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.
“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.
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.
“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.
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.
In its September 13, 1974, edition, the Washington Post carried an Associated Press story under this headline: NIXON RESIGNATION FROM CALIFORNIA BAR RECEIVED BY COURT . According to the news article, the former President had resigned in lieu of possible disbarment, not for any beliefs or views but because of his illegal conduct in obstructing the Watergate investigation.
Oyez, oyez, oyez.