Saturday, June 19, 2010

Vandervelde on In re Summers

Lea S. Vandervelde, University of Iowa College of Law, has posted A Singular Conscience: In re Summers, which also appears in Employee Rights and Employment Policy Journal 14 (2010): 153-206. Here is the abstract:
This article tells the story behind In re Summers, 325 U.S. 561 (1945) in which Clyde Summers was denied admission to practice law in Illinois based on a finding of unfit character because he elected conscientious objector status and declared that he could not kill another human being. Summers initiated his own appeal and the U.S. Supreme Court upheld the Illinois decision reaffirming that admission to practice law could be denied on these grounds. The story richly illustrates the circumstances of an individual taking a different course because he senses ideas that have not yet become generally understood. Such persons of singular conscience do not fit the categories of logic, law and convention that have gone before, as an analysis of the case demonstrates.

This long neglected decision has never been overturned. The decision permits states to single out principled individuals and disqualify them from occupations. Also at stake is the free exercise of religious conscience.

Secondly, the case invokes an ancient understanding of what it means to be a lawyer, “the lawyer-warrior.” The discursive exchange at the controversy’s heart can be read as marking the emergence of a new, contrasting view, “the lawyer-peacemaker.” The “lawyer-warrior,” a conventional model for attorneys in an adversarial system, had a significant hold on the minds of the Board on Character and Fitness. Although Summers did not prevail, in the process, at an early date, 1943, he articulated a remarkably modern view of the lawyer as problem-solver.

In 1873, sixty years before Summers, the same state declared Myra Bradwell unfit to practice law because she was a woman, a decision also upheld by the U.S. Supreme Court in Bradwell v. Illinois. The two cases share an interesting connection: the prescribed role for the lawyer-warrior in the adversarial system is quintessentially male. If the test is the willingness of a person to take a human life, Summers justifies excluding women from the bar and many men as well.