In re Stolar/Concurrence-dissent Harlan

by John Marshall Harlan II

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.