John Marshall Harlan II

“ We think it clear that the Fourteenth Amendment's protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications. ”

“ All it has presently required is an applicant's cooperation with the Committee's search for evidence of forbidden advocacy. Petitioner has been denied admission to the California bar for obstructing the Committee in the performance of its necessary functions of examination and cross-examination, a ruling which indeed presupposes that the burden of producing substantial evidence on the issue of advocacy was not upon petitioner but upon the Committee. Requiring a defendant in a civil proceeding to testify or to submit to discovery has never been thought to shift the burden of proof to him. ”

“ It would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions. ”

“ We likewise regard as untenable petitioner's contentions that the questions as to Communist Party membership were made irrelevant either by the fact that bare, innocent membership is not a ground of disqualification or by petitioner's willingness to answer such ultimate questions as whether he himself believed in violent overthrow or knowingly belonged to an organization advocating violent overthrow. ”

“ The state procedural rule involved here is a less broad one, for all that California has in effect said is that in cases where, on matters material to an applicant's qualifications, there are gaps in the evidence presented by him which the agency charged with certification considers should be filled in the appropriate exercise of its responsibilities, an applicant will not be admitted to practice unless and until he cooperates with the agency's efforts to fill those gaps. ”

“ Any applicant denied certification may have the Committee's action reviewed by the State Supreme Court. Id., § 6066.
In 1953 petitioner, having successfully passed the California bar examinations, applied for certification for bar membership. The Committee, after interrogating Konigsberg and receiving considerable evidence as to his qualifications, declined to certify him on the ground that he had failed to meet the burden of proving his eligibility under the two statutory requirements relating to good moral character and nonadvocacy of violent overthrow. ”

“ The Court did not consider, but reserved for later decision, all questions as to the permissibility of the State treating Konigsberg's refusal to answer as a ground for exclusion, not because it was evidence from which substantive conclusions might be drawn, but because the refusal had thwarted a full investigation into his qualifications. See 353 U.S. at pages 259-262, 77 S.Ct. at pages 726-728. The State now asserts that ground for exclusion, an issue that is not foreclosed by anything in this Court's earlier opinion which decided a quite different question. ”

“ Petitioner does not challenge the constitutionality of § 6064.1 of the California Business and Professions Code forbidding certification for admission to practice of those advocating the violent overthrow of government. ”

“ Such evidence may result from the Committee's own independent investigation, from an applicant's responses to questions on his application form, or from Committee interrogation of the applicant himself. This interrogation may well be of decisive importance for, as all familiar with bar admission proceedings know, exclusion of unworthy candidates frequently depends upon the thoroughness of the Committee's questioning, revealing as it may infirmities in an otherwise satisfactory showing on his part. ”

“ Justice Holmes once said: ' (T) he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. ”