left-wing beliefs rather than right-wing ones, then maybe the conservatives, especially Justice Blackmun, could better appreciate why all political beliefs are protected by the First Amendment.

The white light came on, and I quickly posed this hypothetical case: “Take the ardent, hard-core racist who in his mind disbelieves in the equal protection clause; he disbelieves in Brown v. Board of Education ; and he believes in as many venal thoughts as he possibly can.” I went on: “That man has the right to practice law just as much as the person who has an abhorrent left-wing belief because you judge a man by his conduct.”

Unlike our earlier oral argument in December 1969, when the conservative justices lacerated me with nonstop questions, this time they asked only a few questions and were remarkably polite. Maybe they did not want to provoke me into again calling for Nixon’s disbarment. More likely, they had already made up their minds. The red light flashed on, my thirty minutes were over, and I sat down.

As before, Wilmer authoritatively stepped up to the lectern, saw the white light, and resumed talking to his peers. Just then Justice Black, who had been a First Amendment champion on the Court for decades and had been largely silent during the first argument, exploded with a series of piercing questions. With Justice Black on the offensive and the other justices mute, Wilmer conceded that the committee had looked but could not find anything subversive about Sara. As he admitted, “Nothing else [except for her refusal to answer question 27] in the files indicated that there was anything else wrong with this lady.”

Under continued pressure from Justice Black, Wilmer also admitted that question 27 did not on its face directly call for the disclosure of any personal or political beliefs. However, a “wrong answer” to it would “trigger” an interrogation by the committee into Sara’s “feelings” and “beliefs.” According to Wilmer, “The entire purpose of that question—if the answer is yes—is to then interrogate the applicant as to what in fact are your present feelings and beliefs and intentions with respect to the overthrow of the government by violence.” Justice Black seemed pleased with that answer.

In closing, Wilmer asked the Court to “balance” the competing interests at stake as he saw them. On the one hand, he said, there was a “little, old, tiny answer” that Sara refused to give. On the other hand, there was the “overthrow of the government by force and violence” that the committee sought to avert. If those two interests were “balanced,” then the preservation of the Republic vastly outweighed Sara’s First Amendment rights.

Since being sworn in as a member of the Arizona bar, Sara has not attempted to overthrow the government.

The red light went on, Wilmer sat down, and the chief justice declared, “The case is submitted.” This time he was right.

On February 23, 1971, Justice Black wrote the Court’s majority opinion, reversed the Arizona Supreme Court, and explicitly ordered that Sara Baird be admitted to the practice of law. In his opinion Justice Black wrote: “A State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes. . . . we hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law. Clearly Arizona has engaged in such questioning here.”

Finally, Justice Black concluded with this directive to the committee and to the Arizona Supreme Court: “The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character. This record is wholly barren of one word, sentence, or paragraph that tends to show this lady is not morally and professionally fit to serve honorably and well as a member of the legal profession. . . . The judgment of the Arizona Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.”

To everybody’s surprise, newly appointed Justice Blackmun did not decide the case at all. Instead he dissented. Joining Black to form the majority were Douglas, Brennan, Marshall, and, to our astonishment, Stewart, who must have changed his mind since the first argument.

On March 30, 1971, the Arizona Supreme Court complied with the mandate from the United States Supreme Court, held a special session, and swore in Sara Baird as a member of the State Bar of Arizona, with her young children watching. Since then she has not attempted to overthrow the government by force or violence or by any other means. However, three years later there was a postscript.