Hugo Black and Norm Pattis on bravery, sacrifice, and the legal profession

April 17

Some of you wrote to me after my post on Hugo Black on Tuesday to remind me of other Black opinions you particularly liked or despised. This won’t persuade David Bernstein, but one opinion I had forgotten about was Black’s dissent in In Re Anastaplo. George Anastaplo was a graduate of the University of Chicago Law School who refused to answer the Illinois Character and Fitness Committee’s questions about being a communist. He was denied admission to the bar and litigated that denial on First Amendment grounds, losing 5-4 in the Supreme Court. Anastaplo went on to be a law professor for many years, and died two months ago. (Here is an obituary, here is a remembrance by a former student, and here is a 2012 profile discussing whether he was “too stubborn for his own good.”)

In any case, this is from Black’s dissent:

This record shows that Anastaplo has many of the qualities that are needed in the American Bar. It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law– men … who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.

But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free.

Black felt so strongly about the dissent that he asked to have it read at his own funeral.

Nowadays, I don’t know whether the greatest challenges to young lawyers still come from the government or from other kinds of pressure. Which brings me to this excellent recent speech by Norm Pattis to new members of the Alabama bar. It’s short and hard to adequately quote, but here is a small portion:

You are about to embark on a career as an ambassador for other people’s sorrows. Nothing you have studied in law school has prepared you for what you will see, and for the pressures you will endure as a practitioner. You have sacrificed much to earn the right to practice law, and your motives for being here are no doubt both noble and base. You can do well by doing good. But first you must learn to survive, and that will take all the cunning of Odysseus, a man, you will recall, of many sorrows.

Learn to listen well not just to what your client says, but to why they are saying it. Only law professors talk about bargaining in the law’s shadow; practitioners know that the darkest shadows cast in a courtroom come from fear, anger and dread – these emotions animate most litigants, whether it be in a child custody dispute, a dispute about unfulfilled promises, or a claim arising from a personal injury. These dark furies will become close acquaintances of yours.

They will kill you if you let them.

Normal empathy just can’t withstand a daily onslaught of raw and ferocious need. You must learn to listen while protecting yourself. Empathy is wonderful; self-preservation, the keeping of boundaries between yourself and your client, is critical. Suicide, alcoholism and drug use are temptations to which too many lawyers succumb. Soon you will understand why.

[F]ight to defend your client’s interests. It is what we do as lawyers. It is all that we contribute to an imperfect world cascading from crisis to crisis. It is a noble calling that will break your heart in the end. And that is at it should be, for as much as we like to pretend we are above it all, mere observers of the sorrows of others, our lives are one of sacrifice. We are made of the same unstable clay in which our clients are cast. Never forget it.

You can read the whole thing here.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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David Bernstein · April 17