Justice Black's Illogic
HOOK, SIDNEY
A case study in professional ethics By Sidney Hook Justice Black's Illogic Ever since FDR named him to the Supreme Court in 1937, Justice Hugo Black has stirred admiration and controversy by his...
...In addition to passing examinations, the state imposes two basic requirements for certification...
...In effect, this is Justice Black's interpretation...
...Three key illustrations of this must suffice...
...That is why, among other reasons, mere knowledge of the law is no more a sufficient qualification for the practice of law than mere knowledge of medicine is a sufficient qualification for being licensed as a physician...
...I am confident that, if Justice Black and the four other Justices who concurred with his opinion were confronted by our hypothetical case, the refusal of the Bar Committee to certify the good character of the candidate would be sustained...
...Not only is this Koenigsberg's interpretation...
...The question before us, it seems to me, is whether it violates the Fourteenth Amendment for a state bar committee to decline to certify for admission to the bar an applicant who obstructs a proper investigation into his qualifications by deliberately and without constitutional justification refusing to answer questions relevant to his fitness under valid standards, and who is therefore deemed by the state, under its law, to have failed to carry his burden of proof to establish that he is qualified...
...The decision in the Koenigsberg case, however, is not only bad logic, it is a blow to the attempt to enforce proper standards of professional legal ethics...
...If he isn't telling the truth, it raises doubts about his character...
...These writings were made part of the record...
...And in view of the instructions it gives its members on how to behave in professional groups, such membership is relevant to the question whether he possesses a good character...
...The same failure to relate evidence to the proper inference is apparent in Justice Black's consideration of Koenigsberg's writings...
...But it may be instructive to look a little more closely at how he reaches his conclusion...
...He is asked to confirm or deny the testimony...
...He must show that he is of good moral character...
...In this situation, would anyone with a grain of common sense assert that the candidate had proved beyond a reasonable doubt that he was of good character...
...He introduces some witnesses who swear that he has a good reputation...
...Further, if they cannot determine whether he is telling the truth, if he refuses to confirm or deny the evidence of witnesses impugning his own testimony, how can they honestly certify that Koenigsberg is of good character, despite the depositions of other witnesses about his reputation...
...At no point did he invoke the privilege against self-incrimination in the Fifth Amendment...
...The true character of the issue, asserts Justice Harlan, has been entirely misconceived by Justice Black: "The Court decides the case as if the issue were whether the record contains evidence demonstrating as a factual matter that Koenigsberg had a bad mora] character...
...he must show that he does not advocate the use of force and violence against the Government...
...He then appealed to the U.S...
...Neither the reasonableness of the requirements nor their constitutionality is contested by Justice Black...
...The intensity of emotions aroused by the issue of Communism, which even among some members of the judiciary seems inversely proportionate to their knowledge of the subject, often obscures basic ethical and logical principles...
...And would not his refusal to answer any questions or to disavow his past membership in the Klu Klux Klan at the very least justify a reasonable doubt of his fitness...
...He says that he does not advocate the use of force and violence against the Government...
...The candidate must show (1) that he is of a good moral character and (2) that he does not advocate the overthrow of the Government of the United States or of California by force and violence...
...The refusal of the candidate to answer it does not prove conclusively or automatically that he was or still is a member...
...Of course they are...
...There may be a considerable difference between a candidate's character and his reputation...
...The first is provided by Justice Black's statement that, even if Koenigsberg had been a member of the Communist party, "the mere fact of membership would not support an inference that he did not have a good moral character...
...And what it means is that even if a candidate lies to a committee of the bar whose function it is to determine whether he qualifies as a person of good character, the committee has no right to cross-examine him—if what he lies about is whether he advocates the forcible overthrow of the Government...
...But to the question whether he was a member of the Communist party, an organization held by official agencies including the Supreme Court to advocate the violent overthrow of democratic government, Koenigsberg refused to answer...
...He contended that the First Amendment absolved him from answering any question about political ideology or membership...
...It is a refusal to recognize the right of the Character Committee of the bar to cross-examine the candidate concerning the truth of his allegations about his present advocacy of force and violence...
...The Committee refused to certify Koenigsberg not because he "simply" refused to answer questions but because he refused to reply to questions designed to test the veracity of his earlier answers...
...He may have wandered into the Mafia under the impression it was a mutual benevolent association...
...He refused to confirm or deny it...
...He writes that Koenigsberg "was not denied admission to the California Bar simply because he refused to answer questions...
...If he is still a member, his entire testimony becomes questionable...
...Past membership in the Communist party as such does not establish that a person is now of bad character any more than past membership in the Ku Klux Klan establishes that a person is now necessarily a racist...
...The operating word, which I have here italicized, is simply...
...Justice Black, to continue the analogy, interprets the situation as if the Committee were arguing that Koenigsburg took his examination and failed it, while he, Justice Black, having read it, decides that he passed...
...The main reason offered by the Examiners is that Koenigsberg obstructed their inquiry by refusing to answer the relevant and legitimate questions put to him which would permit them to pass upon his qualifications...
...If C has been a member of the Mafia, he might still be a member...
...At one point, Mr...
...All the Committee says is that, by refusing to answer questions on these matters, he deprived it of the necessary evidence to determine whether he qualified...
...It is even more brazen than that...
...In this he was sustained by Justice Black's opinion, which, with a bland disregard of the provisions of the state law, the logic of the actual evidence, and the moral implications of refusal to reply to questions bearing on professional integrity, states: "In this case we are compelled to conclude that there is no evidence in the record which rationally justifies a finding that Koenigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government...
...Anyone who knows anything about the Communist movement and the issues (the Korean War, the Dennis case, the Hollywood Ten) recognizes them as typical Stalinist tripe...
...Neither the petitioner nor Justice Black makes any complaint on that score...
...To see the issue in a clearer light, let us examine a hypothetical case in which the question of Communism does not enter...
...He refuses to answer...
...Opinions vary as to the social function and role of the legal profession...
...But past membership in the Communist party is relevant to determining whether or not an individual is still a member and whether he currently advocates forcible overthrow...
...Suppose Mr...
...For example, no matter how convinced he is of the innocence of his client (or, if he is a state attorney, the guilt of the defendant), he cannot suborn witnesses...
...Others in reaction to this form of extremism invoke the Bill of Rights as a shield for Communists who are guilty of unprofessional behavior or who violate codes of professional ethics where no issue of civil rights is involved...
...The Examiners, as the record shows, conducted themselves with exemplary courtesy and fairness...
...The truth is that the Committee refused to certify not because of the affirmative nature of his replies but because of the absence of any to the crucial questions...
...And therefore to his fitness...
...But the rational inference, even if not conclusive, which can be drawn is that the writer of those editorials was following the Communist party line, and that this fact, if established, is relevant in determining the truth of the sworn and public testimony identifying him as a member of the Communist party, relevant to the question whether he is still a member and, finally, relevant to the question whether he is truthful in his current denial of advocacy of violent overthrow...
...His vigorous dissent cuts to the heart of the matter and convicts Justice Black of so crass an ignoratio elenchi that it becomes difficult to understand how Justice Black could have won the concurrence of a majority of his colleagues...
...It was asking him, so to speak, to hand in his examination paper...
...And, because he has blocked inquiry, the Committee cannot certify that he is telling the truth...
...Finally, anyone who reads the record carefully will recognize that the Bar Examiners did not contend that Koenigsberg was or is a member of the Communist party, or that he advocated forcible overthrow, or that he was a person of bad character...
...The Examiners ask him whether the witness's testimony is true...
...Of course not...
...They could ask him no question designed to test the truth of that statement, particularly concerning his political beliefs and associations...
...How then, they ask, can they determine whether he is telling the truth...
...If C prevents the Committee of the Bar from assaying the truth of his statements, he is obviously preventing them from discharging their obligations, laid on them by order of law, to investigate his qualifications...
...For, although it may be argued that the Mafia does not officially advocate the use of force and violence to overthrow the Government but only the use of violence against zealous law-enforcement officers, the Supreme Court itself has held that the Communist party does advocate the use of force and violence to overthrow democratic government...
...As officers of the court, lawyers have an obligation not only to their clients but to- the entire community to safeguard the integrity of the judicial process...
...They were charged by the state to certify, only on positive grounds of evidence, concerning the applicant's moral character and his advocacy of force and violence...
...She was cross-examined by Koenigsberg's counsel, who failed to shake her testimony...
...Justice Black relates past membership to the wrong inference...
...After quoting some passages, Justice Black writes: "We do not believe that an inference of bad moral character can rationally be drawn from these editorials...
...IT is difficult for me to believe that Justice Black's opinion will stand the scrutiny of the second thoughts of his colleagues...
...At one point, he explained that no matter how he answered the question, whether he said "I was or wasn't, undoubtedly there would be several whom you could get to say the opposite.' Apparently he professed to believe that the stale of justice in California was such that even if he admitted membership he would risk subjecting himself to a perjury charge...
...C, a candidate for admission to the bar, is being questioned by the Character Committee in the normal course of its inquiries...
...In the end, Koenigsberg contended that under the state law the Examiners were limited merely to asking him whether he personally advocated at the present moment overthrow of government by force and violence...
...But the opinion in the Koenigsberg case sinks lower still, and I fear very much that the end is not in sight...
...A former Communist, in the presence of Koenigsberg, identified him as a member of the Communist party...
...The Committee presumably would try to prove that even then he had lied...
...But the Examiners make absolutely no such claim...
...The argument of the Examiners was simple and straightforward...
...If membership is a relevant question, then once a candidate has been identified as a member of the Communist party, an inquiry as to whether the identification is true or false is also relevant...
...It has been disheartening to observe the undiscriminating reactions of total approval or total disapproval to the recent spate of Supreme Court decisions...
...To the question whether he advocated the use of force and violence to overthrow the Government, Koenigsberg answered, "No...
...Similarly with respect to membership in the Communist party...
...In terms of the Supreme Court's own ruling, present membership in the Communist party is certainly relevant to determining whether a candidate to the bar advocates forcible overthrow...
...He does so by a consistent misunderstanding of the plain logic of the evidence...
...When the discrepancy between this answer and his earlier denial of belief in Communism was pointed out, he claimed that he regretted his earlier denial and would not answer the question if it were put to him again...
...A witness swears that Koenigsberg was a member of the Communist party...
...Although Justice Harlan is quite correct, I believe it will be illuminating to examine some of the wider issues involved in Justice Black's opinion, particularly his evaluation of the actual evidence in the case, and its bearings upon the standard of professional integrity which boards of examiners may reasonably expect candidates for admission to the bar to meet...
...That is my interpretation...
...The record indicates that the Committee repeatedly pointed this out to him...
...A case study in professional ethics By Sidney Hook Justice Black's Illogic Ever since FDR named him to the Supreme Court in 1937, Justice Hugo Black has stirred admiration and controversy by his consistently broad view of the First Amendment—a view in which the Smith Act and many other laws against Communists are unconstitutional...
...After being refused certification, Koenigsberg appealed to the California Supreme Court, which refused to reverse the Board of Examiners...
...Every attempt to test the validity of these inferences—to uncover the evidence which would convert a warranted inference into a warranted assertion or conclusion—was defeated by the candidate himself...
...Justice Harlan's dissent rightfully charges that the Court through Justice Black's opinion "imposes on California its own notions of public policy and judgment...
...an examiner, asks: "Are we not entitled to an evaluation of that truth or...
...The record shows that Koenigsberg himself withdrew from the due process of inquiry by refusing to answer relevant and unprivileged questions...
...The applicant swears he does not now believe in or advocate the overthrow of the Government by force and violence...
...In the Koenigs-berg case, treated here, Black (joined by Warren, Douglas, Burton, Brennan and Whittaker) ruled that Bar examiners may draw no inference of bad moral character when an applicant cites the First Amendment in refusing to answer questions about Communist affiliations...
...Just as the ethics of the medical profession imposes certain moral limits, which the physician's treatment of his patient cannot transcend, just as the ethics of teaching and honest inquiry rules out certain procedures as impermissible in instructing students, so the ethics of the legal profession limits what a lawyer can do in behalf of his client...
...Some of his writings, particularly on the Korean War, the Dennis Case, and the refusal of the Supreme Court to review the case of the Hollywood Ten, turn out in their phrasing to be perfect ringers for Daily Worker copy...
...Justice Black charges that, in refusing him certification, the State of California through its Examining Committee was denying Koenigsberg due process of law...
...He may not be telling the truth...
...To the question whether he was a Communist, Koenigsberg at first answered, "No...
...The record shows clearly again and again that the candidate, upon whom rests the burden of proof of his fitness, defiantly denied the right of the Committee to question the truth of his answer...
...How can they conscientiously certify that he does not advocate the overthrow of the Government by force and violence if he persists in his refusal to answer questions on which he is not even privileged to refuse to reply...
...But what is truly puzzling is that, if the logic of this case is clear, the logic of the Koenigsberg case is even clearer...
...Supreme Court on the ground that his rights under the Fourteenth Amendment had been violated...
...Or that the writer of those lines was a green-haired wife-beater...
...And due process of law in this case required that Koenigsberg submit to due process of inquiry...
...In effect, he walked out on his examiners...
...In his usual felicitous manner, Justice Felix Frankfurter has recently said: "It is a fair characterization of the lawyer's responsibility in our society that he stands "as a shield' in defense of right and to ward off wrong...
...Without some authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him, it is difficult to comprehend why the State Bar Committee rejected a man of Koenigsberg's background and character as morally unfit to practice law...
...After passing the California bar examinations, Koenigsberg came before the State Committee of Bar Examiners, which passes on the fitness of all applicants to practice law...
...The burden of proof rests clearly upon him...
...To which Koenigsberg replies: "That is right...
...What makes the question of his past membership relevant is its bearing on whether he is telling the truth now...
...From a profession charged with such responsibilities there must be exacted those qualities of truth-seeking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as 'moral character.' " It is in the light of these commonly accepted desiderata of professional responsibility that we turn to an examination of a recent opinion of the United States Supreme Court, Koenigsberg v. the State Bar of California, delivered by Associate Justice Hugo L. Black...
...Maxfield...
...If an individual were required, say, to prove that he did not advocate racism as a qualification for a teaching position, and if he had been identified as a former member of the Klu Klux Klan, would not his refusal to answer whether he was a member or still is a member of the Klu Klux Klan be relevant to our inquiry as to whether he does not currently advocate racism...
...Sworn testimony is then given that he was a member of the Mafia...
...Certain qualities of moral integrity or moral character are also indispensable...
...in an effort to evaluate it...
...He absolutely refuses to do so...
...I had thought that the Court's opinion in the Slochower case (decided by 5 to 4) represented a low point in logical reasoning and sensitivity to the ethics of professional responsibility...
...to cross-examine you with respect to past or present associations...
...Some members of the community would deny Communist conspirators the protection of the Bill of Rights...
...I do not think that is the issue...
...After granting Koenigsberg several hearings, the Examiners refused to certify him on the ground that he had failed to establish what the state required him to do...
...Are the questions relevant...
...To the question whether he is now a member of the Mafia, he refuses answer on the ground that he is protected under the First Amendment...
...He must uphold the integrity of the law even at the cost of losing a case...
...One would therefore expect him to give a certain weight to the findings of the Board of Examiners and examine their reasons for refusing certification...
...They are a mixed bag, requiring careful judgment to distinguish the wise from the foolish...
...He failed his test just as much as if he had refused to hand in his written examination...
...This is aggravated by the fact that, whenever basic questions concerning the Communist movement are involved, Justice Black's judgment and notions of public policy (and those of his colleagues who agree with him) are bad because "simply" uninformed...
...The facts in the situation are as follows...
...Justice Black's opinion, however, is based on a flagrant misreading of the record...
...But, before considering this and related matters, I wish to pay tribute to the dissenting opinion of Justice John Marshall Harlan, who, here as in the Slochower case, saves the intellectual honor of the Court...
...In refusing to certify him, the Committee is not asserting that he is now of bad character but only that he has blocked legitimate inquiry into relevant questions...
...Instead of addressing himself to this question, Justice Black implies that the Examiners are claiming that the record contains positive evidence of bad moral character on the part of the candidate and positive evidence that he advocates forcible overthrow...
...As we shall see, whatever it is that compels Justice Black to reach the conclusion he does, it is not the evidence in the record...
...As we said before, the mere fact of Koenigsberg's past membership in the Communist party, if true, without anything more, is not an adequate basis for concluding that he is disloyal or a person of bad character...
...Regardless of the range of these ideas—and some of them are less extreme and more sensible—there is practical unanimity concerning the importance of the legal profession as a custodian of our constitutional liberties...
...His earlier denial of belief in Communism had been made before he was identified as a member of the Communist party...
...Koenigsberg was then asked by the Examiners whether her testimony was true...
...Logically, the first question to ask is whether it is reasonable for the State of California (or any state) to require candidates for admission to the bar to disavow advocacy of force and violence to overthrow the Government and laws they are pledged to defend, and to require that they be of good moral character...
...But it is incontrovertible evidence of obstruction of a legitimate effort on the part of the Committee to find out...
...It should be noted carefully—for this point is crucial —that even if C had been a member of the Mafia, by itself this does not establish automatically that he is now of bad character or that he now advocates force and violence...
...The spectrum extends all the way from the belief that judges and lawyers are invariably apologists for the status quo to the view that they are the most qualified interpreters of a natural law which, despite a shifting historical content, possesses an eternal moral validity...
Vol. 40 • December 1957 • No. 48
