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Lawyers and Loyalty-Security Litigation
Published online by Cambridge University Press: 01 July 2024
Abstract
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As I told you yesterday, I can't figure this out. A criminal lawyer, who is famous for making big fees-maybe he'll make $15, $20, $30 or $40,000-will go in and represent a person on a multiple murder, arson, rape, and four or five other crimes, and the public has some kind of fondness for that. But if some guy will take, if a lawyer will take a case and he says, “I'm going to represent this communist because I think he has a right to express himself, and I'm going to do it just for the love of doing it,” you get a little bit of an odd-ball stigma put on you. I think-I may be wrong on that. But ... it's a strange thing that when you do it for money, the public seems to accept it; when you do it for more lofty reasons, I'm not sure that the public does accept it. What do you think?
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- Research Article
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- Copyright © 1969 by the Law and Society Association.
Footnotes
Author's Note: For invaluable assistance during all stages of this research, I wish to thank David J. Danelski. Financial assistance in carrying out the research was provided by the National Science Foundation, Yale University, and the Brookings Institution.
References
1. Including programs for screening government employees; federal anti-subversive activities statutes (e.g., the Smith and McCarran Acts); federal and state loyalty oaths; and extensive investigative activities by legislative committees. For general background on government loyalty-security programs, see the following: The Federal Loyalty-Security Program. Report of the Special Committee of the Association of the Bar of the City of New York (1956); Report of the Commission on Government Security (1957); E. Bontecou, The Federal Loyalty-Security Program (1953). The leading analysis by a political scientist is E. Latham, The Communist Controversy in Washington (1966). For a critical review of Latham's work, see F. J. Donner, Leaving Out the Letter “E” 203 The Nation 422 (1966). W. Goodman, The Committee (1968) provides an entertaining history of the activities of the House Committee on Un-American Activities (HUAC).
2. Though sometimes there was a substantial time lag. Some important Court decisions came after the most virulent strains of McCarthyism had been severely weakened. Compare, for example, Dennis v. United States, 341 U.S. 494 (1951) and Yates v. United States, 354 U.S. 298 (1957).
3. The research reported here is excerpted from a study of lawyers who argued a variety of types of civil liberties and rights cases (loyalty-security, criminal justice, reapportionment, civil rights) during the 1957-66 period. See J. D. Casper, Lawyers in Defense of Liberty, 1968 (unpublished).
4. Because of limitations on the data available; the analysis presented here should be taken as somewhat provisional propositions, not as generalizations that have been empirically demonstrated. Forty-eight lawyers argued loyalty-security cases decided with opinion by the Supreme Court during the 1957-66 period. The data analyzed here are based upon a mail questionnaire (28 respondents) and a series of interviews (21 respondents); because of overlap between questionnaire and interview respondents, this amounts to a total of 30 respondents among the 48 lawyers.
5. With some notable exceptions. See, for example, Barenblatt v. United States, 360 U.S. 109 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); and Braden v. United States, 365 U.S. 431 (1961).
6. E.g., Watkins v. United States, 354 U.S. 178 (1957).
7. E.g., Gojack v. United States, 384 U.S. 702 (1966).
8. E.g., Russell v. United States, 369 U.S. 749 (1962).
9. E.g., Yellin v. United States, 374 U.S. 109 (1963).
10. E.g., Raley v. Ohio, 360 U.S. 423 (1959).
11. Including Aptheker v. Secretary of State, 378 U.S. 500 (1964); Albertson v. SACB, 382 U.S. 70 (1965).
12. See, for example, Greene v. McElroy, 360 U.S. 474 (1959), and Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886 (1961).
13. Some of the relevant loyalty oath cases include: Florida, Cramp v. Board of Public Instruction, 368 U.S. 278 (1961); Washington, Baggett v. Bullitt, 377 U.S. 360 (1964); Arizona, Elfbrandt v. Russell, 384 U.S. 11 (1966).
14. E.g., Pennsylvania v. Nelson, 350 U.S. 497 (1956).
15. For a summary of survey data dealing with attitudes toward Communists and other dissenters during the mid-1950's, see S. Stouffer, Communism, Conformity, and Civil Liberties (1955). The following data suggest the degree to which Communists were the subject of intense public hostility during the period in which a good deal of the loyalty-security litigation that reached the Supreme Court in the 1957-66 period began:
| Should membership in the Communist Party be forbidden by law? | ||
|---|---|---|
| Percent of Respondents Saying “Yes” | Date of Survey | Survey |
| 70.0% | 3/49 | AIPO #438 |
| 78.4 | 12/50 | AIPO #469 |
| 74.0 | 9/53 | MINN #120 |
| Should members of the Communist Party be allowed to speak on the radio? | ||
|---|---|---|
| Percent of Respondents Saying “No” | Date of Survey | Survey |
| 43.7% | 3/46 | NORC 49/141 |
| 57.3 | 4/48 | NORC 75/157 |
| 73.2 | 1/54 | NORC 136/351 |
| 75.5 | 1/56 | NORC 150/382 |
| 75.1 | 4/57 | NORC 156/404 |
16. See W. Murphy, Congress and the Court (1962).
17. Communist Legal Subversion: The Role of the Communist Lawyer, H.R. Doc. No. 41, 86th Cong., 1st Sess. (1959).
18. See M. Alexander, The Right to Counsel for the Politically Unpopular, 22 L. in Transition 19 (1962) for a discussion of some of the reasons why some lawyers were reticent about handling loyalty-security litigation.
19. The term “ACLU lawyer” is a euphemism used here to describe a typical lawyer who handles occasional cases for the ACLU but whose basic practice involves other types of matters. Many members of the Radical Bar were themselves members of the ACLU, but do not fall into the category “ACLU lawyer.”
20. The following description of some of the variables that appear to differentiate loyalty-security lawyers from lawyers who argued other civil liberties and rights cases is based upon statistical analysis using multiple regression and analysis of variance techniques. Because the small N's involved make the relationships tentative (though statistically significant), the variables are presented here as suggestions of patterns in characteristics, not as relationships that have been empirically demonstrated.
21. One interesting finding appears when the religious affiliations of the loyalty-security lawyers are examined. The twenty-eight questionnaire respondents who argued loyalty-security cases reported the following religious affiliations:
| Catholic | 00.0% |
| Protestant | 28.6 |
| Jew | 21.4 |
| None | 50.0 |
| 100.0% (N = 28) |
There is a common stereotype of the loyalty-security lawyer as an individual who is not only politically liberal, but also Jewish. Since one-half of the respondents reported no religious affiliation, the religion indicated for the respondents' fathers was checked, to see whether respondents who reported no affiliation were in fact lapsed Jews. For these fourteen respondents, the distribution of father's religious affiliation is as follows:
| Catholic | 7.2% |
| Protestant | 42.9 |
| Jew | 28.6 |
| None | 21.4 |
| 100.1% (N = 14) |
Thus, the evidence, provisional though it is, does not suggest that loyalty-security lawyers have been predominantly Jewish. Though apparently very few are Catholics, they are well-distributed (both in terms of current affiliation and family background) among Protestants, Jews, and nonaffiliates.
22. For example, two black members of the Radical Bar suggested that they were sometimes called into cases in part because of their race. One reported:
He [the lawyer for the defendants in a case involving members of the Communist Party] called from “Eastport” to tell me that they were looking for another lawyer and that he suggested me. It was a little more specific than that. It was just inconceivable that the defendants would go to trial with a battery of say three or four lawyers and not have a Negro among them. It would be a reflection on them and everything that they advocated.
On the other hand, some radicals might have preferred to be represented by more “respectable” lawyers but were unable to secure such representation and thus turned to those lawyers who were willing to handle their cases.
23. Or, some specialized in another field of social reform, civil rights.
24. This statement was suggested by a number of cooperating and staff attorneys of the ACLU. A similar view of the role of the ACLU and of the importance of a small group of lawyers in the loyalty-security cases arising during the McCarthy period is suggested in N. Hakman, The Supreme Court's Political Environment: The Processing of Noncommercial Litigation, in J. Grossman and J. Tanenhaus, Frontiers of Judicial Research (1969), pp. 199-253, at 226-227.
25. For a discussion of the Stammler hearing and some of the early stages of the litigation, see The New York Times, May 25, 1965, at 18; May 27, 1965, at 20; November 13, 1966, at 27. See also, Goodman, supra note 1, at 456-64.
26. The concept of clientele is closely related to the concepts of reference groups and reference individuals. For an introduction to the reference group literature, see 13 H. Hyman, Reference Groups, Int'l Encyc. Soc. Sci. 353-61 (1968); and R. Merton, Social Theory and Social Structure ch. 8 (1957). Any lawyer in litigation probably has a number of reference groups and individuals, including his client, the judge, and other members of the bar. Clientele attempts to focus upon the reference group or individual most salient to the lawyer.
The concept of clientele is also related to the so-called group process approach to the legal process. See, for example, J. Peltason, Federal Courts in the Political Process (1955) and C. E. Vose, Litigation as a Form of Pressure Group Activity, 319 Annals 20 (1958). Though clientele itself does not focus upon the activity of interest groups, it does deal with the perception of the attorney of the nature and breadth of the “interest” he is representing in his litigation.
27. The questions in the interview schedule most relevant to clientele were as follows:
- (1)
(1) Did you consider the case primarily important for your client or for broader social considerations?
- (2)
(2) Were you interested in winning the case on any possible ground, or in establishing a particular point of law?
- (3)
(3) Were you satisfied with the results of this litigation?
28. Though, if Truman's definition of group membership—interaction and shared attitudes—is adopted, the white civil rights lawyer and his black clientele are members of the same group. See D. Truman, The Governmental Process ch. 2 (1951).
29. For example, a Group Advocate for a political faction in a reapportionment case who was trying to “break the back of the rural machine” was often indifferent to the grounds for decision. Whether a judge ordered reapportionment because the equal protection clause required population apportionment in both houses, or because he examined the specific apportionment scheme and found that it “discriminated invidiously,” or was “arbitrary,” the outcome—reapportionment—still occurred.
Alternatively, in some of the later sit-in cases, Group Advocates were almost exclusively interested in the grounds for decision. They knew they could almost invariably succeed in having their clients' convictions overturned by demonstrating some overt state action in favor of discrimination, but were interested in using their suits to induce the courts to declare that discrimination in public accommodations—in the absence of overt state action—was itself unconstitutional.
30. The distinction between Group Advocates and Civil Libertarians is illuminated by contrasting the Legal Defense Fund (LDF) of the NAACP with the ACLU. Lawyers of both organizations become involved in litigation presenting somewhat similar issues. For the Legal Defense Fund, the operative factor in its involvement has typically been the presence of an issue involving black people (i.e., an issue affecting this particular group of people); for the ACLU, the operative factor has been the presence of some democratic principle. The services of the LDF have in a sense not been available to all, for the organization was set up and functioned primarily as an advocate for a particular minority, black people (though this appears to be changing; the LDF is more and more becoming involved in litigation dealing with issues that affect many minority groups, not just blacks). The ACLU, on the other hand, tends to be indifferent to the characteristics of its clients—ACLU lawyers have represented fascists and Communists, racists and blacks. In the case of one organization, a particular group of people brings it into action; in the other, a kind of principle. The difference between the activities of the two organizations corresponds closely to the distinction between the Group Advocate and the Civil Libertarian.
31. See Goodman, supra note 1, for a description of several HUAC hearings.
32. See Alexander, supra note 18, at 42.
33. See Casper, supra note 3, for a more detailed discussion of the factors affecting lawyers' clienteles.
34. Legal ideology appears to be the most important variable affecting clientele. Other factors operate at the margin, as in the case of Radical Bar and ACLU lawyers, both of whom had similar legal ideologies.
35. As suggested above, age is perhaps the crucial difference between Radical Bar and ACLU lawyers. The different career patterns, friendship ties, and legal experience discussed here are related to this age difference.
36. See, for example, L. Hughes, Fight For Freedom: Story of the Naacp (1962); and C. Vose, Caucasians Only (1959).
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