SIDEBAR Spring 2018 - 19

MONTGOMERYBAR.ORG

In Smith v Allwrite, Hastie and Marshall challenged
Texas' white primary system. In 1946, Texas was
overwhelmingly Democratic and victory in the Democratic
primary election assured the winning candidate victory in
the general election. As African Americans were denied
admission to the Democratic Party, the practical effect of the
legislative scheme was the absolute disenfranchisement of
African Americans. Texas maintained that the proceedings
of the Democratic Party were not state actions and, as
such, were insulated from challenge under the 15th
Amendment. Hastie and Marshall successfully argued
that, since the Texas primary system was an integral part of
Texas' election procedure, Smith had the right to vote in
the primary. Promoting substance over form, the Supreme
Court established the "public function" concept that
certain activities, traditionally performed by the state are,
by definition, state action and, as such, are subject to the
mandate of the 15th Amendment. The decision in Smith,
engineered by Hastie and Marshall, formed the basis upon
which the landmark decisions in Shelly v Kramer, Brown v
Board of Education, and Baker v Carr would be based.
In 1949, and in recognition of his public service,
President Truman nominated Hastie to the United
States Court of Appeals for the Third Circuit, the first
African American to sit on a federal appellate court. Not
surprisingly, there was angry opposition in the United States
Senate. Considering Hastie's sterling academic credentials,
professional competence, and public service, the opposition
was clearly race-based. Truman, himself a native of Missouri,
demonstrated a genuine profile in courage by sticking by his
nominee.
There may have been more fiery and determined
presidents - Andrew Jackson and Theodore Roosevelt come
to mind - but when his mind was made up, Truman was
implacable. Over the objection of George Marshall and the
State Department, Truman recognized the state of Israel; he
dismissed for insubordination the iconic General Douglas
MacArthur; and by executive order, he abolished segregation
in the armed forces.
On November 2, 1950, Hastie was confirmed. When
he commenced his judicial service, the Third Circuit was
dominated by two giants of the federal judiciary: The
Honorable Albert Maris and The Honorable John Gibbons.
They were activist jurists who deemed the federal courts
as appropriate venues for the promotion of social change,
especially when the legislative branches, federal or state,
failed and/or refused to address social ills. Despite Hastie's
reputation as a trailblazing government administrator and
lawyer, Hastie was careful - almost cautious - to never
permit his decades-long commitment to racial justice to
bleed into his jurisprudence. Hastie's crusading stopped at
the door of the courtroom.
Hastie was insistent that it was not the function of the
judge to advocate for anything - that having and advancing

ATTORNEY DISCIPLINARY
AND ETHICS MATTERS
STATEWIDE PENNSYLVANIA MATTERS
NO CHARGE FOR INITIAL CONSULTATION

Representation,	consultation	and	expert	testimony	in
disciplinary	matters	and	matters	involving	ethical	issues,
bar	admissions	and	the	Rules	of	Professional	Conduct

James C. Schwartzman, Esq.

*	 Chairman,	Judicial	Conduct	Board	of	Pennsylvania
*	 Former	Chairman,	Disciplinary	Board	of	the	Supreme	
Court	of	Pennsylvania
*	 Former	Chairman,	Continuing	Legal	Education	Board	
of	the	Supreme	Court	of	Pennsylvania
*	 Former	Chairman,	Supreme	Court	of	Pennsylvania	
Interest	on	Lawyers	Trust	Account	Board
*	 Former	Federal	Prosecutor
*	 Selected	by	his	peers	as	one	of	the	top	100	Super	Lawyers	
in	PA	and	the	top	100	Super	Lawyers	in	Philadelphia
*	 Named	by	his	peers	as	Best Lawyers in America	2015	
Philadelphia	Ethics	and	Professional	Responsibility	Law	
"Lawyer	of	the	Year,"	and	in	Plaintiffs	and	Defendants	
Legal	Malpractice	Law
1818 Market Street, 29th Floor * Philadelphia, PA 19103
(215) 751-2863

a jurisprudential agenda was the antithesis of the judicial function.
In accordance with Frankfurter's dicta, a judge must do nothing but
listen carefully, answer wisely, deliberate thoughtfully, and decide
impartially. He authored over four hundred opinions for the Court.
The opinions were crisp, tight, persuasive, and sturdy. There were in
the opinions few literary flourishes.
As had occurred during the early 1920s, the threat of
international Communism came to dominate the national discourse.
The investigation, arrest, trial, conviction, and punishment of the
Rosenberg spy ring fanned the fires of super patriotism. There
were issues of loyalty oaths, academic freedom, freedom of speech,
censorship, black lists, and Congressional hearings that ran
roughshod over constitutional liberties.
In United States v Kuzma, the government arrested a number
of Communists and charged them, under the Smith Act, with
conspiracy to overthrow the United States government. The
defendants generated so much antipathy that Philadelphia lawyers,
fearful for their practices, refused to represent the defendants. In
an act of political courage, Thomas McBride, Esquire (later to serve
as Pennsylvania Attorney General and Justice of the Pennsylvania
Supreme Court), recruited a team of very able lawyers who agreed
to represent, pro bono, the defendants who were viewed as anarchist
continued on next page

SPRING 2018 19
https://montgomerybar.org/
SIDEBAR Spring 2018

Table of Contents for the Digital Edition of SIDEBAR Spring 2018
