366 U.S. 82 (1961), 58, In re Anastaplo

Docket Nº:No. 58
Citation:366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135
Party Name:In re Anastaplo
Case Date:April 24, 1961
Court:United States Supreme Court

Page 82

366 U.S. 82 (1961)

81 S.Ct. 978, 6 L.Ed.2d 135

In re Anastaplo

No. 58

United States Supreme Court

April 24, 1961

Argued December 14, 1960



A rule of the Supreme Court of Illinois provides that applicants shall be admitted by it to the practice of law after satisfactory examination by the Board of Examiners and certification of qualification by a Committee on Character and Fitness. In hearings before that Committee, petitioner refused to answer any questions pertaining to his membership in the Communist Party, not on the ground of possible self-incrimination, but on the ground that such inquiries violated his freedom of speech and association. The Committee declined to certify him as qualified for admission to the Bar, solely on the ground that his refusals to answer such questions had obstructed the Committee's performance of its functions. The State Supreme Court denied him admission to practice.

Held: denial of petitioner's application for admission to the Bar on this ground did not violate his rights under the Fourteenth Amendment. Pp. 83-97.

(a) It is not constitutionally impermissible for a State to adopt a rule that an applicant will not be admitted to the practice of law if, and so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-examining him upon his qualifications. Konigsberg v. State Bar, ante, p. 36. P. 88.

(b) Petitioner was not privileged under the Fourteenth Amendment to refuse to answer questions concerning membership in the Communist Party. Konigsberg v. State Bar, supra. P. 89.

(c) The fact that there was no independent evidence that petitioner had ever been a member of the Communist Party did not prevent the State, acting in good faith, from making this inquiry in an investigation of this kind. Pp. 89-90.

(d) During the hearings before the Committee, petitioner was given adequate warning as to the consequences of his refusal to answer the Committee's questions relating to membership in the Communist Party. Pp. 90-94.

(e) In the circumstances of this case, petitioner's exclusion from the Bar on the ground that he had obstructed the Committee in the performance of its duties was not arbitrary or discriminatory. Pp. 94-97.

18 Ill.2d 182, 163 N.E.2d 429, affirmed.

Page 83

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

The questions presented by this case are similar to those involved in No. 28, [81 S.Ct. 980] Konigsberg v. State Bar of California, decided today, ante, p. 36.

In 1954, petitioner, George Anastaplo, an instructor and research assistant at the University of Chicago, having previously passed his Illinois bar examinations, was denied admission to the bar of that State by the Illinois Supreme Court.1 The denial was based upon his refusal to answer

Page 84

questions of the Committee on Character and Fitness as to whether he was a member of the Communist Party.2 This Court, two Justices dissenting, refused review. 348 U.S. 946. In 1957, following this Court's decisions in the earlier Konigsberg case, 353 U.S. 252, and in Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, Anastaplo sought to have the Character Committee rehear his application for certification. The Committee, by a divided vote, refused, but the State Supreme Court reversed and directed rehearing.3

Page 85

The ensuing lengthy proceedings before the Committee,4 at which Anastaplo was the only witness, are perhaps [81 S.Ct. 981] best described as a wide-ranging exchange between the Committee and Anastaplo in which the Committee sought to explore Anastaplo's ability conscientiously to swear support of the Federal and State Constitutions, as required by the Illinois attorneys' oath, and Anastaplo undertook to expound and defend, on historical and ideological premises, his abstract belief in the "right of revolution," and to resist, on grounds of asserted constitutional right and scruple, Committee questions which he deemed improper.5 The Committee already had before it uncontroverted evidence as to Anastaplo's "good moral character," in the form of written statements or affidavits

Page 86

furnished by persons of standing acquainted with him, and the record on rehearing contains nothing which could properly be considered as reflecting adversely upon his character or reputation or on the sincerity of the beliefs he espoused before the Committee.6 Anastaplo persisted, however, in refusing to answer, among other inquiries,7 the Committee's questions as to his possible membership in the Communist Party or in other allegedly related organizations.

Thereafter the Committee, by a vote of 11 to 6, again declined to certify Anastaplo because of his refusal to answer such questions, the majority stating in its report to the Illinois Supreme Court:

his [Anastaplo's] failure to reply, in our view, (1) obstructs the lawful processes of the Committee, (ii) prevents inquiry into subjects which bear intimately upon the issue of character and fitness, such as loyalty to our basic institutions, belief in representative government and bona fides of the attorney's oath and (iii) results in his failure to meet the burden of establishing that he possesses the good moral character and fitness to practice law, which are conditions to the granting of a license to practice law.

We draw no inference of disloyalty or subversion from applicant's continued refusal to answer questions concerning Communist or other subversive affiliations. We do, however, hold that there is a strong public interest in our being free to question applicants for admission to the bar on their adherence to our basic institutions and form of government

Page 87

and that such public interest in the character of its attorneys overrides an applicant's private interest in keeping such views to himself. By failing to respond to this [81 S.Ct. 982] higher public interest, we hold that the applicant has obstructed the proper functions of the Committee. . . . We cannot certify the applicant as worthy of the trust and confidence of the public when we do not know that he is so worthy and when he has prevented us from finding out.

At the same time, the full Committee acknowledged that Anastaplo

is well regarded by his academic associates, by professors who had taught him in school and by members of the Bar who know him personally . . . ;

that it had

not been supplied with any information by any third party which is derogatory to Anastaplo's character or general reputation . . . ;

and that it had

received no information from any outside source which would cast any doubt on applicant's loyalty or which would tend to connect him in any manner with any subversive group.

Further, the majority found that Anastaplo's views

with respect to the right to overthrow the government by force or violence, while strongly libertarian and expressed with an intensity and fervor not necessarily shared by all good citizens, are not inconsistent with those held by many patriotic Americans both at the present time and throughout the course of this country's history, and do not, in and of themselves, reveal any adherence to subversive doctrines.

Page 88

Upon review, the Illinois Supreme Court, over three dissents,8 confirmed the Committee's report and refusal to certify Anastaplo, reaffirming in its per curiam opinion the court's

. . . earlier conclusion that a determination as to whether an applicant can in good conscience take the attorney's oath to support and defend the constitutions of the United States and the State of Illinois is impossible where he refuses to state whether he is a member of a group dedicated to the overthrow of the government of the United States by force and violence.

18 Ill.2d 182, 200Ð201, 163 N.E.2d 429, 439. We granted certiorari, 362 U.S. 968, and set the matter for argument along with the Konigsberg case, p. 36, and Cohen v. Hurley, post, p. 117.

Two of the basic issues in this litigation have been settled by our contemporary Konigsberg opinion. We have there held it not constitutionally impermissible for a State, legislatively or through court-made regulation as here and in Konigsberg, to adopt a rule that an applicant will not be admitted to the practice of law if, and so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-examining him upon his qualifications. That such was a proper function of the Illinois Character Committee is incontestably established by the opinions of the State Supreme Court in this case. 3 Ill.2d

Page 89

at 476, 121 N.E.2d at 829; 18 Ill.2d at 188, 163 N.E.2d at 432.9

We have also held in Konigsberg that the State's interest in enforcing such a rule as applied to refusals to answer questions about membership in the Communist Party outweighs any deterrent effect upon freedom of speech and association, and hence that such state action does not offend the Fourteenth Amendment.10 We think that, in this respect, no valid constitutional distinction can be based on the circumstance that, in Konigsberg, there was some, though weak, independent evidence that the applicant had once been connected with the Communist Party, while here, there was no such evidence as to

Page 90

Anastaplo. Where, as with membership in the bar, the State may withhold a privilege available only to those possessing the requisite qualifications, it is of no constitutional significance whether the State's interrogation of an applicant on matters relevant to these qualifications -- in this case, Communist Party membership -- is prompted by...

To continue reading