Hugo Black’s Vision of the Lawyer, The First Amendment, and the Duty of the Judiciary: The Bar Applicant Cases in a National Security State

Authors

Joshua E. Kastenberg, University of New Mexico - School of LawFollow

Document Type

Article

Publication Date

Spring 7-1-2012

Abstract

Centered on Justice Black, this Article is a legal history of the decisional processes, political influences, and jurisprudential ideologies involved in Konigsberg v. State Bar of California (Konigsberg I), Schware v. Board of Bar Examiners, Konigsberg v. State Bar of California (Konigsberg II ). It also provides a window into what the Justices saw as the role of the legal profession in the criminal justice system, as well as in national security. Within the Court, two opposing camps led by Justice Hugo Black and Justice John Harlan sparred over the ability of state judicial branches to determine bar admission based on political affiliation and loyalty oaths. Justice Black placed absolute faith in the First Amendment, while Justice John Harlan felt that its freedoms had to be balanced against societal needs. Although Black failed to build a sustained majority, his ideology ultimately prevailed over time through other decisions and independent acts of state bars, which, in turn, significantly modified Justice John Harlan’s jurisprudential ideology.

Publication Title

William and Mary Bill of Rights Journal

Volume

20

Issue

3

First Page

691

Recommended Citation

Joshua E. Kastenberg, Hugo Black’s Vision of the Lawyer, The First Amendment, and the Duty of the Judiciary: The Bar Applicant Cases in a National Security State, 20 William and Mary Bill of Rights Journal 691 (2012).
Available at: https://digitalrepository.unm.edu/law_facultyscholarship/437