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Warren E. Burger: We will hear arguments next in NAACP against Claiborne Hardware. Mr. Cutler, I think you may proceed whenever you are ready. Lloyd N. Cutler: Mr. Chief Justice, and may it please the Court, the Petitioners in this case are the National Association for the Advancement of Colored People, and 91 black citizens of Mississippi. They seek reversal of a Mississippi Supreme Court judgment against all Petitioners, jointly and severally, awarding money damages and an injunction because of a civil rights boycott against white merchants in Mississippi. The Claiborne County boycott began in 1966. At that time, discrimination against black citizens was still severe. The black community, including the local chapter of the NAACP, petitioned to correct these conditions, and participated in a biracial committee appointed by the mayor of Port Gibson, the county seat. When the committee failed to satisfy these grievances, the boycott was started. Its purposes were to end racial discrimination in employment by the merchants and the local governments, and to desegregate the school system and other public facilities. In our view, this case raises two constitutional questions. One is whether a boycott of business enterprises in support of a petition for redress of civil rights grievances conducted by non-violent means, such as speeches, marches, distributing leaflets, picketing, and social ostracism, can constitutionally expose all participants to liability for a common law conspiracy and a damage judgment for all business losses caused by the boycott merely because some episodes of violence by some participants were found to be present during its course. The second is whether, even assuming the constitutionality of such a damage award, all the active participants may be perpetually enjoined from peaceful activities in further pursuit of the boycott. Speaker: Do you mean by that, Mr. Cutler, that any damage factor particularly should be focused on the particular individuals identified as connected with violence? Lloyd N. Cutler: On particular individuals, Mr. Chief Justice, and on the particular portion of the business losses resulting from those acts of violence. Yes, sir. Speaker: In other words, you are saying the particular acts, when and if identified-- Lloyd N. Cutler: Yes, sir. Speaker: --must be shown to have had this consequence on the business losses. Lloyd N. Cutler: That is correct, Mr. Chief Justice. We believe the Respondents have sidestepped both of these issues. They have virtually conceded the second issue, the injunction issue. Speaker: On that, Mr. Cutler, didn't the Supreme Court of Mississippi say that you had waived that point by failing to argue it? Lloyd N. Cutler: They said it was moot, Justice Rehnquist. We did argue against the entire judgment below on... including the injunction, on First Amendment grounds. When the Supreme Court of Mississippi said that the... we had admitted the injunction was moot, we filed a petition for rehearing saying we had not admitted that, that the injunction was still in effect, and that it was an unlawful injunction for overbreadth, and our petition for rehearing was denied, and the injunction remains in effect subject, of course, to the stay of the Fifth Circuit which will terminate when this Court has passed on this case. Speaker: So you contend you did argue the merits of the injunction in the supreme-- Lloyd N. Cutler: We say we did, and we certainly argued it on the rehearing. There would be no ambiguity about that. We argued-- Speaker: --Was there ambiguity the first time? Lloyd N. Cutler: --We argued the First Amendment invalidity of the entire judgment below in our briefs below. The Respondents have said they would be willing to delete from the injunction any restraint on peaceful boycott activities, so that seems to be out of the case. As for the first issue, they say that the Court should not pass at this time on whether the First Amendment protects the right to engage in peaceful boycott activities because in their view this boycott was not peaceful and violence was pervasive and central to its success, and to sustain this charge, they go far beyond the actual findings and conclusions of the courts below. The courts below, we say, did not find violence to be pervasive or central to the success of the boycott, and you will not find those terms or any fair equivalent in their opinions. The Mississippi Supreme Court cited 12 incidents over a period of three years to support its conclusion that "force, violence, and threats. " were "present" during the course of the boycott and were "part of the boycott activity" that contributed to its success, and that this was enough to make all active boycott participants liable at common law for all the business losses suffered by the merchants. Before I turn to those 12 incidents, I would like to outline our basic legal position in three simple points. The first is that this nation was born out of a series of colonial boycotts against British merchants in support of petitions to the British king and Parliament for the redress of grievances. The need to organize and enforce these boycotts led to the First Continental Congress, and provided the cohesion that ultimately enabled the American colonies to win their independence. These boycotts were enforced by many of the same methods of surveillance, denunciation, and ostracism used in Claiborne County, and occasionally there were episodes of violence, such as the Boston Tea Party. Thomas Jefferson, John Dickinson, and other leaders of the colonial boycotts regarded them as lawful methods of petition for the redress of grievances, while conceding that the perpetrators of unlawful acts, like the Boston Tea Party, should be held answerable for their conduct, and we maintain that this boycott was a lawful method of petition, while conceding that if any Petitioner were found to have committed or to have threatened to commit an act of violence to enforce the boycott, that Petitioner would be answerable for the proven consequences of his act. My second point is that if some acts of violence are interspersed among other peaceful acts, such as meetings, parades, speeches, and even such measures of non-violent enforcement as surveillance, denunciation, and ostracism, as was true of the enforced colonial boycotts, and we submit it is the most that was true in Claiborne County, then only those found to have committed the violent acts may constitutionally be held liable for anything, and that even they may be held only for that portion of the merchant's business losses that is reasonably attributable to those violent acts. While I suppose one could hypothesize a boycott in which no customer would have withheld his patronage, but for the violent acts of the organizers, as Justice Brennan hypothesized in the Gibbs case, so that those who committed these acts would be liable for all the business losses of the merchants, that hypothesis, we say, is very far from the facts of this case, and in the Mississippi Supreme Court, the Respondents conceded that "most of the witnesses" that they themselves had called to testify had said "they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott. " My third point is a corollary of the first two. We submit that no one may be held liable constitutionally merely for organizing or participating in a political boycott in support of a petition for the redress of grievance, or for enforcing it by non-violent means, or for continuing to support it even though some other participants have been engaging in acts of violence. Our first four Presidents, all three authors of The Federalist Papers, and many other Framers of the Constitution participated in several boycotts of precisely this kind. They believed them to be a lawful method of supporting the right of British subjects to petition for the redress of grievances, and when they adopted the First Amendment, we submit, they could not possibly have intended to exclude from its protection the very means of petition that they themselves had employed. Indeed, after the revolution, and at the very time that the Constitution was being ratified, John Jay and Alexander Hamilton were leading a boycott enforced by similar non-violent means against New York City merchants who engaged in the slave trade, and against newspapers which carried the advertisements of those merchants. I would also add that we are not... we don't think this case raises, of course, the issue of whether such boycotts are a wise political tactic, but only whether they are protected by the First Amendment, and we don't think this case presents the issue of the constitutionality of a secondary political boycott against neutral parties, even though colonial history would support that, because these merchants were deeply involved both in their own discriminatory policies and those of the city and county governments, and because the Mississippi Supreme Court adopted a theory of liability which expressly stated it didn't matter whether the boycott was primary, secondary, or anything else. Nor do we think this case presents the issue of the constitutionality of a boycott that is unrelated to a petition for the redress of grievances against the government. Now, I would like, if I could, to come back to the 12 incidents. They are summarized at Pages 28 through 33 of our main brief. In only one of those 12 incidents did the court below find that an identified Petitioner committed a violent act to enforce the boycott. In that incident, Petitioner James Bailey testified that he had trampled the flower garden of a black woman because she patronized white stores, despite his warning not to do so, as she continued to do thereafter. And the trial record shows, and this trial was... began in 1973, Mr. Chief Justice, that no one else in the town had ever heard of that incident until Bailey brought it up on the witness stand, and it could not possibly have affected the success of the boycott. Witness after witness was asked, once Bailey said this, did you ever hear of this incident, and they all said no. There were two other incidents involving acts of violence that were charged to identified Petitioners, but in neither case did the courts below make a finding that the Petitioner, any Petitioner had committed an unlawful act. Speaker: I take it, Mr. Cutler, that you are saying that a secondary consequence is not an adequate basis for recovery, that is, that this man who committed this violent act on the local resident in order to persuade her or force her into refusing to deal, that kind of a secondary consequence is not to be a basis for recovery. Is that it? Lloyd N. Cutler: No, I am not saying that, Mr. Chief Justice. If any boycott participant committed an unlawful act, be it violence or any other normal tort or crime, and that incident had the effect of persuading or coercing a substantial number of people not to participate in the boycott and therefore contributed materially to the success of the boycott, we would admit that individual is subject to liability for the proven damages of the unlawful act he committed. Speaker: But then relating it to this particular episode, that would mean only the loss of the custom of this particular woman whose garden was damaged. Lloyd N. Cutler: Except that she continued to trade at the white stores, as the testimony shows. Speaker: That evidence is undisputed? Lloyd N. Cutler: Yes. The only evidence is Bailey's evidence, and no evidence to contradict that was offered. Speaker: In other words, whatever the effort was to persuade her-- Lloyd N. Cutler: That's right. Speaker: --the record shows it did not succeed. Lloyd N. Cutler: He was asked by... Bailey was asked by Mr. Pyles, did she continue to trade at the white stores? Answer: Yes. That is in the transcript. Speaker: Mr. Gilmore, was... rather, Mr. Cutler, wasn't the Gilmore shooting incident identified with one of three of the Petitioners? Lloyd N. Cutler: The Gilmore shooting incident is the next one I am coming to, Justice Stevens. There were three... three of our Petitioners who were prosecuted and on a first trial convicted of that offense, but that conviction was reversed because of discrimination in selection of the jury. On a second trial, the jury hung, so there was no jury verdict, and neither the chancellor nor the Mississippi Supreme Court made a finding that the three Petitioners, who of course had denied in their trial any participation, had in fact committed the act. Speaker: Taking up your analogy to the Boston Tea Party, if the London merchants could identify only one of the members of the Boston Tea Party, but did identify him, and demonstrated that he had damaged one case of tea, could he be held, in your view, responsible for all the loss of tea? Lloyd N. Cutler: All the tea on the ship, yes. I think no question. And indeed, you will find in the papers of the First Continental Congress, in the so-called Address to the British People which accompanied the boycott resolution in the Continental Association, a statement that the perpetrators of the Boston Tea Party may have been guilty of a trespass, and that the courts of Massachusetts Bay were open, but instead of that, the British had responded by restricting self-government in Massachusetts Bay and passing the so-called Intolerable Acts. Speaker: Mr. Cutler, how about the threats of violence, if you trade with these stores, I will break your neck, or beat you up, or whatever it is? Lloyd N. Cutler: Let me come directly to that, Justice O'Connor. I will skip over the others of the 12 episodes. They are covered in our brief, and you will see some of them are not violent at all, and the last of them is the NAACP providing counsel to persons arrested in the course of the boycott activity, but let's go directly to the remark of Charles Evers, who was a leader of the boycott, and an NAACP local secretary at the time. There was testimony of a remark by Evers in the course of a long speech, "If we catch any of you going in any of them racist stores, we're going to break your goddamn neck. " Some of the testimony places that speech both in 1966, or that remark in 1966, when the boycott began, and also in 1969, in a speech given two days after the shooting of a black youth by a white policeman that had caused great disturbances in the town. There is no tape, film, or copy of that remark or the speech in which Evers made it in the record, but there is testimony, there is testimony, of course, as I said, and Evers has admitted making the remark, and Respondents have also relied on threats that they read into another speech that was given on April the 19th, the night after the shooting of the black youth by the white policeman, which is in the record, and on which the Respondents now rely. We urge you, Your Honors, to read that speech. It is at Page 85 of the Joint Appendix. It catches the flavor and the currency of the moment, and it graphically describes the grievances of the black citizens of Claiborne County 13 years ago. Its main thrust was to persuade the crowd not to engage in violent responses because of this shooting against the "white brothers", as Evers called them, but to persevere with the boycott. The remark, the 1969 one, at least, which is the only one there is any real proof of, was made in the emotional aftermath of the killing of that black youth by a white policeman, and you will see from the speech that is in the record how unjustified the black community thought that shooting was, but most importantly, Justice O'Connor, that there is no evidence that either of these two speeches of Mr. Evers had any effect on the boycott. The two I am speaking of, April 19th and 21st, 1969, occurred three years after the boycott began and after all the other eleven incidents described by the chancellor had occurred. They couldn't have led to those incidents, and they couldn't have had a major effect on the success of the boycott, which was already three years old. Speaker: Did the courts, state courts find to the contrary? Lloyd N. Cutler: The state court concluded that the black people had believed Evers after quoting that remark. Speaker: So the courts didn't agree with-- Lloyd N. Cutler: The court drew a conclusion that remark had had an influence, Justice White. Speaker: --Well, it made a finding of it. Lloyd N. Cutler: I am not sure you could call it a finding. Speaker: Well, it is as much of a finding as yours is. If theirs is a conclusion, yours is, too. Lloyd N. Cutler: That might... I would have to concede that, but in support of mine, there were 20-- Speaker: Well, your argument is, though, that just on the record their conclusion is unsupportable. Lloyd N. Cutler: --That is correct, but there is a duty, I believe, to which Respondents agree in cases like this for this Court to make an independent examination of the record. Speaker: Well, to what extent on a purely factual issue should we go beyond the findings of two courts? Lloyd N. Cutler: I think in almost all of these constitutional cases involving the exercise of First Amendment rights, Justice Rehnquist, the Court, this Court has gone into the record behind such findings, as in Edwards against South Carolina, and both sides conceded here that you should go into the record that way. What I want to point out is that 22 black witnesses were called by the merchants and asked about whether they had ever heard of the Evers remark about breaking necks. Sixteen of them said that they had never heard of it at all, and six said they had heard of it only in 1969, three years after the boycott began, and none of the many black witnesses called by these merchants testified as to any fear of physical violence because of the Evers speeches. The Respondents have only cited to you four instances in which anyone testified about fear of punishment or discipline, and the context of at least two of those statements shows that they were speaking of fear of denunciation and ostracism. Speaker: Mr. Cutler, what do you suppose our standards for reviewing this constitutional fact should be? Should it be clearly erroneous, or we arrive at an independent judgment of the record, or what? Lloyd N. Cutler: The words of Edwards against South Carolina are that this Court should make an-- Speaker: Independent judgment? Lloyd N. Cutler: --independent examination of the record, but I would submit to you, Justice White, that if you took the 12 episodes on the face of what the two courts below said about those episodes, the facts as they described them, you cannot conclude that what is described in those 12 episodes was pervasive or central to the success of this boycott. Speaker: Mr. Cutler, with reference to the timing that you seem to emphasize so much, is it not true that whether we look at the Boston Tea Party, or prolonged picketing in a union-employer conflict, or a situation like this, that there needs to be frequent exhortation by those sponsoring the boycott, the picketing, in order to keep it going? Isn't that a perfectly normal part of the process? Lloyd N. Cutler: I would certainly call it a normal part of the process. Unfortunately, there are times when violence becomes part of the process, and none of us are trying to defend that. The NAACP has a very long record against violence. Speaker: Well, I was focusing... wanted you to focus on the fact that some of these people heard about these statements of Mr. Evers, and some did not, and some heard of them long afterwards. There must have been a number of exhortations, including those in the record and many outside the record, to keep a boycott alive. Lloyd N. Cutler: To keep the boycott going, and there is no doubt there were threats in the sense of Justice Holmes' sense that whether a threat is unlawful depends on what it is you threaten. There were undoubtedly threats that if you went into the white store, your name would be read out in church, you would be denounced, and you would be socially ostracized. Speaker: And you say that is a First Amendment right. Lloyd N. Cutler: We say that was precisely the function of the Committees of Correspondence formed by the First Continental Congress, and it was... it is so wrapped into our history that is a... not only a boycott, but that type of enforcement of a boycott is a legitimate means of petitioning for the redress of grievances. We do not see how the First Amendment could be read to the contrary. I think I have just a couple of minutes left, Mr. Chief Justice, and I would like to save that for rebuttal. Warren E. Burger: You may reserve. Lloyd N. Cutler: Thank you, sir. Warren E. Burger: And I think we will resume at 1:00 o'clock, and not ask you to divide the argument. Mr. Rees, I think you may proceed whenever you are ready. Grover Rees, III: Mr. Chief Justice, and may it please the Court, this is a dispute about the facts. Because the facts are so important, I must deal at the outset with a matter that I do not relish getting into. Petitioners have made it an important part of their case-- Speaker: Excuse me, Mr. Rees. Is it a dispute about the facts or about the meaning of the facts? Grover Rees, III: --Well, we believe it is a dispute about the facts. We believe it is also a dispute about what the court found. We believe that Petitioners have made a number of statements in their reply brief that make it look as though we simply made false statements about the facts and about what the courts found in our briefs, particularly about the record. We will try to deal with some of these matters in the argument, and if the Court wishes to request a supplemental brief on these new statements about what is in the record, we would be very happy to supply one. Assuming that the Court does desire a supplemental brief, though, we particularly urge you not to rely on any of the Petitioners' assertions in the reply brief that things are uncontradicted in the record, because... because those things aren't uncontradicted in the record. We stand by everything that we said in our brief. Fortunately, most of the Petitioners' assertions about the record are called into question by a reading of the opinions below. The Petitioners say that the boycott was peaceful and voluntary, but the state courts found that it was violent and coercive. The Petitioners say that the NAACP never condoned violence, there is nothing in the record to suggest that they did, but the courts found that violence was in fact promised by the field secretary of the NAACP and that the black people of Port Gibson did not regard this as harmless political hyperbole. Violence was in fact delivered before, during, and after the period of time during which he made his statements. Speaker: Is there some finding about how many people heard about the field secretary's statements? Grover Rees, III: The court did not engage in the kind of factfinding that the Petitioners seem to think that they had to engage in. They didn't say, we find on Page 12-352 that so and so was scared by Evers. Speaker: What did they find? What did they find-- Grover Rees, III: Well, the statement was-- Speaker: --about the impact of Mr. Evers' statements? Grover Rees, III: --The statements that I think are most relevant in the court opinion... You have 33 pages that say the facts in the record. There are many things in there that I think are findings that they don't think are findings, but the two most relevant statements are that the field secretary of the NAACP promised physical violence on at least two occasions, and that it is evident that black people believed him. Speaker: Could you refer... are you reading from something? Grover Rees, III: Yes, that's a... well, that's a paraphrase. I can find it. Just a moment. Speaker: What page of the record? Grover Rees, III: Well, that's not on the... that's not in the record. That's in the trial court opinion. Speaker: Okay, that's in the-- Grover Rees, III: And that is... I'll get you the page in... in just a moment. That's on Page 39-B, I believe, in the appendix, in the appendix to the cert petition. Unquestionably, the word got around-- Speaker: --Mr. Rees, is it correct, though, that at least one of those two statements was in 1969? Grover Rees, III: --One was in 1966 and one was in 1969. It said at least-- Speaker: Do you rely on the one in 1969? Grover Rees, III: --Yes, we do. Speaker: For what? Grover Rees, III: Well, first of all, we rely on it as evidence to support the many other contentions in the record, that when he said things like that people were going to be disciplined, and when they were going to be chastised, and so forth, that he didn't mean that people were going to come in the middle of the night and call them bad names. Secondly, this was an ongoing-- Speaker: Did the district court take the view that that was enough? Under the district court's theory of the case, as I understood it, that would have been enough, that fear of denunciation and abuse of that kind would have been enough to... all that they had to prove. Grover Rees, III: --I think that's true, because the district court believed that a secondary boycott, even though it is for political purposes, was enough for liability. Now-- Speaker: So the district court did not have to connect the violence, did not have to prove fear of violence in order to sustain the judgment of-- Grover Rees, III: --No, they didn't, but they did. They didn't have to, but they did. They made-- Speaker: --Does the 1969 statement... I don't understand how you can rely on the 1969 statement then. Grover Rees, III: --The problem is that as the Chief Justice pointed out, there aren't many times when the leader of a group like this comes out and says, yes, I am in favor of the violence, and we ought to go ahead and do it, and there was testimony in the record from other people, from witnesses, that they heard him say that if you go into the stores, that you will be taken care of, and you will be disciplined. In his testimony he said, oh, we just meant we were going to give them a good tongue-lashing, and the Petitioners rely on that in their brief. Now, I think that the state court used that because it was the most vivid instance. The boycott did continue. In fact, it intensified in April of 1969. The fact that those particular 12 incidents... actually, we count 15 in the trial court, in three pages of the trial court's opinion, happened before that are irrelevant. The court found that on many occasions people's purchases were taken away from them, and so forth, and this was an ongoing course. The Petitioners would have you look only at those three pages in the trial court opinion, and those are the only evidentiary facts that they want to be allowed to be supported, to be supportive of the ultimate conclusion in the state supreme court's opinion that there was the agreed use of violence. We believe that the proper standard of review is that the Court should look at the whole record, should look at everything to see if there was evidence from which a reasonable trier of fact might have concluded the conclusions that the state court in fact made. You see, on the one hand, they say, well, this is just anecdotal, and this is just sporadic, but on the other hand, when the trial court ties it together and says that unquestionably many black persons had their volition overcome, and they were forced against their personal wills not to trade with the white merchants, they say, oh, well, there is really no evidence to support that, because we can distinguish all of those 12 incidents. We don't believe that is the proper standard of review. We do think that the threat is relevant both in and of itself, because he did promise to deliver violence, and that scared people. The boycott continued, and it is our contention that if the design of the boycott, if what the boycott was about was to stop people from going in the stores because they were scared that they would be beaten up and shot at and so forth, that that is enough, and that continued after April, 1969. And we think it is also very relevant to show that when he said, for instance, earlier, he said, you had better not bother to go get the sheriff, because the sheriff can't sleep with you at night, that he didn't mean that the sheriff... that people were going to come in the middle of the night and call people bad names. He meant that bad, violent things were going to happen to people. He was trying to instill fear in them, so that they would honor the boycott. Speaker: Well, is it your position that by whatever means, a boycott involves the sponsors of the boycott putting fear into some people as a predicate for damages? Grover Rees, III: Well, actually, we don't believe that. They claim in their reply brief that we concede that if it was a non-violent secondary boycott, that it was protected First Amendment activity. We don't think that the Boston... that's not true. We don't concede that. This Court's opinions, you've got different lines of opinions that would suggest different results on that issue. Certainly the labor secondary boycott opinions suggest that this activity, picketing in support of a secondary boycott, is something less than absolutely protected First Amendment activity, because if you can curtail that activity because it foments labor unrest, which was the basis-- Speaker: Even though not violent? Grover Rees, III: --Yes, even non-violent labor picketing. We don't think that it is necessary for the Court to reach that issue, because the state courts here found that it was violent, and they found that the violence was not sporadic, that it was... that it was continuous, that it was pervasive. We think that if you read the 33 pages in the trial court's opinion, where the judge says, these are the statements, the facts in the record, is what it says, that the trial judge would be very, very surprised to learn that he didn't find that violence was central to the success of the boycott. Speaker: Well, he said, unquestionably, the word got around that physical harm as well as vilification and ostracism could very well be the lot of any black person. Grover Rees, III: He also said that unquestionably, in terms of the damage that was caused, he didn't name specific people who were frightened, but he said that the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were compelled against their personal wills to withhold their trade and business intercourse from the complainants. That is on Page 39-B, and that looks like a finding to me. The... the Petitioners' contention that these things aren't findings really boil down to, as do all of their other arguments, to the one argument that they really have, which is that this was a civil rights boycott, and civil rights boycotts are entitled to strict scrutiny. I think it is evident from the Petitioners' case that strict scrutiny has replaced banging on the table as what an advocate does when the law is against him and the facts are against him. In this case, it doesn't matter whether the obstacle they are facing is the fact that the Court usually respects the reasonable findings of state courts, or the rule that in a civil case the preponderance of the evidence is the test that is usually used, or the fact that intent can be inferred from conduct, or the very limited First Amendment protection to secondary picketing or to threats to break people's necks. In every one of those cases, Petitioners remind this Court that this is a civil rights case, and that there is no such thing as a fact or a finding or a rule of law that can't be avoided by the application of the right level of judicial scrutiny. The problem that we find, the most serious problem that we find with this contention is that everybody who ever engages in any kind of concerted action, whether it is labor unions or other political groups whose goals are not the goals of the NAACP, or anyone else, believes that he is fighting for his civil rights. Now, the rules, the kinds of substantive rules that they are arguing for here, whether it is First Amendment protection of certain kinds of threats or whether it is ultra-strict standards of review where you have to make the state courts say things in certain words before you have a finding, those are not susceptible of general application. So if you hold for the Petitioners in this case, the holding will have to rest not on what was done but on the status of those who did it. They say, in fact, we are the NAACP and we do not engage in violence, we do not engage in constitutionally unprotected conduct, and therefore the state courts must have been wrong, and they suggest a number of devices, a number of strict scrutiny devices, a number of extraordinary tests for determining intent, and so forth, by which the Court might reach that decision. We think that they should fail. If the court, if the state courts were right about the facts, then they were right about the law. The First Amendment does protect advocacy of opinions. It protects that advocacy no matter how controversial the opinions are, no matter how vigorous the advocacy, but it does not protect forceful and credible threats of violence. The fact that some of the Framers were willing to countenance 14 or 15 months before the American Revolution certain kinds of actions against the British, indeed, some of them were willing to countenance the Boston Tea Party itself, is no evidence that if you have a Boston Tea Party, or that if you have something that happened in 1773 against the British, that they intended to constitutionalize that, that in 1989 and in 1866 they intended to make that a binding rule on the states and say, you can't prohibit this kind of activity, that is not an adequate constitutional test. The cases that are cited by Petitioners in their brief, the Watts case, involved a highly conditional, an expressly conditional threat to kill the President, which was a highly improbable action. There was no evidence that the President had any reason to be afraid that he was going to be killed. In the Brandenberg case, you had 12 people out in the middle of a field at night talking to a television newsman, and saying that if Congress doesn't change its policies one of these years, we might have to consider something called revengence. That is not what this case was about. There was no evidence that Congress was afraid in that case. This case has nothing to do with abstract teaching. It has nothing to do with the abstract possibility of violence at a hypothetical future time. You had several hundred people in a small town, setting themselves up as the law outside the law. Their leader had espoused on many occasions the philosophy that every race has a right to its own discipline, and the designated enforcers of the boycott, the court found that the Black Hats, this group of... a paramilitary organization of 50 young men who watched the stores and who participated themselves in many of the acts of violence were the designated enforcers of the boycott, designated by the NAACP. Contrary to what the Petitioners say in their brief, Evers testified that he knew about these people. He said he didn't know about their constitution and bylaws, about whether they were a member of a chapter of a regional organization. He knew they were there. He said that he would... there was testimony that he had referred to them 100 times as his enforcers. These people had participated in violent acts pursuant to the philosophy that their leader had espoused. The incident, which was only the most vivid of a number of incidents, where he'd sit across from a row of stores and said, if you go in those stores, we are going to break your damn neck, suggests that this is the kind of case that John Stuart Mill was talking about when he said that an opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob before the house of the corn dealer. We would like to suggest that Mill was right about freedom of expression. Speaker: Do you feel, counsel, that there is specific evidence tying each one of these remaining defendants to these particular incidents? Grover Rees, III: Well, we do believe that there is evidence. We believe that there is evidence to support the trial court's findings. Speaker: I am asking... that isn't what I asked. Grover Rees, III: Yes. Speaker: I asked whether you feel there is specific evidence that ties each one of these incidents to these particular remaining defendants. Grover Rees, III: I do believe that, Your Honor. Speaker: And I think that maybe I will take you up on your suggestion that you file a reply brief pointing out where in this voluminous record such evidence is present. Grover Rees, III: We will do that, Your Honor. We would like to-- Speaker: Well, did the state courts find that to be the case, or not? Grover Rees, III: --They did. They said that what makes this a conspiracy... this was the state supreme court. They said, the... their conclusion, their holding was not-- Speaker: Well, they didn't expressly tie each incident-- Grover Rees, III: --They did not go through-- Speaker: --to each of the named people who were-- Grover Rees, III: --No. They did not do that. Now, they said that they... they said in their holding-- Speaker: --But that is what you are being asked to-- Grover Rees, III: --Well, it is going to be a substantial task. I am aware of that. But the Court has asked us to do it, and we are going to go through the 16,000-page record and find all the places that we can find. We would really like the Petitioners to go through two. Speaker: --Well, it is a substantial task, but I think it is counsel's task, not this Court's task. Grover Rees, III: You are right, Your Honor. We believe that... we believe actually-- Speaker: So far, I get nothing but generalities from your Mississippi courts and from your brief, and I would like something specific. Grover Rees, III: --We will give it to you, Your Honor. In answer to the question about what the court found, they did find that there was the agreed use of illegal violence. Now, that is a conclusion. They said that they had performed an adequate review of the record, and they dismissed 39 of the Petitioners. The Petitioners put themselves in the interesting position of saying that that means they didn't search the record because they granted the Petitioners' motion to dismiss all of those 39 people for the reasons that the Petitioners said to dismiss them. We don't think that there should be any such presumption, and we believe that they searched the record. We believe that if the Petitioners... what the Petitioners did was make in essence a bare no evidence allegation. They said, all these... all these people did was encourage other people to boycott or picket, and they listed people without any reference, any record references. We believe that what they should have done if they wanted to make a case to get this Court to overrule the lower court finding, was to list every reference to every petitioner in the record and what it said, and then to conclude that there wasn't enough evidence. We will be glad to do that. We think they should have done it in the first instance. Speaker: Is it your... the theory of your case that if concerted action was taken which in fact puts certain identified people in fear and apprehension if they traded with these stores, that that is the basis for liability for damages? Grover Rees, III: That is a basis for liability for damages. On the question of the conspiracy theory, first of all, we want to point out that as we think counsel has conceded here, no conspiracy theory is necessary to sustain the state court's judgment against the NAACP. Charles Evers was liable for all the tea on the ship. He did participate in threats of violence. He wanted to injure the business relations of the Respondents by constitutionally unprotected means-- Speaker: Well, that was the whole object. That was the whole object of the boycott, was it not? Grover Rees, III: --That's right. No, but he wanted to do it by constitutionally unprotected means. You see, their contention is that if some people only wanted to do it by protected means, then if it is a First Amendment right to have a secondary boycott, they are protected, and if it is a First Amendment right, and if in fact there were people who were just out there exercising their First Amendment rights, then they have got a good case. But Charles Evers wasn't one of those people, and Charles Evers was acting in his capacity as field secretary of the NAACP. Even under the statement that the ACLU recommends... pardon me, the standard that the ACLU recommends in their amicus brief, which is Section 876 of the Restatement of Tort Second, the joint tortfeasors section, Evers was a joint tort feasor, and Evers was responsible for all of the damage that the people who were participating in this movement that he was participating in did because he took himself out of the First Amendment, and he intended for people to be injured in the way that they were injured. Speaker: Mr. Rees, may I interrupt you with a question on that point? Do you concede that there was some voluntary participation in the boycott, or do you deny that? Grover Rees, III: Well, almost. Of course there was. The Petitioners themselves-- Speaker: Do you say that Mr. Evers is liable for the business damage caused by the voluntary participation in the boycott? Grover Rees, III: --We don't think that is a constitutional question. That... what they are-- Speaker: That is hardly an answer to my question. Grover Rees, III: --Well, yes, we do. Speaker: You do. Grover Rees, III: We think he is liable. We think that they are attempting here to constitutionalize not only the law of conspiracy but the law of damages. They cite a number of-- Speaker: Well, now, just push it to the extreme. Supposing there were 1,000 people who participated in the boycott and refused to purchase anything. One of those persons refused because he was afraid his neck would be broken. The other 999 all say, I would have done it no matter what Mr. Evers says, because I believe in the objectives of the boycott. For how much would he be liable, the whole 1,000? Grover Rees, III: --No, only what you could prove in that case. You see-- Speaker: But I thought you said he would be reliable for the voluntary participation as well. Grover Rees, III: --Well, but what I was... the reason that I think there's a distinction is because the rule of damages that the state courts and that courts routinely apply that also reflects the rule in the Restatement of Torts is the substantial factor test. Now, there was only one boycott here. There was one set of damages. What you would be requiring if you said to the state courts, you have to go back and figure out how much damage there would have been if it had been violent... non-violent and peaceful and voluntary instead of violent and coercive, is, you are asking the courts to indulge in a hypothetical-- Speaker: No, no, that is not fair, because you admit it was partially voluntary. You are not saying, if it were one or the other. I think you have said on your own presentation to us that it was partially caused by violence and partially by voluntary agreement. Grover Rees, III: --We do not... we do not agree that it was substantially voluntary. They use a line in the brief to say, well, most of the... most of the witnesses testified. That's-- Speaker: Well, assume it is substantially violent. Are they nevertheless liable then for the voluntary-- Grover Rees, III: --Well, according to the labor cases, they cite a number of statutory labor cases-- Speaker: --Well, I really want to know the theory, you understand what the theory of the court below was. Grover Rees, III: --I think that in that case, that if there were a few people, and if they put on evidence that... if they had put on evidence of the amount of... the general damage was... there was one boycott, there was one corpus of damages that would be very, very difficult to sever, and in all the other cases that we have been able to find, including the labor cases cited by Petitioners, when that is the case, there is no requirement that the courts sever the damages. In the Mead case that we cite in our brief, the court says, the requirement that something have contributed materially and substantially is enough to prevent windfall recoveries. Speaker: So if it is 10 percent caused by violence and 90 percent voluntarily, I suppose 10 percent is substantial and material, then they are 100 percent liable. Grover Rees, III: I think it might be. Speaker: That would be your-- Grover Rees, III: I don't know what percentage I would cut it off at. Certainly 10 percent would be on the margin. We don't think that question is really presented here. What they really want is, they want to send it back to the trial court and say, even if you find that there was violence, and even if you find that certain Petitioners were chargeable with the violence, you see, this is a separate issue, of course, from can all the Petitioners be charged, even if you find that a certain person was chargeable with the injuries to business relations that were caused by the violence, what you want is, you want to send it back to the trial court, and you want to ask them to do not only a hypothetical head count of what would have happened if it hadn't been peaceful and voluntary, you also want them to go over the psychological vectors within each mind of each individual black person in Port Gibson. There were some people, and they cite in their brief, they say, well, people were afraid of having their names called out, or they basically agreed with the boycott, then the same witness in another place in his testimony... frequently these were the Petitioners themselves... they said, oh, yes, I was afraid. One of the people who said that... who the Petitioners cite as having been afraid of nothing more than having their name called out and being embarrassed also says that she had heard that people had been physically... she had heard that they would take your packages away from you and destroy them, and she didn't want that to happen to her. So, you've got mixed motives on the part of lots and lots of people. I don't even know, as they point out with an exclamation point in their reply brief, one of the Petitioners himself bought a car at a store. He was encouraging other people to boycott and doing things like that, but he did buy a car at a white-owned store, and his car was destroyed. So, I think it would be very, very difficult, and the rule... the Petitioners have a very curious attitude toward labor cases, because when a labor case construing the National Labor Relations Act would help them, they say... they treat it like it was a First Amendment case binding on the states. On the other hand, in a case where... for instance, the Ramsey case, where this Court held that you can prove conspiracy, you can prove an implied conspiracy in a labor context by a preponderance of the evidence, that you can draw inferences from conduct, which is how the conspiracy was found here. In that case, they say, well, that is a labor case, not a civil rights case. Now, it is exactly the other way. They've got it exactly backwards. When the NLRA provides a substantive or a procedural protection for labor unions that is not required by the First Amendment, you can't use that as though it were a First Amendment case, and that is what they try to do on this damages issue. On the other hand, when this Court holds that something is permitted, that conduct can be penalized in a labor context, it strikes me that the burden is on the people who are trying to distinguish that case to come up with a distinction, and I don't think it is enough just to say that this is a civil rights case. Speaker: --Let me take you back to a factual question. What is the population of this town? Grover Rees, III: Several thousand. I think it was 7,500... 27... it has grown quite a lot, actually. It was 2,700, and now it is 8,000, or something like that. Speaker: Well, at the time of these events. Grover Rees, III: 2,700, I think, is a... I can check that for you. I don't have it right now. Speaker: I was just trying to get the proportion of people who participated in this thing. You said very few, but very effectively, but I think you also said there were 50 or 60 of these so-called Black Hats, the monitors, the-- --There were several hundred people who participated in the boycott. There was evidence of deep division within the black community. You mean participating militantly or because they were put in fear, as you-- Grover Rees, III: Their largest meetings... oh, no, more than that participated because they were in fear. Almost everyone participated because they were in fear. I mean, very, very few black people shopped at these white stores during that time. At first, there were a lot. One of the... The secretary of the NAACP, Lesco Guster, testified that at first there were quite a lot of boycott breakers, and that the list was very long that they called out, and after a while there were not very many at all. One of the... there was a division within the black community, and we think that is what this really was about. We think that one group in the black community... one of the demands, for instance, was that you had to appoint Negroes to the board of education, and they had to be Negroes acceptable to the Negro leadership. Many of the black people who... the black people who did testify, who had the courage to testify that... what happened to them in the trial, they had... they tended to have philosophical or personal reasons not to want to go along with this other leadership, which happened to be the leadership of the NAACP, and it was those people who were primarily compelled. I only have a few minutes remaining, and I would like to deal a little bit more with the conspiracy issue, because I do think that that is a problem, although not in terms of holding the NAACP. Agreement was inferred from conduct in this case. Nobody testified that he specifically approved of the violence, but those petitioners who were not members of the Black Hats organization saw the Black Hats on the street. They participated in weekly meetings which were the decision-making meetings about how the boycott was going to be run. Those people, who were the principal source or a principal source according to the trial court of the pervasive fear in the community that caused the success of the boycott were the designated enforcers of the boycott. It seems to me that after the pattern had been established, after you have seen enough times people on the street taking people's names, and sometimes destroying their packages, and then those names are called out, and then bad things happen to those people, and you hear Charles Evers and other boycott leaders saying that these people have to be chastised and disciplined and whipped and taken care of, and they are in fact chastised and disciplined and whipped and taken care of, at some point agreement to what is going on can be inferred from the conduct of somebody who has the right and the power to control that activity. That is-- Speaker: --Do you need to succeed on this submission to hold any of the people against whom judgment was entered? Grover Rees, III: --No. Well, yes, we need to succeed on that contention, I think, to hold many of the 91 people. Speaker: For everybody except Evers, or not? Grover Rees, III: Not for everybody. Well, Evers, I think James Bailey, who ruined the flower garden-- Speaker: Well, everybody except the NAACP, or the NAACP and Evers? Grover Rees, III: --If our statement is not right-- Speaker: About the conspiracy. Grover Rees, III: --that you can infer conspiracy from agreement, you would have to hold only those who were shown personally to have approved of the fear of violence aspect of boycott enforcement, and they... they are arguing for a very high specific intent requirement. Speaker: Well, anybody who actually engaged in violent conduct. Grover Rees, III: Well, engaging in it would obviously be the best evidence that there would be, and you would have Charles Evers liable, you would have the NAACP liable on the respondeat superior, the fact that he was acting as their... as their paid agent and spokesman. You would have, for instance, James Bailey, the member of the Black Hats who destroyed the flower garden. Speaker: But just take Bailey for a minute. What evidence is there that that caused any loss of patronage to anybody? I understood that the woman whose garden was trampled went ahead and continued to buy from the stores in question, and that no one else knew about it. So how would that incident prove any liability? Grover Rees, III: James Bailey testified that he was a... this would be evidence of his approval of the pervasive... of his specific intent to damage the business relations of the merchants. Speaker: Supposing he had that intent, but did he in fact cause any damage by trampling this garden? Grover Rees, III: Well, I think that causation wouldn't have to depend on that act, once you had shown his intent. Speaker: But you can hold him liable absent a conspiracy theory, I thought you were saying. Grover Rees, III: No, but it would be a joint feasor theory. Speaker: Joint with whom? Grover Rees, III: Joint with everyone else. Speaker: Well, it could be a two-man conspiracy. Grover Rees, III: We know... we know that these acts were done. Usually the way that conspiracies work is the way that this one worked, which is, people do things in the middle of the night, and it is hard to identify exactly who did them. Speaker: But here we know what happened. He admitted it. Grover Rees, III: No, but he would be liable also as a joint tort feasor, since he had committed a tort as part of this movement with everybody else. He would be liable for all the damage that was caused as part of that campaign even for other acts that he did not, in which he did not in fact participate. It would not be realistic for him to say, oh, well, I approved of fear and violence as a way of getting Mrs. Butler not to participate, but as far as getting all the other people to participate, it would have been very bad for fear of violence to be used-- Speaker: You are saying that that is just evidence, could be evidence-- Grover Rees, III: --Of his intent. Speaker: --that he sat down with Evers and they both agreed, here's our plan, and let's use violence as much as necessary. Grover Rees, III: Well, that is even more specific than I think-- Speaker: Well, I know, but it is evidence. It is evidence of-- Grover Rees, III: --It is evidence of the fact that he intended to injure the relations, he with these others. Speaker: --But as soon as you say that, it seems to me you are back to your conspiracy theory, and I thought you had said you didn't need the conspiracy theory as to him. Grover Rees, III: Well, no, no, I don't think that is a conspiracy theory. That is why I was reluctant to... I couldn't react very well to Justice-- Speaker: Well, what is the joint tort if it is not conspiracy? Grover Rees, III: --Well, the illustration that the Restatement of Torts gives, for instance, is that five people go into a house, and one of them does one tortious thing, and they all do five different tortious things. You don't need to prove that they sat down in a room and agreed that they were all going to do them. That is, I guess, a kind of conspiracy theory, using the word generically, but it is not covered by the law of conspiracy, and the ACLU, for instance, who don't like conspiracy theories at all, recommend that as the rule that this Court ought to apply to joint tortfeasors. Speaker: Yes, but there your example is, five people jointly destroyed some property. Here one man jointly destroyed... singly destroyed a flower garden. Grover Rees, III: Well, I was... I was hypothesizing that they did five different things. One destroyed one piece of property, and one... I think they say A chokes somebody, and B ties him up, and C steals something, and D destroys something. They would be different items of damages, but that would be sufficient evidence that there was a common plan. Warren E. Burger: Your time has expired now, Mr. Rees. Grover Rees, III: Thank you. Warren E. Burger: Do you have anything further, Mr. Cutler? Lloyd N. Cutler: Mr. Chief Justice, the chancellor of the trial court found that Claiborne County had a population of 10,900 persons, only 2,500 of whom were white, and the chancellor used that to deduce that the white merchants were especially vulnerable to a boycott. So it is 7,500 people who were supposed to have been intimidated by violence and threats of violence in order to make this boycott the success that both courts below found it was. The theory of the trial was to call, in addition to the sheriff, a series of black persons, and to ask them whether they were intimidated, and whether they had heard of particular acts of violence, or whether they had been victims of acts of violence, and as I mentioned to you earlier, in the Mississippi Supreme Court, these Respondents said, and this is in our reply brief, most of the witnesses that they themselves had called testified they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott. And regardless of how one might read this record, the way the Mississippi Supreme Court read the record citing the 12 episodes that I have referred to, including the Evers threat, was that violence was force, violence, and threats, and the word "threats" is ambiguous because it may also refer, as some of the witnesses said, to threats of denunciation and ostracism, but taken even as threats of physical violence, were present during the boycott. Present is the theory. If it is present, that is enough on a conspiracy theory. And that this presence was "part of the boycott activity" that contributed to the boycott's success. So, on the words of the Mississippi Supreme Court, there is nothing like a finding that violence was pervasive or that it accounted for all the success or even most of the success. It was part of the activity that contributed to the success. On the question of parsing out which parts of a mixture of lawful conduct and unlawful conduct have to be separated in assessing causation and damages, in constitutional cases, this Court has been very clear several times that it is the duty of the trial court to separate those factors out. In Pennington, you sent the case back because there was a mixture of an antitrust conspiracy to put the small coal mine operators out of business, and protected lobbying efforts to get the Secretary of Labor to establish a regulation that would help put them out of business. You said no damages could be assessed for the protected effort. In Gibbs, Mr. Justice Brennan announced a similar rule because there the damage had resulted in part from legitimate protected picketing activity and in part from improper activity. In Berkey, an antitrust case that the Second Circuit has just decided, deciding a number of your cases, they separated out damage to an antitrust plaintiff to distinguish between the effects of legitimate competition and the effects of the unlawful act. It is a perfectly standard way of going about this sort of a problem. I had thought the issue of primary and... whether this was a primary or secondary boycott was out of the case and that if peaceful, the Respondents did not challenge it. I take it now the Respondents continue to challenge whether boycotts, peaceful boycotts are constitutionally protected. I would remind you in that connection about Thornhill against Alabama, which expressly protects primary boycotts and picketing with the purpose and effect of persuading people in a labor dispute not to patronize the employer. And in Alabama against NAACP, Justice Harlan said for this Court that when Alabama tried to throw the NAACP out of Alabama for a series of alleged unlawful acts, including the boycott of the Montgomery busing system, he said that even if one assumed that such an act, a boycott could be validly... could be charged as unconstitutional under a valid statute, he expressed great doubts as to whether that could be done, that you could not have a valid statute in those circumstances. Speaker: Mr. Cutler-- Warren E. Burger: Thank you, gentlemen. The case is submitted. Speaker: --may I ask you a question or two? Mr. Chief Justice? Warren E. Burger: Yes, go ahead. Speaker: Does the First Amendment principle on which you rely apply to any group that engaged in this sort of activity? There was some suggestion that you were arguing that it applied only to a civil rights boycott. Lloyd N. Cutler: For this case, Justice Powell, I think you only need go so far as to say it applies to petitions for the redress of grievances in support of fundamental constitutional rights. Whether it applies to any boycott seeking some change in governmental policy one could leave for another day, although I do think the colonial history supports even that, and I would remind you once more that contrary to what my friend has said, not only do we have colonial history, we have Alexander Hamilton and John Jay, two of the authors of The Federalists, the very time the Constitution was being ratified, leaving the boycott-- Speaker: Mr. Cutler, how about a labor boycott? Would you apply the same principle? Lloyd N. Cutler: --In Thornhill-- Speaker: A secondary boycott? Lloyd N. Cutler: --A labor boycott was protected under the First Amendment as a primary boycott in Thornhill. Secondary boycotts, you have protected in Tree Fruits where it involved only one product, but because it was a labor dispute and you recognized the Congressional interest in avoiding the spread of labor strife, you have drawn the line at a secondary boycott against all the products of a neutral employer. Indeed, I would remind you, these defendants were in no sense... plaintiffs, I mean, in no sense neutral. Speaker: Mr. Cutler, does it make any difference to your case whether this is or is not a secondary or primary boycott? Lloyd N. Cutler: It really does not, Justice Powell. Speaker: That was my understanding. But you would apply the same principle to any group asserting a fundamental constitutional right. Lloyd N. Cutler: If you would put that to me... a fundamental constitutional right. Yes, sir. Speaker: Yes. I would like to ask you a practical question as a lawyer. Let's assume a case you had about 100 people who picketed a store for a week, and there were, say, three acts of violence during that period. You could identify those three people. The store did no business for a week. How would you go about proving that even the three who engaged in acts of violence caused any loss of business? Lloyd N. Cutler: Did you say... yes. I take it you are saying they were identified people, Justice Powell, who committed the acts of violence. Speaker: Yes. You identify three people in the course of a week, there were three acts of violence. Obviously, you wouldn't want to hold innocent people liable. But would there ever be any recourse, provable recourse? Lloyd N. Cutler: I think, Justice Powell, that is a... could be a legitimate jury question to decide how much of the loss of business was caused by the act of violence, and as Justice Brennan hypothesized in the Gibbs case, if you've got a situation as grave as Meadowmore, where violence was in fact pervasive, a jury could conceivably find, or a factfinder could find that all of the damage resulted from the violence. Speaker: And if there were $100,000 worth of damage, X percent of it could be assigned to those three people? Lloyd N. Cutler: Or if you had... I could change your example from three to three a day, it could be the entire $100,000. A jury could find that. Warren E. Burger: Thank you, gentlemen. The case is submitted.

John Paul Stevens: We will hear argument in Number 121 Original, Louisiana v. Mississippi. Mr. Keyser, you may proceed. Gary L. Keyser: Justice Stevens, and may it please the Court: Louisiana's circumstances here today are decidedly less happy than they were 3 years ago in November of 1992, when we were here on the same case. Since that time, we have had an opportunity to supplement the trial record from the Federal district court in Vicksburg with more than 200 additional exhibits and more than a dozen new witnesses who have augmented the trial testimony and we believe clarified it perfectly well. Unfortunately, the reason we're here is because we filed exceptions to the report of the special master which has essentially tracked the district court, which was reversed by the Fifth Circuit in favor of Louisiana. We hope to persuade the Court that Louisiana, like all other States, is entitled to some river frontage, to some access to navigation, and that there should not be an interstate boundary along our levee and along the bank of the river at Lake Providence, Louisiana, where the river never found its main course. In order for a boundary to be drawn there, as Mr. Austin Smith contends-- John Paul Stevens: You say the river never found its main course? Are you saying the thalweg was never west of the island? Gary L. Keyser: --When you say island, Justice Stevens-- John Paul Stevens: Stack Island. Gary L. Keyser: --Well, the original Stack Island of 1881 was 6 miles northeast of that location. John Paul Stevens: Right. Gary L. Keyser: The boundary is sought to be drawn-- John Paul Stevens: Are you saying that the thalweg was never west of that island? Gary L. Keyser: --Yes, sir. Mr. Brien Winkley, the chief hydrologist for the Corps of Engineers, said it was never there, and he produced all hydrographic surveys for all known periods of time to show where the thalweg was every year, and those hydrographic surveys were introduced into evidence, carefully explained by Mr. Brien Winkley, by Mr. Mike Mayeux, a professional land surveyor, and by Dr. Ernie Easterly, who is a forensic geographic and fluvial geomorphologist. All of them tracked the deepest geologic thalweg of the river, the downstream track of navigation for all periods of time, and none of them could find that the river was ever on the Mississippi levee, on the railroad tracks, across the property of Mr. Surles and Mr. House, or even across the Lake Providence Port Commission property, where Mr. Smith drew his boundary line. Ruth Bader Ginsburg: Mr. Keyser, I'm confused on that point, because I thought that Dr. Easterly testified in answer... there's this colloquy in the third supplemental transcript at 315, 313 to 15. He's asked the question, so the logical conclusion, then, is that the boundary thalweg was west of Stack Island at its formation, and the answer is, that is correct. Gary L. Keyser: Yes. The answer there refers to the northeast position of the original position of Stack Island in 1881. That's 6 miles, 5 to 6 miles northeast of the Louisiana levee. That's why there's so much confusion in this record. You can never understand from one minute to the next which area you're talking about unless you do it by latitude and longitude. David H. Souter: Well, if we speak just in neutral terms about disputed territory, that will take care of that confusion, won't it? Gary L. Keyser: Or the disputed areas, sometimes referred to the accretion along the west bank at Lake Providence. David H. Souter: You said in your brief, I believe, that the line as the master has recommended that it be drawn now cuts through property which has been owned and farmed by Louisiana residents since I think the beginning of this century, and that statement was simply hotly disputed in Mississippi's brief as being a factual misstatement. Could you either now, or if you can't do it at this moment, perhaps by a letter to the Clerk after the argument is over, point me to sort of the exact places in the transcript, or the other evidence which supports that statement of yours? Gary L. Keyser: One place you would want to look is to the testimony of Albert Surles, who adjoins the property of Mr. Sam House, who is the sheriff of that parish. Mr. Surles' father bought the property in 1925, and he testified that the accretion which attached to his property he had leased out to another Louisiana witness, Lonnie Styron, and Lonnie Styron was then at that moment, when he was testifying, forming that property. Now, that accretion was not, I don't believe, formed by Mr. Surles' dad, but rather by Mr. Surles himself, and Mr. Styron. David H. Souter: Okay. Is there any other evidence in the record that you would point to? Gary L. Keyser: I can't think of anything, except Robert... you have to recall that Mississippi really only had two witnesses, Austin Smith, who is their expert, and Robert Jarvis, who is the grandson of the Houston family. Mr. Jarvis' testimony was from an aerial photograph in which he drew a blue ink pen line across the same property and said that was the property of the Houstons. Well, that's the Surles, House, Delony, Shorter property. Actually, the line that Robert Jarvis drew is more westerly than the line that Austin Smith drew. David H. Souter: Well, that may be, but none of that indicates that a Louisiana family was farming the land since 1900, and I take it it's the Surles' testimony and that alone that you point to. Gary L. Keyser: Yes, sir, and you'll see in the testimony there that there... in fact, the lease was introduced: to evidence. David H. Souter: Okay. Gary L. Keyser: Thank you. So we're hoping to get some kind of river frontage and some access to navigation. On the subject of Mississippi's expert witness, this is the same man-- Antonin Scalia: Before we leave the thalweg issue, whether it was west of the disputed territory or not, I confess to be totally at a loss to understand what's going on here. In the brief of Mississippi, it is stated in this case it is undisputed that the boundary thalweg was west of Stack Island in its prepatent location. Is that a misstatement? Gary L. Keyser: --No, sir. I think that's true. It depends in any year, any given point in time, when you make a statement, whether or not it's true, because it changes all the time, but-- Antonin Scalia: Well, I'm talking about the prepatent location. It was west of Stack Island, you don't contest that. Gary L. Keyser: --It was west of Stack Island before the New Madrid earthquake washed the island away in 1811, and it was west of Stack Island... another problem-- David H. Souter: You're saying this isn't Stack Island, isn't that what causes all of this confusion? Gary L. Keyser: --Certainly. That is correct. What the disputed area is is not Stack Island. The originally island was-- David H. Souter: So if we accept the master's reasoning that in fact you can trace the... I'll call it the migration of this piece of land, whatever it's supposed to be called, from the Stack Island which was east of the boundary thalweg originally to the disputed area now, then your argument falls. If we accept his reasoning for the identity of this land, then that's the end of your argument. Gary L. Keyser: --That's correct. Ruth Bader Ginsburg: And then you do concede... that was the Dr. Easterly testimony that I read, that the boundary thalweg was west of Stack Island at its formation. Gary L. Keyser: In 1811 or prior years, not at 1994, 1995-- Ruth Bader Ginsburg: Well, we have just gone through that if this Stack Island continued in existence, then the boundary was west of Stack Island at the island's formation. Gary L. Keyser: --Dr. Easterly's not referring to the Louisiana levee. He's referring to the Mississippi area 6 miles northeast of the area of the dispute. I'd have to reread the testimony you're reading to make absolutely sure, but I'm quite confident that's what he meant. Ruth Bader Ginsburg: And the boundary thalweg, unless Stack Island is washed away, will remain west of Stack Island for all times, unless it is eroded away, and Dr. Easterly confirmed that that was correct. Gary L. Keyser: That's correct, but he's not referring to Lake Providence, he's referring to Mayersville, Mississippi. Ruth Bader Ginsburg: I thought he was referring to Stack Island. Gary L. Keyser: No. I think that colloquy is about where the location of the original island is and all of the exhibits depicted in black at a latitude reference... he's referring to, if the island is washed away... I think they're talking about the island rule there, but I would have to go back and reread it. Stephen G. Breyer: Maybe I have this mixed up, but I didn't think it was that complicated, so probably I do have it mixed up, but I thought once upon a time there was a place called Stack Island that used to be part of Mississippi, and there was a big river that flowed to the west of it. Gary L. Keyser: Correct. Stephen G. Breyer: And then that big river that flowed to the west of it began to change its channel and began to flow towards the east of it, and the law is that if the river changes like that, that Stack Island still stays part of Mississippi. But of course, if it really isn't one island, if really the island disappeared and then reemerged later on, when the river was flowing to the east, then it's part of Louisiana. Gary L. Keyser: I agree with-- Stephen G. Breyer: So you're all arguing about whether this was one island called Stack Island, which has always existed, but the river changed course, or that there are three or four or five islands that keep coming back and forth and disappearing. Gary L. Keyser: --That's exactly correct. Stephen G. Breyer: All right. Fine. Gary L. Keyser: That's exactly what-- Stephen G. Breyer: If that's correct, then looking through this, it seemed to me they made an awfully good case that there was just one island, because they trace it through on all the maps, and then they show that there were cottonwood trees there that are about 100 years old, or 80 years old or something, and they're still there, and it's pretty hard to see how all these trees could have grown on this island that was popping in and popping out, and you have some other evidence, but what is it, because I haven't found it. Gary L. Keyser: --Let me explain what that problem is there. The special master misconstrued Mississippi's only third witness, the forester, Mr. Burkhardt. Mr. Burkhardt was testifying about an 1867 Merriweather map which showed the island accreted to the Mississippi shore at that time, and it did have tall trees. As Austin Smith testified, that island was completely washed away and washed downstream. Stephen G. Breyer: The only thing I found on your side, or my clerk found so far was that one of these maps, which always talks about Stack Island, had at one point marked through it a thing that said river, or channel, and if you assume there were 50 yards on either side or something it must go through... do you know what I'm thinking of? Gary L. Keyser: I think that was a survey-- Stephen G. Breyer: Yes, right. But aside from that, is there any other evidence in your favor? Gary L. Keyser: --About what? Stephen G. Breyer: That shows this island was popping in and out instead of just being one island. Gary L. Keyser: One of the best things... quickest handles you can get on that is to look at Dr. Easterly's testimony. He explains the origin of the island, when it was washed away by the New Madrid earthquake, and attached to his prepared testimony in the supplemental trial is what's called the cartographic analysis. It tells you for every year whether the island or any bar or shoal formation loosely called Stack Island was in existence, and you will see that it appeared and disappeared and reappeared, as did island number 7, below Lake Providence, and an agglomeration of bars and shoals which appear and reappear throughout this reach of the river. But the location known as island number 94, and after it was washed away in 1883 it became Stack Island, and it was washed away in 1910 to 1915, became bars and shoals and an agglomeration of low-level accretionary features, washed away again in 1948, and now it's there in its full glory at its original location as a true island known as Stack Island near Mayersville, 6 miles from Lake Providence, and what is below on the Louisiana bank is nothing more than bank accretion. David H. Souter: Mr. Keyser, when you say that it washed away, do you mean that there was on the surface of the river at that point no land showing, or do you mean that the level of the island in relation to the adjacent river banks dropped sufficiently low so that by the legal definition you employ it was not an island even though there was visible land of some sort there, whatever you might call it? Do you mean that literally there was nothing above the surface of the water, or there was something above the surface, but it wasn't high enough to be called an island? Gary L. Keyser: Both of those are true, both of those statements. In 1883, during a flood period, the river totally scoured the island away, and as Dr. Winkley testified, there was a 30-feet scoured channel right through the island. David H. Souter: Wasn't there also testimony that with respect to that time a given family was continuously farming the land, so that with respect to that, wasn't there disputed testimony? Gary L. Keyser: They filed affidavits... the island was surveyed-- David H. Souter: Well, but isn't that what their affidavit said? Gary L. Keyser: --Correct. David H. Souter: And isn't the master entitled to accept the affidavit? Gary L. Keyser: I think he has to do so with a common sense comprehension of what was going on at the time. David H. Souter: Well, if somebody says, there's nothing there, and somebody else says, we were farming that land there at that time, the master can't have it both ways. He's got to choose one or the other. Gary L. Keyser: That's true. David H. Souter: If he chooses yours, they're going to say, oh, gee... the other side is going to say, you've got to show common sense, and if he chooses the other side's testimony, that's what you're saying. But he's got to take one or the other, and why would we go behind his factual resolution? Gary L. Keyser: Why would the U.S. Army Corps of Engineers draw hydrographic surveys that showed scour pools at the location of the island? Stephen B. Blackwell has family who are in an ongoing effort to achieve a patent-- David H. Souter: I don't know, but if you want to say it's a choice between whether you're going to accept the testimony of farmers who said they were farming, and a Government agency that drew a map, I don't see anything irrational about saying I'm going to go with the farmers. Gary L. Keyser: --Well, the island was surveyed in 1881, but it washed away in 1883. No one-- David H. Souter: And the farmers say no, we were farming it. Gary L. Keyser: --Well, in the hope that it would come back, which it did. David H. Souter: Well, they weren't farming in hope. I mean, you're not plowing in water. [Laughter] Gary L. Keyser: They may not have been accurately providing affidavit for the general land office-- David H. Souter: Well, somebody could always lie in testimony, that's true. Somebody can always can make a mistake. But the point of a factfinder, in this case the master, is in effect to make the best choice he can, and the master in this case chose the affidavit of the farmers. What is irrational about it? Gary L. Keyser: --With an island elevation of 20 feet and a water elevation of 50 feet, one might doubt the veracity of an affidavit that says there was an ongoing farming operation continuously from year to year. It would be under 30 feet of water, as the master saw himself on May 5, 1994. When he went with us in a boat to the disputed area, he found 46 feet of water and an island... not an island, an accreted ball formation on the Louisiana bank 30 feet of water. Now, is that an island? David H. Souter: I don't know, but I'm concerned about 1883, and the master-- Gary L. Keyser: Well, that's-- David H. Souter: --took the testimony of the farmers, and I still don't know why it's irrational. Gary L. Keyser: --Well, he didn't take the testimony of the farmers. David H. Souter: Took the affidavit of the farmers. Gary L. Keyser: He took... there was an affidavit filed in an effort to kill a fault in a patent application, was what that was about. But if you look at all of the hydrographic surveys, it's not reasonably likely that a farmer could have farmed 30 feet under water, and that's the long and the short of it. That is a legitimate concern. Ruth Bader Ginsburg: In your view, when did this disputed area form? You said it's not the same as this Stack Island in origin. We have... the disputed area is formed much more recently, and when do you date it from? Gary L. Keyser: According to the testimony of the Corps of Engineers chief hydrologist, it started forming in the 1930's. According to Albert Surles, who lived there, I think, thirties, forties, and fifties, it was a gradual process of building accretion to the bank, and you can see it from the hydrographic surveys, and Mr. Surles testified about it, and in fact in the first-- Ruth Bader Ginsburg: Your position is, it's 1930, or it's not 1930, when is it? I'm not-- Gary L. Keyser: --It's a gradual process of building on a river bank. The accretion forms more and more, year after year, unless, of course, it's washed away, and that's what Dr. Winkley testified had happened here. As the island to the northeast is being washed away, sediment is being deposited on the Louisiana bank at Lake Providence, so there are two separate and distinct features, two separate and distinct times and places building and eroding independently of one another. Anthony M. Kennedy: --In the disputed area, roughly, in a 10-year period, or from 1930 if the record tells us, what period of time was it underwater? Gary L. Keyser: Every year. It's-- Anthony M. Kennedy: For how long? Gary L. Keyser: --During high water. Anthony M. Kennedy: How long does the high water last? Gary L. Keyser: It would depend on the melting of the snow up north. It would commence probably in March, April, May, June. It varies from year to year. Sometimes there are periods of extreme high water even very late in the summer. In fact-- Anthony M. Kennedy: So in some periods it would be underwater for 3 or 4 months? Gary L. Keyser: --Yes, or longer. This entire crew here was in a boat on September 5, 1994, and the water elevation was 46 feet. Stephen G. Breyer: In other words, there is... if I go to the place... what's... it's not a trick. I'm using the words Stack Island to refer to what Mississippi and the special master were referring as Stack Island, so I'm not trying to catch you in any kind of linguistic difficulty. I mean, you're saying that this place that the master and everybody is talking about as Stack Island, which from reading the master's reports had trees all over it, cottonwood trees, that you all went out there, and there was nothing but water, and that down below the water level, 40 feet below was this place they're calling Stack Island with, what, some trees, branches, poking out the top? Is that what it looked like? Gary L. Keyser: Major treetops. It was like driving through a forest. Stephen G. Breyer: So in other words, if we go there right now, there is no land. It's 40 feet under the water. Is that what you're telling me? I'm just trying to understand this. Gary L. Keyser: Depending on the water elevation. I'm not sure what it is right now. Stephen G. Breyer: But no, is it that there is no land there at all, it's below the water, like feet, many, many feet below? Gary L. Keyser: I would imagine if conditions today on October 2nd or 3rd-- Stephen G. Breyer: And all the witnesses agreed, everybody said... I didn't get that from the report... they all went out to this place of what they're calling Stack Island, and there's no land, it's just water 3 or 4 months a year? Gary L. Keyser: --That is the nature of the river. It goes-- Stephen G. Breyer: But is... am I right in saying that? Gary L. Keyser: --Yes, Your Honor. Stephen G. Breyer: So there is no land there, there is just water 3 or 4 months every year, is that the case? Gary L. Keyser: It may be longer than 3 or 4 months. Stephen G. Breyer: All right, but not shorter. Gary L. Keyser: It could be shorter. David H. Souter: It's like the Nile Valley. [Laughter] Gary L. Keyser: Correct. The water elevation varies as much as the height of this building. David H. Souter: May I go back, then, to my earlier question? Gary L. Keyser: Yes, sir. David H. Souter: Part of your argument, if not your case, then, rests on your claim that this is not an island because it is not high enough in relation to the banks of the river to be called an island. Gary L. Keyser: Correct. David H. Souter: And you're saying that for that reason, even though during some parts of the year there's land here, and indeed there's enough land to have trees, the tops of which look like a forest, it's still not an island, and the island rule, or the island exception, rather, does not apply. That's your argument. Gary L. Keyser: Yes. David H. Souter: Okay. Gary L. Keyser: It wouldn't apply to this-- David H. Souter: Why... you in effect then are saying that the island exception should not apply to anything that does not... any body of land sometime above the river, which sometime is located above the surface of the river, which is not... I forget what the rule is, as high as the banks, or something like that. Why in the world would we want a different rule for low-lying land, let's say, that is a foot or 6 feet below the banks from the rule that we would apply to an island as you would define it? Gary L. Keyser: --If you attempt to take into account every bar and shoal, and if each one of those can represent the legal character of an island, you'll have a thousand boundaries. They're constantly forming and being washed away, so you'd be faced with trying to draw frozen thalwegs and active thalwegs, or different boundaries every time you found a bar or shoal, of which there are thousands in any one mile of the river. Sandra Day O'Connor: But I assume very few of those have been patented to owners like this. You're talking about an area here where land patents have been issued, isn't that right? Gary L. Keyser: Not on the west bank of the river at Lake Providence. Only patents for uplands fastlands to the riparians at the time of State sovereignty. What has accumulated as accretion to the bank has never been patented out. It is just attached. The only thing that was ever patented was the northeast Mayersville, Mississippi location. Sandra Day O'Connor: You know, there is a series of maps that were put in evidence in this case, I assume by Mississippi, and each one has fixed markers. You can lay one on top of another, and see at each map just where this disputed area has shifted a little bit or grown, or changed, and where the river has changed, and if you lay each one on top of the other, at the end of the day you see the disputed area that has shifted somewhat through the years, grown, changed in shape with movement of the river, but nonetheless traceable. Gary L. Keyser: Yes. Sandra Day O'Connor: And you come away at the end thinking, well, here is this piece of land that was patented, and it shift and changed through the years, but it's identifiable. Now, is there not such evidence available that the master looked at and apparently relied on? Gary L. Keyser: He did look at it, and apparently did rely upon it, and that technique is the subject of a book. It's called, "How Maps Lie". It's no different than taking aerial photographs of a car on an interstate, and you take the picture every day, and you say, see, the car is always right in that same place. And that's what happened in this case. Those maps are nothing more-- David H. Souter: Well, are you suggesting that the island disappeared in the meantime? Gary L. Keyser: --Dr. Winkley said-- David H. Souter: Are you saying that as between map A, B, and C in the interstitial period between A and B and B and C, that the body of land disappeared? Gary L. Keyser: --From year to year it did. It was washed away. David H. Souter: They just happened to get there at the fortunate moments when it was appearing, and they never bothered to map during those periods when it had sunk? Gary L. Keyser: Those maps are-- David H. Souter: I mean, that's not a believable proposition. Gary L. Keyser: --Those maps are at low water. They're below the ordinary low water elevation. David H. Souter: All right, then that gets us... all right, then that gets us back to the claim of whether it is or is not an island by legal definition, but it doesn't go to the question of continuity, which Justice O'Connor raised with you. Gary L. Keyser: Well, Dr. Winkley addressed the question of the whole thing being scoured away. He gave us the dates. He gave us the maps. They're all in evidence. It shows that the bottom form of the river was completely devoid of some of those very formations you make reference to, and he explained that in his predicate testimony for what he would talk about, then he explained it specifically with regard to each map. Now, sometimes there is a low-lying bar or shoal growing up... as the ancient writers used to say, fast growing up to be an island covered with willows, maybe a new crow's nest island, words to that effect, but it-- Antonin Scalia: That testimony contradicts the series of maps, does it not? Gary L. Keyser: --Yes, it does, the series-- Antonin Scalia: Once again-- Gary L. Keyser: --that Justice O'Connor referred to. Antonin Scalia: --as with the affidavit by those who claimed to have farmed the land, there is conflicting testimony, and isn't the master entitled to rely on the series of maps, rather than on the testimony of your one expert witness? Gary L. Keyser: Well, we had four. We had-- Antonin Scalia: On this point? Gary L. Keyser: --Yes, sir. We had-- Antonin Scalia: That said it was totally scoured? Gary L. Keyser: --We had Hatley Harrison in the first trial, Mike Mayeux, the surveyor, Dr. Winkley, the corps' hydrologist, and Dr. Easterly. All of them talked about each of the maps. John Paul Stevens: General Keyser, can I ask you a factual question? In response to questions from Justice Breyer, you said the island was totally submerged for 3 or 4 months in several years. Would it not also be true that for 8 or 9 months it was visible and above the level of the water? Doesn't the water level rise or fall rather dramatically in the Mississippi? Gary L. Keyser: Correct. John Paul Stevens: And in your view, how long does it have to be submerged before it ceases being an island? Gary L. Keyser: It has to be above ordinary high water to be an island at any time. John Paul Stevens: Well, I... you're not denying... you're not saying it was never above high water. Gary L. Keyser: Dr. Winkley said there has been no island in the river above high water for any recorded period of history. John Paul Stevens: It as to be above high water. Gary L. Keyser: Ordinary high water. Now, when that water goes down, you can see something. You can walk on it. That's why they deer-hunted. John Paul Stevens: And for what period of year, in your view of the evidence, was the island totally submerged, in a typical year? Gary L. Keyser: Well, it would be submerged from after the... I mean, it would be emergent from after the spring floods, generally through the summer, to February, March, April the next year. John Paul Stevens: So it would be above water more often than it would be submerged. Gary L. Keyser: It's hard to say because of the way the water in the river is. We'd... it... actually it varies tremendously from year to year. Anthony M. Kennedy: Well, with reference to the definition of an island, can you give us some idea of how to measure the time that the island has to be above water, or above the high water mark, in order to qualify as an island under your definition? Gary L. Keyser: Once an island is above ordinary high water, it is a fixed place. It's fastland. It has permanent character. Anthony M. Kennedy: Even if it's above high water for just once a year? Gary L. Keyser: Well, yes, if it-- Anthony M. Kennedy: One day a year? Gary L. Keyser: --Ordinary high water-- Anthony M. Kennedy: That's what we're asking. How long-- Gary L. Keyser: --Ordinary high water may be in the vicinity of 36 to 38, 40 feet. What exists for whatever period of time, and if the island were... whatever portion of a bottom feature was above that elevation would be the island part, not the part below it, like Hawaii or somewhere. Only the part above the water is the island, not the part below it, so if it's above the water, that part qualifies as an island, not the bars and shoals that surround it. Anthony M. Kennedy: --How long does it have to be-- Gary L. Keyser: There's no rule on that that I'm aware of. Anthony M. Kennedy: --So 1 day a year suffices. Gary L. Keyser: I wouldn't go that far. I would have to think it would have to be somewhat more emergent and more permanent in character and use than that, but-- Anthony M. Kennedy: I thought the definition that the master used was whether or not it was below or above for a protracted period of time. Gary L. Keyser: --I would think it should be, but I've never seen a situation where there was only... if you only had 1 day of ordinary high water, it might qualify, but that's not the case. That never happens. It's months at a time, generally. David H. Souter: Mr. Keyser, going back perhaps more specifically to the question that Justice O'Connor raised with you, in leaving aside for the moment the question of how we're going to define the island... let's just refer to it in a generic... to the disputed area in a generic way. The yellow brief on page 30 contains the statement that 65 percent of the island as shown on the map in 1882 was still in place, in the same place as shown on a map in 1937. Is that statement correct? Gary L. Keyser: That's totally incorrect. It's not possible by any stretch of the imagination. Those are in two different geographic locations. They're 6 miles apart. There's no way that-- David H. Souter: Well, how long was the island? Gary L. Keyser: --Along the Lake Providence bank in Louisiana. It is the bank accretion, and it goes from the town of Lake Providence 5 or 6-- David H. Souter: Yes, but how long is it, I mean in relation to 6... you're saying it was 6 miles apart, it couldn't-- Gary L. Keyser: --Oh, no, no-- David H. Souter: --so that statement couldn't be correct. Gary L. Keyser: --Yes, I see what you're getting at. The original island first referred to is 117 acres, so it might be 500 feet long, 1,000 feet long, over against Mayersville, Mississippi. The other accretion against Louisiana is just that, it's in a remote location, so the two can't coexist... well, there's a new island in the original location, so they do now, but they couldn't along the lines of what you're suggesting. I think I'll reserve the rest of my time. John Paul Stevens: Thank you. Mr. McCartney. James W. McCartney: Justice Stevens, and may it please the Court: What has emerged from Mr. Keyser's argument is in our view simply that we have, as we had at the outset of the trial, an identity issue. That is to say, is the disputed area Stack Island as it was patented but changed in configuration and location over a very lengthy period of time? The Court appointed the special master. The special master reviewed all of the evidence. The special master heard the witnesses. The special master also heard some of the arguments that you have heard today. The special master addressed the question of whether this was an island. The special master found from the record, and we have undertaken in our brief at page 25, joint response, footnote 23, to identify the evidence in the record that demonstrates not only that this island has the appropriate permanence which is the test that we submit is the appropriate test, that it has the appropriate... has the permanence to qualify as an island, but also that it was above high water, and the thought-- John Paul Stevens: When you say above high water, what do you mean? Above high water 6 months out of the year, 9 months, 12 months... what do you mean by above high water? James W. McCartney: --Your Honor, when I say that, I'm talking about constantly. John Paul Stevens: Permanently. James W. McCartney: Now, there may be-- John Paul Stevens: So you disagree as a matter of fact with your opponent's statement that for several months each year it was 40 feet below high water. James W. McCartney: --Yes. David H. Souter: Well, where were you all when you were in the boat? James W. McCartney: Well-- [Laughter] Antonin Scalia: Didn't you row among-- [Laughter] Didn't you row among the treetops with Mr. Keyser? James W. McCartney: We rowed among treetops, but there was also water... dry land above the water. Stephen G. Breyer: I mean, where was... that what was mixing me up. As I read these and I had my law clerk check into it, I did think there was an awful lot of evidence this is one place, and there are big poplar trees 80 feet around or something, or they're very, very broad, big trees. I don't know how you could plant these trees if it's underwater all the time. But he just said you went out on a boat, and there you were, sailing over the island 40 feet below you under the water. What happened on that boat? James W. McCartney: Well, what happened was that a part of the time... we motored, we didn't actually row. [Laughter] We motored among the trees over that portion of the island that was inundated at that particular time of the year, and the master was there, and viewed the island, and heard the evidence, and read the cases, and reached the conclusion, correctly, that this is a land mass that has the degree of permanence that qualifies as an island, and that qualifies as a feature that determines boundary. Antonin Scalia: But you said that it has to be permanently above high water. James W. McCartney: Well, I didn't... if I said that, You Honor... I thought you were asking me... I didn't say it had to be permanently above water. I didn't intend to, let me say that. What I'm saying is that the overwhelming... well, let's direct our attention first to the question that you asked. No, we don't say that it has to be permanently above water. I think that an island could flood and still have permanence over 100 years, and the master so found, and documented his findings quite overwhelmingly in this appendix. Antonin Scalia: I'm not talking about permanently above flood tide, or anything. James W. McCartney: Yes. Antonin Scalia: Permanently above normal high water, and so I took your statement to mean that if at the time when you went motoring among the treetops the whole island was underwater, that would contradict your case, but you say the whole island... because I assume that was just normal Mississippi high water at that time. That wasn't a flood, was it? James W. McCartney: It was a flood, but Your Honor, I guess that-- Antonin Scalia: You picked a bad time to go, then. You should have been out during-- [Laughter] During normal-- James W. McCartney: --We wanted to see it at its worst. We were perfectly prepared for the master to examine the feature at the time of extreme high water. Actually, that's... it just happened to be that way. I don't mean to suggest that we picked any particular time. David H. Souter: --Well, Mr. McCartney, I just wanted to get straight on what you saw out on the boat. [Laughter] I take it that part of this land mass was flooded. There was water over the soil, but I gather from what you said a moment ago part of it was not-- James W. McCartney: That-- David H. Souter: --that there was still some dry land somewhere. James W. McCartney: --Your Honor-- David H. Souter: The edges of the island got flooded, but the center of the island didn't, is that true? James W. McCartney: --Your Honor, that is my recollection at this time, and Mr. Bailess will address that, but that is my recollection, and-- John Paul Stevens: But your further position is that even if there were a total flood, I mean, you can flood a whole long area, it doesn't cease being land. James W. McCartney: --No. John Paul Stevens: Yes. James W. McCartney: I mean, as pointed out, we have trees that... evidence that there were trees there that had been 50, 60 years old, and if I may just add to the evidence, in your review of the evidence of permanence, in addition to what the special master laid out in his Appendix D, which is itself overwhelmingly compelling, particularly when compared to the single or... map that they relied on to say that the island was scoured clean, and the bed of the river was scoured clean of this feature in 1883. Antonin Scalia: Mr. Keyser says four witnesses testified to that, is that right? James W. McCartney: That is not so. David H. Souter: Was the scoured clean map I think you were referring to, or one of the briefs referred to as the lunch map? James W. McCartney: The lunch map-- David H. Souter: Yes. James W. McCartney: --which itself, and I'll just... it's credibility is destroyed, or at least seriously impaired, because one of their experts gives it to the other expert in the middle of trial, and he takes that map, and he says, oh, you know, this land was underwater, and we say, well, wait a minute, here are affidavits given in 1885 that say these people were farming-- John Paul Stevens: Yes, but that map does show a channel of the river going right over the island, doesn't it? James W. McCartney: --And... and he says, how can they be farming land that's underwater, and we say, that is a good question. Obviously, they can't. The map was wrong. It's a spurious map. Besides, in addition to these documentary demonstrations of permanence, we have to remember that in 1921, after they say this was scoured clean, there was a timber deed given to my clients, the Houstons, the private parties. In 1931, there was another timber deed, so these people are selling... these are the Blackwells, the patentees are selling timber off the island in '21, '31, an then my clients lend money and take a mortgage on this piece of land that's 54 feet, according to this Mr. Winkley, underwater. They lend them money, and then they foreclose on the mortgage. [Laughter] The State of Mississippi, they take a tax deed. They foreclose for the nonpayment of taxes. There's litigation over this island. This island has been known to all of the parties. There's overwhelming documentary evidence that it's continued in existence. Antonin Scalia: Mr. McCartney, do we know who did the lunch map? I mean-- James W. McCartney: We do not. Antonin Scalia: --is the author unknown? It just sort of appears? James W. McCartney: Author unknown-- Antonin Scalia: Can you get maps into evidence like that? I mean-- James W. McCartney: --Well-- Antonin Scalia: --without knowing-- James W. McCartney: --Your Honor, to be perfectly frank with you, we wanted that map in evidence, because the reliance on that map and the circumstances in which it was found... and it was a total reliance... utterly destroyed the credibility of Mr. Winkley, and so we were perfectly happy for him to rely on this map that mysteriously appears at lunch and say, yes, this is what I'm relying on, and therefore this island was scoured away and washed away and ceased to exist, and so-- John Paul Stevens: --Mr. McCartney, what is your view of our duty to give deference to the master's findings of fact? Are we supposed to look at the case de novo, or are we supposed to give some deference to him? What's the law on that point? James W. McCartney: --Your Honor, I've taken a position on that in a previous argument that you are free to take your own factfindings, and that the clearly erroneous rule does not apply. I think that to be correct, but I think as a matter of law, under these circumstances the evidence is so overwhelming that that question does not come into play. John Paul Stevens: Thank you, Mr. McCartney. James W. McCartney: Thank you. John Paul Stevens: Mr. Bailess. Robert R. Bailess: Justice Stevens, and may it please the Court: As I sit here and listen to this this morning, I wished I had been standing up here to answer some of the questions that you had asked. Sandra Day O'Connor: Well, I wish you had, too, because it sounds like something like a giant shell game in the river, now you see it, now you don't, and no, it's... the island's up here 6 miles away. Robert R. Bailess: Justice O'Connor, I would... you mentioned the overlay exhibits which, it takes a little time to examine those exhibits. You have to get acquainted with them. You have to become familiar with them. If each of you took the time to get familiar with the overlays, you would unquestionably say that Stack Island has existed from... and the first good metes and bounds, if you want to call it that, survey that is performed by geodetic positions... that is, latitude and longitude lines, which was done in 1882... show unquestionably that Stack Island at that time was good, fastland that existed, and if you follow that on through up to 1994, you will see that that island is in substantially the same position through all of those years. David H. Souter: May I get specific about that with a question that I raised with Mr. Keyser? Why, then... can you explain why we have such a clear dispute over the proposition which was in your yellow brief that 35... I'm sorry, 65 percent of the island as shown in 1882 was still shown in the same place in 1937? How do... one of the things that's puzzling me is how we can have, definitional problems aside, such a clear contradiction about matters of evidentiary fact. Robert R. Bailess: Justice Souter, the only way that I know to answer that question is to say, if you will look at who was testifying to come up with those percentages, it was Dr. Winkley on cross-examination, so Louisiana's own expert witness testified to that. I don't know how better-- David H. Souter: What is your comment on Mr. Keyser's statement that the island... or the land masses were 6 miles apart, and for that reason, given their sizes, there could not have been such an overlap? Robert R. Bailess: --Your Honor, Mr. Keyser attempted to talk about two islands when we tried this case the first time in Vicksburg before Judge Barbour in 1989. He again tried to talk about this other island in the supplemental proceedings before Judge McKusick, and there was an original Stack Island, and I will admit to you today that the original surveyed, patented Stack Island is not located in the exact position that it's located in today. David H. Souter: Well, is it 6 miles away on the-- Robert R. Bailess: No, sir, it's not nearly 6 miles away. David H. Souter: --Well, do you stand by the statement which you attribute to the witness for the other side that there was this 65 percent identity over time between 1882 and 1937? Do you think that statement is correct? Robert R. Bailess: I think it's substantially correct, Your Honor. He was not my witness. I had him on cross-examination. He made the percentage, I accepted it, it was very-- David H. Souter: You adopted it in your brief. Robert R. Bailess: --I did. David H. Souter: Yes. So if I take the 1882 map and the 1937 map, and I overlay them on my light table, am I going to see something like a 65 percent overlay of the land mass? Robert R. Bailess: Give or take 10 percent, I believe you will, sir. David H. Souter: Okay. Robert R. Bailess: Let me correct one other thing that is misleading. When Judge McKusick and the attorneys went to view the island in May of 1994, we took a boat and we went around the island. We put in at the Lake Providence Port Commission. We went up the old channel, the boundary channel. We never did go into the wooded area far enough to see dry land, but I can assure you it's there, and I can assure you that if you read the hydrographic surveys that are in evidence, and you look at the contours on those hydrographic surveys which are surveying the top bank of Stack Island, you will see that at all times on those survey maps, Stack Island is higher than what Mr. Winkley is trying to put into evidence as the... he called it the top bank, and in each instance you will see that Stack Island exceeds Mr. Winkley's top bank definition by at least 5 feet or so. Sandra Day O'Connor: Were you on this boat trip? Robert R. Bailess: Yes, ma'am, I was. Sandra Day O'Connor: And was there a part of the disputed area that was above the waterline on that boat trip, or was there not? Robert R. Bailess: Justice O'Connor, we did not... as I mentioned just a moment ago, we did not see dry land on that trip, mainly because to get in there... there was current in the river, and we would have had to go in between trees to get to that area, and we felt like that was not an appropriate thing to do under the circumstances. The river-- Sandra Day O'Connor: You couldn't see it in the distance. Robert R. Bailess: --We did not see it. We went back in September when we heard the case. When Judge McKusick heard the evidence, we went back on an afternoon after the testimony and drove onto this island with a four-wheel-drive vehicle. We drove to the north end of the island where the highest elevation is. We drove to the south end of the island, where it's much lower. But at that time there was conversations in the vehicle as we rode around, now, Judge McKusick, this area here was dry when we were here 4 months ago. Sandra Day O'Connor: Well, do you acknowledge that at times the island is completely submerged-- Robert R. Bailess: No. Sandra Day O'Connor: --in the river? Robert R. Bailess: No, Your Honor, I do not. The... if you look... now, at times, that may have happened. If you look at the most recent hydrographic survey, if I'm not mistaken... it's in the brief on page 25 in footnote 23, but if you'll look at the contour on, I think it's of the most recent map, the Stack Island has an elevation of 50 foot. That is, 50 foot above zero gauge. Zero gauge is defined as the lowe water mark. The area on Stack Island on the north end is 50 foot above zero gauge. The river-- Sandra Day O'Connor: Well, do we look at the high water mark or the low water mark? Robert R. Bailess: --Your Honor, we take the position that an island is an area of land surrounded by water that has permanent features, i.e. vegetation, i.e. 70-year-old trees, that is capable of sustaining vegetation, and in 1881, when this island was surveyed by the General Land Office of the United States by a deputy surveyor, it had trees that were 60 to 70 years old at that time. Mr. Jarvis testified that in 1994 there were trees on this island that were 40 to 42 inches in diameter, which would have made those trees at least 60 to 70 year old in 1994. John Paul Stevens: Mr. Bayless, what is the difference in altitude between the ordinary high water mark and the zero gauge level on the Mississippi River? Robert R. Bailess: According to Mr. Winkley, Justice Stevens, it's 35 feet. According to Mr. Winkley. I don't adopt Mr. Winkley's testimony. I don't accept his definition of an island, but at Lake Providence, it's approximately 35 feet, according to Mr. Winkley. Antonin Scalia: What do you think it really is? What's your view? Robert R. Bailess: The Corps of Engineers establishes a standard low water, which is then termed zero gauge. John Paul Stevens: Right. Robert R. Bailess: The top bank is in the neighborhood of 35 feet. When we visited there in May of 1994, the river stage was 46 feet on the Vicksburg gauge, which at Vicksburg is 3 feet above flood stage, so it was above top bank by at least 3 feet. John Paul Stevens: Well now, on your... when you talk about the land being visible, are you talking about there being enough land above the ordinary high water mark, or enough land above the zero gauge, when you try to define the island? Robert R. Bailess: Your Honor, above zero gauge, Stack Island was a tremendous island in size. John Paul Stevens: All right. Robert R. Bailess: At-- John Paul Stevens: But which is the significant standard for us to look at, zero gauge, or high water mark? Robert R. Bailess: --Our position is standard low water, Your Honor. Now, let me mention this. Mr. Winkley testified that-- John Paul Stevens: Well, is standard low water the same as zero gauge? Robert R. Bailess: --Pardon me? John Paul Stevens: Is standard low water the same as zero gauge? Robert R. Bailess: Yes, Your Honor. John Paul Stevens: I want to be sure. Robert R. Bailess: Mr. Winkley testified, when they came up with this proposition that to be a true island it had to be above mean high water, that's the term that. Louisiana came up with. When we asked Mr. Winkley, well, what is mean high water, he said he didn't know. He did not have any definition, nor did the Corps of Engineers, nor did any other publication that he knew of publish a definition for mean high water on the Mississippi River. So we asked, well, what is ordinary high water? The same reply. So what Dr. Winkley did is, he then came up with a definition that an island has to be above top bank. He attributed that definition to himself. Antonin Scalia: And top bank means what? Robert R. Bailess: According to Dr. Winkley, it is approximately 35 feet above zero gauge which, to determine that, what he did in his testimony was, he took a period of time, and he plotted heights of the river during the 1870's to the 1880's. He said the reason he did that is because it was before levees. Therefore, when the river got out of its banks, it had no barrier to hold it up. But since you have levees, of course, the top bank, according to him, is really... you can't define it, because levees hold the water in. It confines the water. John Paul Stevens: But now, there are levees in this area. Robert R. Bailess: Yes. Yes, Your Honor, there are-- John Paul Stevens: And how high are the... what is the top of the levees, how high above the-- Robert R. Bailess: --I can't tell you from memory, but I believe I am correct in saying this, that the 50-foot contour on Stack Island that exists according to the 1993 hydrographic survey that is in evidence is at least as high as the top of the levee. David H. Souter: --Did I understand you to say earlier that even accepting the other side's definition of an island as requiring land equal to or above, what is it, top-- Robert R. Bailess: Top bank is what they say. David H. Souter: --Yes, that Stack Island would qualify? Robert R. Bailess: That is correct, Justice Souter. David H. Souter: And qualified in 1881? Robert R. Bailess: That is correct, and Dr. Winkley admitted that. David H. Souter: And do I also understand... you didn't say this explicitly, but I took this as implied, and I want to make sure I understand you. Did you also mean to say that if the entire island were flooded today, at a time of high flooding, that that would... that it's condition would simply be what the land on the bank of the river would be if there were not levees there, that the island would be no more flooded than the adjacent bank lands would be flooded? Robert R. Bailess: That is absolutely correct. Antonin Scalia: Okay. Once you establish an island on the basis of, you know, a portion of it is above... at least some portion is above top bank, whatever that means, the next question is, how much of that chunk of mud and whatever is an island? Is the island then that you have identified, does it extend down to the low water mark? Robert R. Bailess: Let me answer that in this way. In Louisiana, the Louisiana riparian owns from the bank to the low water mark. Antonin Scalia: To the low water mark. So it ought to be the same for the island owner. Robert R. Bailess: It ought to be. In Mississippi, the riparian owner owns to the thalweg, all the way out to the State boundary. Now, why would you penalize the Mississippi parties and the State of Mississippi by some cockamamie definition of top bank, that an island has to be at top bank to be an island? It's illogical. David H. Souter: Am I correct that there has never been any dispute in this litigation that at the time of the original patent... which was what, 1881, I think? Robert R. Bailess: It was surveyed in '81-- David H. Souter: Okay. Robert R. Bailess: --issued in '88. David H. Souter: All right. At the time of the survey patent, that Stack Island, the land mass so-called at that time, was an island by legal definition. That has never been contested, is that correct? Robert R. Bailess: To my knowledge, it has never been contested, Your Honor. Antonin Scalia: Okay. May I ask one more question? Suppose the island does... does disappear and reemerge, does that mean all bets are off? I mean, what's... is it the same island, or do you have to start all over again? Robert R. Bailess: Your Honor, if it truly disappeared by the natural processes of the river... that is, the channel of the river scoured that island away, then the island in my opinion would be no more. That would not destroy title to the land under the water, though, and in Mississippi the riparian owner would own to the thalweg, which would be to the State boundary, so it wouldn't disturb title, necessarily. Now, if that island came back in the same place, then conceivably title would never be disturbed, but there is absolutely no proof in this record that Stack Island washed away. David H. Souter: I was going to say, we don't have to get into that issue on your theory, because there is at least an evidentiary basis for viewing the facts as the master viewed them, so you don't want us to get into that. Robert R. Bailess: That is correct, Your Honor. Stephen G. Breyer: Is there some book that has... just as a matter of law that has this thing about top bank in it? I mean, it's making me a little nervous. I think there are some rivers that have very high banks, like the cliffs of Dover, or something, and it would seem amazing to me that if you have a little island in the middle of a river with thousand-foot banks on it, that suddenly people start saying it isn't an island, but I mean, is there some legal reference where they explain this? Robert R. Bailess: Justice Breyer-- Stephen G. Breyer: Which is the one-- Robert R. Bailess: --Mr. McCartney asked that question to Mr. Winkley. What if the Mississippi Bank is 1,000... I mean, 100-foot cliff, and the Louisiana bank is... is at your top bank. Mr. Winkley couldn't really answer that question, Your Honor. Stephen G. Breyer: --Aside from this, if we're going to state a proposition of law in some of these opinions, I would like it, you know, to be accurate. The thing I want to know, where do I look this up? Where does it say? It doesn't seem intuitive to me that it would be. Still, whatever Sicily... I mean, I don't know what the bank is of Sicily compared with the southern boot of Italy, but you see the problem. Robert R. Bailess: Yes. Stephen G. Breyer: Where would I look-- Robert R. Bailess: Yes, Your Honor, and I would point the Court to two cases. One is the case of Scott v. Lattig, which is cited in the brief, which gives a factual basis in that case for an island. It doesn't say that this Court made the determination for all legal principles that you have to have this to be an island, but in that case, it had, really, four things. One was, they said... this is factual things. This island, in Scott v. Lattig, was 3 to 5 feet above ordinary high water. 2) It was covered for the most part with wild grass, sagebrush, and young timber, and 3) it was... had substantial evidence of permanence, and 4) that it had been there when Idaho became a State. Antonin Scalia: --You never heard of the term high bank before, did you? Robert R. Bailess: I have used the term myself, high bank, a number of times throughout this litigation to describe the bank coming from Louisiana or Mississippi where the bank makes a severe slope coming off of the flatland down into the bed of the river. I've used that term high bank. I may have even used the word top bank, but not for the purposes of defining an island. The only other case-- David H. Souter: You had a second case... Smith v. Lattig, and you were going to refer us to a second case. Robert R. Bailess: --Thank you, Justice Kennedy, I was going to do that. The other case is a circuit court of appeals case. It's Uhlorn v. U.S. Gypsum company, and in that case the Court held that the elevation of the land was not the deciding factor in determining whether or not a State boundary would be lost, or to say it a different way, it did not have to reach an ordinary high water mark in order for the State boundary to remain... in that case I don't remember if it was to the west or the east or the north or the south, but for the State boundary to remain where it was when the change in channel occurred. Ruth Bader Ginsburg: Mr. Bayless, in a case like this, does either side have a burden of proof? Robert R. Bailess: Your Honor, it is our position that Louisiana had the burden of proof. They filed this original action. We still take that position. I'm a little different in representing the State of Mississippi than Mr. McCartney is. He filed no counterclaim. Mississippi filed a counterclaim to Louisiana's original complaint claiming that it was under Mississippi sovereignty, and we proved that, so as between Louisiana and Mississippi we had maybe an equal burden of proof only because I filed the counterclaim. I refer the Court to the case of Kansas v. Missouri. I don't remember the date of that. I think it was a 1913 case, but in that case this Court held that the party who filed the original complaint had the burden of proof in an original action. If I could review my notes just a moment. Kansas v. Missouri is 322 U.S. 213, 1944 case. John Paul Stevens: I think your moment for reviewing your notes has just expired. [Laughter] Robert R. Bailess: Thank you, Your Honor. John Paul Stevens: General Keyser, you have a little over a minute left. Gary L. Keyser: Thank you. First, I'd like to address the question of where the book definitions come from. On page 6 of our brief, we tell you where three of them come from, from U.S. Coast and Geodetic Survey, the Department of the Interior, and the Corps of Engineers. On page 19 we cite the Government Land Office book Manual of Instruction for the Survey of Public Lands, where the Government surveyors were given the same definition used by the Coast and Geodetic Survey and the other Government agencies which follow the Hague Convention of 1938 and the Geneva Convention on the Territorial Sea and Contiguous Zone. Sandra Day O'Connor: And what is that definition? Gary L. Keyser: A body of land entirely surrounded by water at ordinary high water. That's used in international practice, domestic practice on the rivers, U.S. v. California, U.S. v. Louisiana, all-- Stephen G. Breyer: Yes, all right, but then the issue, it's ordinary high water is the correct term-- Gary L. Keyser: --That is the-- Stephen G. Breyer: --not something like a special median extra-high water, and not top bank, so we should disregard those terms in your view, is that right? Gary L. Keyser: --Except that top bank is the same as ordinary high water. Stephen G. Breyer: It doesn't mean, really, the height of the bank. Gary L. Keyser: No. No, it doesn't. I can explain that, but it doesn't. John Paul Stevens: Thank you. The case will be submitted.

Earl Warren: Number 31, Gwendolyn Hoyt, Appellant, versus Florida. Mr. Ehrmann. Herbert B. Ehrmann: May it please the Court. So far as I know, this is the first case before this Court involving the issue as to whether a woman may be tried by an all-male jury and convicted under a statute which virtually excludes women and an administration of the statute which almost makes certain that there will be no women. We meet that issue frontally in this case. Gwendolyn Hoyt was tried on information in the Superior Court or in the court of criminal record of Hillsborough County, Florida. She was charged with killing her husband and the information stated that she was to be tried for second degree murder. A second degree murder in the State of Florida is defined as follows: “When perpetrated by an act imminently dangerous to another and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in a second degree and shall be punished by imprisonment in the state of prison for life or for any number of years not less than 20 years.” In other words, the distinction of a second degree murder from manslaughter was a state of mind. Mrs. Hoyt pleaded not guilty and not guilty by reason of temporary insanity. The jury could have found her not guilty, could have found her guilty of manslaughter or could have found that she was guilty of second degree murder having a depraved mind. Florida counsel who tried the case, and by the way he is the courtroom today, challenged the jury panel of approximately 60 male jurors with a motion to quash. He challenged it on two grounds. First, that the statute under which the jury was selected was a denial of equal protection and due process. And that the method of administering the statute by the jury commissioners was also a denial of equal protection and due process. Florida is one three states which has a jury chosen under a statute which says that women are qualified to be jurors and then goes on to say that only those women who register with the clerk courts may be called. Potter Stewart: There are additionally three states, are they not, Mr. Ehrmann -- Herbert B. Ehrmann: There are additionally -- Potter Stewart: -- which should -- do not -- Herbert B. Ehrmann: -- three states which exclude women entirely. Potter Stewart: Right, right. Herbert B. Ehrmann: So that there are six states today, which either exclude women entirely or provide that they must volunteer. Now what happened in Florida is apparently what happens -- what has happened in states -- other states where they had this type of statute, we have cited in -- on the brief the reference to various authorities, mainly that where women have to volunteer for jury service there’s practically no pool out of which women can be drawn. It happened in New York and it's happened in other jurisdictions because apparently the -- to take the initiative and volunteer for jury service is an obstacle. One wonders how many men would be available if they had to volunteer. Felix Frankfurter: One of the argument as to women suffrage was that women would be more aggressive or at least more alert (Inaudible) than men. Herbert B. Ehrmann: Yes. Despite the fact that I shall argue that women and men are very different, they have both actuated by the same impulses on many occasions when one is to invite themselves to public service. Felix Frankfurter: Don't stress that too hard. Herbert B. Ehrmann: Pardon? Felix Frankfurter: Don't stress the equality of behavior between the men and women too hard. Herbert B. Ehrmann: Well, I thought I qualified it by saying there are certain particulars. Felix Frankfurter: You'd get into trouble (Inaudible) -- Herbert B. Ehrmann: I'm afraid I would. That's why I tried to be conservative in my statement. Earl Warren: I don't suppose you can say either that women are less active in political life than men, would you Mr. Ehrmann? Herbert B. Ehrmann: I would say that they are less active for certain reasons of tradition, and custom, and culture, but that they are very active in public life today, extremely so. In fact, one out of every 20 delegates to the United Nations is a woman. So that one out of 20 delegates in United Nations is a woman, but only four tenths of 1% of the eligible women in Florida registered. In 10 years from 1947 to 1957, 218 to 220 women registered for service on the jury. In the last five years, only 35 registered for service. Potter Stewart: Is that where, in the State of Florida, or in this county? Herbert B. Ehrmann: That's in the county. Potter Stewart: In this particular county? Herbert B. Ehrmann: In this particular county. So that out of 46,000 women eligible for jury service in Hillsborough County, only 220 were available as having registered. Felix Frankfurter: Have we got any -- have we any statistics as to the number of women that can serve, that are eligible in the federal courts in the Southern District of New York that can serve? Herbert B. Ehrmann: No, I do not have those statistics. I do know this, however, Mr. Justice Frankfurter knows that New York now has a different statute. Women may be exempted because (Inaudible), but nevertheless, there are many women serving on juries to the State of New York. So we have here a demonstration coupled with authorities who confirm that that's what's happened in other states that this type of statute just doesn't work and one wonders whether it was intended to work. I am reminded of Mr. Justice Black's remark that whether ingeniously or ingenuously women -- a certain class may be excluded. The effect of this is to remove women almost entirely in the jury list. Now, we come to the question of the administration of the law and we have this situation. The testimony, it is in the record, in the case that this is what happens. In this county they're required to make up a list, a reservoir of 60 thou -- of 10,000 names available for jury service and out of that 10,000 names a panel is selected. In this case, the jury commissioners through their clerk or through their clerk -- or through the clerk of court testified that they put in 10 names each year and approximately 10,000 masculine names, so that whereas on the operation of the statute only one-third of 1% would be available for jury service, when the jury commissioners got through only one-tenth of 1 % were available for jury service. They gave no explanation of this other than to say that they had always done it and this was the testimony on page 17 of the record. The lady who made up this list of 10,000 names said, “Mr. Lockhart told me at one time to go back approximately two or three years and get the names because there were recent women.” And she said, “Well, the reason I placed him is, I went back two, three, or four years and noticed how many women they had put on before and I'd put on approximately the same number.” That is for four years, they had put only 10 women's names in and she did the same. John M. Harlan II: When did the statute in Florida (Inaudible)? Herbert B. Ehrmann: I think 1927, yes. John M. Harlan II: (Inaudible) Herbert B. Ehrmann: I do not know. I only have a guess. Felix Frankfurter: They probably exclude it altogether, weren't they Mr. -- Herbert B. Ehrmann: I think that is so, but I would be guessing. Now on page 19 of the record, we find that this took place. They used up 2500 names of 10,000 from the year before so that the jury commissioners then were putting a new 2500 names into -- to make up the 10,000. They couldn't use the names of those who've been drawn so they put in another 2500 names. Now when it came, if Your Honors please, to the second 2500 names, no women at all were put in. And when asked why that was so, they said, “Well, we had 10 names in there that weren't drawn from the year before, so we just let them ride.” So that apparently for years also, they just kept these same 10 women in there, in the -- as available jurors and never went to the women's list at all and this is her testimony. “In 2500 that you added, were there any new women added?” “No -- there were -- no, there were no new women added.” “No new women added at all?” “No, just the ones that were in the box still of the 7000, which were those that were left from the preceding year.” “So then on March 8, 1957, no women's names were added to the jury list?” “Well, they weren't added, no. We just used the ones we had” and then a question by Mr. Hobbs, “In putting this in March 8, you didn't pay a bit of attention to this list at all,” meaning women's list, “You didn't use this list at all?” Answer: “No, we just used the women that were left in the box.” There was no explanation for this. I think it was just -- it must have been that (Inaudible) the rest of the testimony, they just weren't taking it seriously, that's all.” Service of women on jury, hardly any of them volunteered. They paid no attention to the duty to see that a representative jury was chosen. Now, this absence and exclusion and limitation of women is highlighted by the fact that of this particular case. The issue in this case as told by the Judge Rothman's majority opinion was the effect on the defendant's mind, state of mind, of the events which she described in which the court found to be with -- without dispute to be the facts. You see, the jury in this case was not called upon to reconcile conflicting facts. There is no doubt that Mrs. Hoyt struck her husband. That he was sent to the hospital. Immediate medical attendants couldn't help him. He died during the night. So that there was no issue of fact as to her committing the act was concerned. The only issue before the jury was what effect did the marital discord at her attempts to get her husband to come back to live with her at his flat as you will see from the judges -- statement her flat -- that his flat refusal have anything more to do with her in his declaration that he was through and he is going to leave her and her little boy the next morning for good, never wanted to see her again. And it was at that moment which the court describes she happen to have a damaged bat in her hand which her boy had found in an alley during the day, that had left on the floor and just as she picked that thing up, he then signed off. He said he was through with her. He never wanted to see her again and that's when she struck him and struck him several times, apparently in a frenzy. She was an epileptic. You will see here there was no dispute as to her medical history. She was an epileptic with damage to her brain and she went out of control. Now, I'm suggesting to Your Honor that I don't believe a professor at a law school could think up facts of a case which tested this issue of the exclusion of women from a jury more than this. This was a domestic affair. This was a husband and wife matter. This was -- involved all the complex emotions that exists in a relationship of that type, a woman's efforts to reclaim her husband, his scorn, her outburst. Now apparently, the men thought that what she did was evidence of a depraved state of mind. We don't know what women would have done on that jury, but shouldn't she have had the chance of having a woman on that jury who would have said that -- now, wait a minute, this woman saw her home, her husband, and a father of her child go away. In one final statement she made and that came at the climax of the day of considerable emotion in which she had struggle to reclaim. Maybe she wouldn't have said it, maybe it wouldn't have any (Inaudible) -- wasn't she entitled to have people who think like that on the jury. We have put in on the brief here references to sociological studies showing the difference in approach frequently between men and women. I think they tend to backup Mr. Justice Douglas's statement that they're not fungible, men and women are not fungible. That women emphasize more the home, children, husband, their approach is far emotional. They are mediators rather than aggressors in discussion and after all, I don't think that these studies tell us anything we don't know. They tend to corroborate the obvious because all of us know whether it is from literature, what every women knows by berry or (Inaudible), men and supermen or -- that celebrated song that in My Fair Lady, why aren't women like men, that there is a difference and they think of as different. And that while individual women will be different from men about -- perhaps be not so very different from men -- as a class they are different. I am reminded of – (Inaudible) was once introduced at a suffragist meeting as a woman with a brain of a man. And in responding to the introduction she said before I regard that as a compliment, I'd like to see the man whose brain I have. Now, Mrs. Hoyt was denied in a case in which it is thrown into high relief, the mediating, the understanding of a woman who sees her home, the father, the child and the husband going away after as I said it, terrifically tensed emotional day. I will not go into all of the facts. You -- Your Honors will read them, but that was the situation. It is a question of evaluating how far these pressures broke her down which would have made all difference in the world between a decision as to whether she was suffering from temporary insanity, whether it was manslaughter, or whether she had a depraved mind. And this jury of 12 men decided that she had a depraved mind. And so she was sentenced to 30 years at hard labor and so we are here before Your Honors. Now I don't think it requires very much argument just to show that women are a different class. We live with these things so much, if Your Honor please, that we forget that they exist. It's like a person who is working in a factory and the hum is constantly going on, he doesn't even notice the hum anymore. My associate, Mrs. Dreben here who wrote most of the brief experimented by asking men what they thought of this case. Well, some were indifferent, some thought -- the moment she would say to them, supposing that a man was being tried for killing his wife or his mistress in a rage and supposing the jury consisted of 12 women, what would you think then and that apparently woke them right up, they said of course, that wouldn't be fair. The thing is that we just get accustomed. There's been no class I might say in all history that has been so universally and persistently discriminate against in women. It's only on the last half century that they've been emerging from a position of inferiority. They are also excluded from eating spices, but I don't notice that they are having sit outs as a result of it, but there is this short division. And -- while -- during the certain periods of time as Your Honors know that -- they were -- they had no legal personality at all particularly if they were married. Felix Frankfurter: You sure you haven't -- you remarked a minute ago, that there's an incitement of breach of the peace. (Inaudible) -- Herbert B. Ehrmann: It might be if I was ordered off the premises, if I follow the discussion right. Felix Frankfurter: And if you're a woman -- Herbert B. Ehrmann: Sir? Felix Frankfurter: And if you were a woman? Herbert B. Ehrmann: And if I were a member of an excluding class? Felix Frankfurter: Yes. Herbert B. Ehrmann: That is true. Now, I'm not going to argue the law at length because to speak frankly, nearly everything I have learned of constitutional law in this area I've learned from you. I mean the last 10 or 15 years has been remarkable for a development of the law relating to this whole question of the selection of jurors, both in the majority opinions, in the dissents and the concurring opinions for different reasons. One by one, the early distinctions have been removed by this Court such as that it relates only to color and race because the Congress have passed the statute on that subject. Or, that you have to show prejudice to show denial of equal protection, or the fact that -- our concepts of equal protection have been changing. I remember in one of the cases Mr. Justice Frankfurter has said, it's about time that we recognize the fact that we now have a different perception what constitutes equal protection. This Court has been bringing in many of the judges that are sitting here, have been bringing the constitutional question on the selection of jury abreast of the times. There's no longer any distinction as to it -- that if a class is an economic class or if a class is not one of race or color but of a nationality or of any other group. In the Hernandez case which firmly states that if a defendant is a member of a class which is excluded and there is no justification for it, it is a denial of equal protection, and that's the situation that we have here. I suggest to Your Honors that the only issue that we have is whether or not there is a sufficient justification for this statute. If there is, then the statute is constitutional, but it's no excuse for the behavior of the jury commissioners who arbitrarily limited what little chance there was. But what justification is there for the statute? The trial judge himself who apparently belongs to the old school, if you read his ruling on this subject that women were descended to the level of men when they got equal rights, even he said it's a silly statute, but it's not for me, it's for higher court to say whether it's constitutional. It's true, the majority opinion goes back to the women's places on the home and urges that, but the majority opinion doesn't -- I mean the minority opinion also regards to law as a completely unjustifiable law. Women are fully participating in all aspects of life today. I -- my attention has just been called to another item here that I forgot to mention. I had stated that there were 218 to 220 women who had registered. The trial judge in justifying his ruling on the administration of the law stated that 27% of the available women were on the 10,000 list and the 10,000 was 15% of the men, 60 odd thousand. How we happened to make the error, we don't know because it was only 3%, 4% and 5%. And apparently the Supreme Court of Florida accepted that error and it was discovered when we were preparing the appeal papers. So that we have a situation whether a very few women -- the women were cut out on the jury commissions and then the judge who tried the case in his ruling through a gross error misrepresents the number that were available. Felix Frankfurter: Mr. Ehrmann, later -- December 1946, this Court didn't -- I think I was justified in saying it in my dissent, the court didn't rule that as a matter of due process which under the federal law impliedly include equal protection that the exclusion of women constitutes an inroad upon the Fourteenth Amendment or the Fourth Amend -- the Fifth Amendment. Now, that was 1946, we now have 1961. Would you say to the fair statement of the problem in this case to say that what we really -- what I really have to decide for myself is to what extent -- the law still reflects history, is that a fair statement of the real problem? To what extent -- Herbert B. Ehrmann: Well -- Felix Frankfurter: -- would catch-up with this movement of which you spoke, the -- Herbert B. Ehrmann: Yes. Felix Frankfurter: -- what extent -- Herbert B. Ehrmann: Well -- Felix Frankfurter: -- of the decision -- Herbert B. Ehrmann: I don't know but -- Felix Frankfurter: -- exhilarate on constitutional grounds. Herbert B. Ehrmann: Well, the Fifth Amendment as I understand it has not been incorporated in the rule that it applies to states. But I would -- I want to answer Your Honor's question. Where we have a question of justification, I want to answer to the best of my ability, where we have a question of justifying a state statue, it seems to me that we should not justify a 20th Century anachronism by justifications that might have been valid 100 years ago. And I think Your Honors, you're one of the first to recognize that with in some of the decisions that we are not using ancient justifications to justify injustices of today. Felix Frankfurter: Is that a -- I can think of other justifac -- other consideration, namely, if women are as politically aggressive as they are, that they really want not to have a system like this operate whereby they have to come forward and say, I want to serve or that a legislature may take that into account. That they expressed really the feelings of the women at large as a group instead of being discriminating against and this statute may be deemed a reflection of their desires. If they really wanted to be called like men, there'd be no trouble about getting that legislation through even in Florida, would it? Herbert B. Ehrmann: Why? I suppose. Well that, I couldn't say because I don't know -- Felix Frankfurter: No. But (Voice Overlap) -- Herbert B. Ehrmann: -- where the control lies in the power of the legislature. They -- but I would say this that I am not here urging the right of women to serve on juries. I am here defending a woman who is sentenced to 30 years at hard labor because she -- at least I won't say because but without the benefit of having women on the jury. Now if the statute operates so that women don't come on the jury and if there is no such statute women are on the jury, then I don't think we need to discuss it. Charles E. Whittaker: Mr. Ehrmann, may I ask you please sir. After the 1956 list of 10,000 had been prepared and 3000 of them had been we will say, used up lessens only 7000. Had any women registered for jury service before the 3000 names were put back in to bring the list up to nine -- to 10,000? Herbert B. Ehrmann: Mr. Justice, we do not know. We -- all we know is that between 1952 and 1957, only 35 women registered. That's as far as our knowledge goes whether -- where any new registrations in that last year or not, I don't know. We haven't any record. Felix Frankfurter: There are of course two questions -- I beg your pardon. I'm sorry. Charles E. Whittaker: Well that's -- that's alright. Herbert B. Ehrmann: But we only that in five years, only 35 women registered but whether any of them registered the last year just before this year, we don't. Charles E. Whittaker: It was of significance to my way of thinking because suppose the administrators of the jury list said despite the fact women have elected to serve by registering, we're not going to pay any attention to it. We'll put back to 3000 all men and leave the women out. That might very well be a systematic discrimination against women, but if there weren't any women who had elected to register, it couldn't be said, could it, that there was a systematic discrimination? Herbert B. Ehrmann: Well, where year after year for four or five years, they limit the number to 10, Your Honor I suggest that that alone would be discrimination. There were two -- there were in addition to the 10 that were in, there were about 208 to 210 other women that could've been chosen just as there were these men. We don't know -- you see, men didn't have to register. They were already on the elector's list. Charles E. Whittaker: Yes, but there 60,000 men who are eligible you say and only 10,000 men and women on this list. Herbert B. Ehrmann: That's right. Charles E. Whittaker: In the wheel as I would call it. Herbert B. Ehrmann: Yes. Charles E. Whittaker: So, there might be some disparity, but there wasn't an exclusion of either sex from the wheel? Herbert B. Ehrmann: Well, there certainly wouldn't have been any exclusion of men, where 10, 000 names were put in, all male. Now, Mr. Justice Whittaker, don't you think that if they don't put in more than 10 names whether they're the old 10 names, or new 10 names, that that is an arbitrary limitation? And this Court has decided in several cases that limitation is just as bad as exclusion. Now -- Charles E. Whittaker: I don't know what the mathematics are. It'd be 218 to 64,000, wouldn't it? If 218 women who have registered and 64,000 men were -- Herbert B. Ehrmann: Yes. It would be by one third of 1%. Charles E. Whittaker: And there were 10 out of -- 10 women and 990 men in the wheel. Herbert B. Ehrmann: Three tenth of 1%, approximately. So they reduced the chance from one third of 1% to one tenth of 1%. It's a pitiful chance in any event but they reduces that. Felix Frankfurter: May I ask you this question before you sit down. There are two questions as I see it in this case. One is -- well, one is that the statute as such requiring them to come forward and express willingness to serve as a juror, if that as such is bad, offends due process. Herbert B. Ehrmann: Yes. Felix Frankfurter: The other question and which I wish without arguing, you just summarize what the -- what your case is, the other problem is that even that system, even that system which allows them and to come forward has been so administered that in its actual operation it doesn't give voluntariness an adequate chance to operate. Herbert B. Ehrmann: Well Your Honor summarized it so well, I see no reason why I should violate my red and white light and talk any further. Felix Frankfurter: You do not violate anything if you answer the question. Herbert B. Ehrmann: Well, I agree a 100%. Felix Frankfurter: But if the -- what is the supporting evidence in the latter, for the latter statement namely, that as it operate -- as it was administered, the element of voluntariness wasn't actually operating. Herbert B. Ehrmann: Well, the only way that we can gauge this is by the -- is by the way the list itself was administered and they administered it by arbitrarily limiting to 10 each year, the number that were available. Now -- Felix Frankfurter: Not even the same 10 or it doesn't matter, just -- Herbert B. Ehrmann: It doesn't matter. The fact that they put the same, it didn't -- they did the same -- and they didn't even look at the list indicates that they thought it was a joke. Felix Frankfurter: So that the area -- Herbert B. Ehrmann: But other than that, if there's no legal difference between the two. Felix Frankfurter: So that the element of chance by which you pull out one ticket rather than another was necessarily reduced if you only add 10 out of which to pay? Herbert B. Ehrmann: Right. Felix Frankfurter: That's your point. Herbert B. Ehrmann: That's it, exactly, yes. Earl Warren: Thank you Mr. Ehrmann. Herbert B. Ehrmann: Thank you. Earl Warren: Mr. Georgieff. George R. Georgieff: Mr. Chief Justice, may it please the Court. Before I address myself any to these propositions, I'd like to thank the indulgence of the ladies in the audience and of course my good wife wherever she happens to be for the things that I'm about to say. They may not quite square with what woman would think. First, I'd like to say that a pronouncement made here today that this is the first case that has come to this Court's attention involving this precise problem is not quite correct. It is the first case in which we can expect an opinion of one sort or another, but in the case of State versus Drafer which I have cited in my brief that came out of Louisiana, it pays me to admit that all you did was deny cert. I could've used an opinion has it been on my side, but you didn't do that, you simply denied certiorari. Their statute is literally a mirror of this one. It requires that they go to their District Courts and register their wish to be considered as jurors. I don't know why you did, therefore I'll discuss it no further. Earl Warren: Was the defendant there a woman? George R. Georgieff: Yes indeed. It's a red flag case in every particular except that no opinion was written. Now, I think that the first question to be determined or discussed in any case is whether the statute is constitutional because if it is, then and only then do we have to get to the proposition of whether this jury commission functioned properly or it didn't. Now of course if it isn't, there's no point discussing that. It's sort of like putting the cart before the horse. I say it's constitutional because you have said it was in Strauder versus West Virginia and you haven't yet changed your mind. You may after today, I don't know that, but in any case, all of the glowing statistics that we have to support the proposition that women are no longer the backward crew that we have made them since time immemorial, or I take it brought forth to demonstrate one thing, that is to say that they are eminently qualified to serve as jurors. I do not say they're not. They probably were many years ago, but I do say that when this Court considered the proposition in making its dictum statement in Strauder versus West Virginia, I do not believe that it made that pronouncement because women do not comprise 38% of the working force, nor that they have made inroads on politics, business, economic, and social levels. I think they did it because of classic differences that no attainment can change. They are women because they are women. They have functions to perform that no ascension of the scale can make any difference here. They bear our children. They're the ones (Inaudible), not the men. We may find isolated cases of this but in the main, this is their function until that is changed we can't even address the proposition. What move this Court to say what it did in Strauder versus West Virginia was not the reverse of it -- of the statistical approach, but rather that there were things that women were confined to in that their very nature required them to perform to the exclusion of men. They have to take care of these things not the men and it was likely the opinion of this Court that to require them to serve in this capacity would make it difficult for somebody to raise these children, to prepare the food, to keep the home, and to do other things that woman customarily do and to this day do. Now -- Earl Warren: I wonder if -- I wonder if that wouldn't be capable of other -- another kind of solution there, not everyone has small children that she has to raise. There are great many of them that have none, a great many of them that are married, there are great many of them whose children have become matured and I wonder if they couldn't -- who are better have a statute that would exempt them if they had home duties of that kind just as we exempt a lawyer or a doctor or a minister of the gospel and so forth. But I don't think we can start can we with any premise that all woman should be disqualified because a great many of them are the mothers of our children. George R. Georgieff: I did not mean Mr. Chief Justice to start with that premise, carry it through or bring it up in the future. I will address myself to the position you've taken in just a few moments. Earl Warren: Oh, go ahead. George R. Georgieff: First, our statute does not exclude any women. In 1946 when this was considered, we had a statute 40.01 which is precisely the one we have here which made no reference to women. They could not serve on a jury on Florida until 40.01 was amended to read as it presently does and as it's cited in the brief. Now, that does not exclude women in any degree whatever. They are required to be qualified electors just as men are. The only further requirement is that they go to somebody and say, “Look, I'm not possessed of any of these infirmities that you've recognized over the years, therefore, consider me when you pick up this jury list and include me in it. I have time and the inclination to do this.” If we had said or if we were here on the proposition that women cannot serve on a jury, it might well be a different story. I suppose I'd be a little more hard put to answer the position that you've taken Mr. Chief Justice, but now, this simply says, “You are the ones that must go to the judge if we don't have this”, and say, “Well look Your Honor, I have seven children at home and who is going to take care of them.” And he says, “Alright ma'am, you don't have to serve on this jury, go on home and take care of your family.” So what is the difference if she now decides that because she does have the same seven children, she won't go to the clerk unless and until such time she has the time, inclination, and the ability to do so. They have throughout their brief taken the position that why do we have something like this when the judge enjoys a broad discretion and he can release somebody of the requirement of jury duty, especially if they have these pressing problems. I concede that he does and if he does, what difference does it make that she exercises it affirmatively by going to court in response to the summons, or does it beforehand according to the statute. If she is the one who is able to determine whether she can and will, then surely she should be able to do it now and this was substantially the same thing that you had in Fay, Fay versus New York case. Now, there the court concluded that it did not violate due process to have a jury that was enlivened by a woman. Now it's true that a woman wasn't the defendant in that case, but even in the dissent it the Fay case, nobody made any mention of the fact that women had been effectively excluded, such as they say here today. The point is, I made the distinction which I think is a valid one, and of course the court may not agree, but I said the difference is in availability and eligibility. The law does not say that women aren't eligible to serve as jurors in Florida, It simply says, “If you want to become available go to the clerk.” Now they are the ones who guard the availability. If they don't go, they're not available. If they do, let's presume that the 46,000 in Hillsborough County had all of the sudden decided that they wanted to serve or be considered for service as jurors, and they all went into the clerk, their argument must be just as sound if every one of them were down there. Hugo L. Black: May I ask you -- George R. Georgieff: Yes sir. Hugo L. Black: What would think about a law that said, “No men should serve on the jury unless they come up and say they want to do so.” Would that (Voice Overlap) -- George R. Georgieff: I should imagine that -- Hugo L. Black: Would that raise any different question? George R. Georgieff: Not to me sir, no it wouldn't. As to the difference between the two it would. Hugo L. Black: As to what? George R. Georgieff: Well, in other words, if I take the position that it makes the difference if we say that to men, then obviously my position now is got to be fallacious. All I'm saying is that the reason we have this difference with women is because they are the ones that do have all these infirmities that no amount of ascension on the social scale can erase. Now that's one that I can't change no matter what I do, so it's unlikely that this would be the case. This is unfortunately a man's world and for some time, I must -- I'm afraid it's going to remain one and I don't know that I can in good conscience -- Hugo L. Black: At least in theory. George R. Georgieff: Well, perhaps so. I stand corrected to that extent, but -- alright, let's just say that it is, whether we honestly believe it or not, but until such time as on the surface it becomes something other than that, I can't in good conscience say, “Well I could see that this would be the same situation if we said that men had to register.” In other words, it's like envisioning $700 billion. It doesn't mean anything to me. I don't know how they could do this with the structure of mankind being what it is. And -- Earl Warren: When you speak of infirmities, fundamental infirmities for this service, do you mean anything except that women are homemakers? George R. Georgieff: No, an ill choice of word Mr. Chief Justice. All I mean is the traditional reasons that women have to stay home. In other words to prepare meals -- Earl Warren: Yes. George R. Georgieff: -- to raise children -- Earl Warren: Yes. George R. Georgieff: -- keep the house, etcetera. Earl Warren: Yes, yes. George R. Georgieff: Nothing more. Felix Frankfurter: Will you -- make a difference, how many women -- what the experience in other jurisdictions has it been as to excuses given by women to serve on juries where they're required to serve? George R. Georgieff: I'm afraid -- Felix Frankfurter: Suppose -- George R. Georgieff: I don't quite understand. Felix Frankfurter: Suppose -- I don't know what the -- that's why I asked a question to Mr. Ehrmann, suppose the experience has been because I'm quite sure it has been, that many more women ask to be excused from jury duty than men do, that would a relevant factor in shaping the kind of legislation that a state shape -- that a state shapes (Voice Overlap) -- George R. Georgieff: I quite agree. Felix Frankfurter: -- jury duty by women. Hugo L. Black: I think probably that was considered as a relevant factor in the Thiel case? George R. Georgieff: Yes, as a matter of fact it was, that was the case where the wage workers, the hourly wage workers were discriminated against, Thiel versus Southern Pacific I think. That too probably would be a factor here, but as I say, I think that this statute considering what we had in 1946, as a decidedly salutary effect for the women of the State of Florida. Now admittedly when people are required to go down and do something, experience, I suppose general experience that we can all take knowledge of, judicial knowledge of is the fact that they're reluctant to do so for whatever reason, but my point is very simply, if all 46,000 of them had gone down and registered, essentially the position of the appellant has got to be the same. Because if the condemnation is directed to this requirement of registration, it doesn't matter whether one did or all of them did. If you're going to condemn it because of that requirement, then I don't care whether anyone -- any of them did. It's the requirement that you're after and my point is very simply that it isn't a requirement. It's simply allows them to determine beforehand whether they will or won't. Charles E. Whittaker: Well, the question you're talking about now, if I may say so, appears to me as answered by the proposition of whether there is an exclusion, isn't it? And here if the women may elect to serve if they wish, all or so many as do, none were excluded, do you think so? George R. Georgieff: Mr. Justice Whittaker, I think I first said at least in the first few pronouncements that I've made that there was no exclusion of any kind. And then I further said that I made the distinction between eligibility of women for jury service and availability and I think that constitutes a two-fold answer. There is no exclusion whatsoever. Now it may be that no woman is ever picked by chance out of the jury box. I don't know that that will ever happen but it may not and then again you've got to condemn. I simply say that this doesn't exclude any of them if they want to serve. Now, these cases that they have cited for the proposition of this has got to be condemned because of a systematic exclusion there was that precise thing either by statute or by operation. Charles E. Whittaker: Would you agree (Inaudible) George R. Georgieff: Well, I wonder how much mathematics would be involved before I answer that. In other words, if only one had, I don't know what I would say, probably no. Charles E. Whittaker: Suppose the population of the (Inaudible) George R. Georgieff: Yes sir. Charles E. Whittaker: (Inaudible) George R. Georgieff: Well, again I've got to go back to the cases that they have cited in support of their condemnation. Now, what do you decide is a systematic, intentional planned exclusion. Charles E. Whittaker: (Inaudible) George R. Georgieff: Well, is that one -- just a one time, isn't that enough to condemn it, I say, “No.” Charles E. Whittaker: (Inaudible) George R. Georgieff: It's just my opinion. Earl Warren: Suppose you think for a series of -- through a series of years that they have 10 every year and no more. George R. Georgieff: Considering if they had up until 1952 and I maybe a little incorrect in my mathematics, in Hillsborough County they had -- let's say 228 less 35 that registered between 1952 and 1957 which is our critical year, considering that that was so, I should say that if they did that, did not add anymore than the ten, that if it was a requirement that they add, we'd soon run out of women's names if we have no further registrants, because it all turns on whether they come down to register. Now, this business of adding to them each time you have a depleted box, I understand the consternation, but if you have to add in order to serve, in order to serve this idea of not being systematic in your exclusion, then if you don't have enough of them who have registered, what happens when you run out of them? Earl Warren: Well doesn't the fact that you always have 10 show some kind of a system whether it's systematic exclusion or whatever it is, if you always have 10 in the box over a period of years, isn't that some kind of a system? George R. Georgieff: It sounds -- some type of a continuous number. The record doesn't support simply 10, they said 10 or 12. Now of those that were available to them they couldn't simply pick out a woman elector's name for then they would have been violating the law, because it requires that they take only of those who had registered. Now of those that were available to them to select from either this was or was not a representative group. I think it's just as simple as that. Our Supreme Court in writing the affirming opinion did not conclude that Judge Grayson's figures were correct nor did they adopt them. Mr. Justice Drew in writing the majority opinion simply cons -- simply said that this is a representative portion of the available women jurors. Now, obviously if the court disagrees with that pronouncement, then there is nothing I can do, but either it is or it is not representative. Now somewhere along the line, it got to be arbitrary. The jury commission has to pick either this name or that name. Now, of this 228 or whatever it was that were available, they decided somewhere along the line somehow because they're vested with a certain amount of discretion that of this amount, 10 should be a representative number and they did that. Felix Frankfurter: Why they didn't throw in all the 200 odd? George R. Georgieff: Well, that's a good question Judge. I wish I could tell you. I feel a good deal better if they had but unfortunate that's not so. Felix Frankfurter: (Voice Overlap) -- the legal -- is it irrelevant? George R. Georgieff: Well, as I said before -- Felix Frankfurter: (Voice Overlap) – we're not here to answer -- ask good questions, we're here to ask relevant questions. George R. Georgieff: Truth of the matter is -- Felix Frankfurter: (Voice Overlap) -- George R. Georgieff: -- it wouldn't have mattered a bit. Earl Warren: I thought you explained a moment ago that the reason they didn't do it was because if they put more of them in, they'd soon run out of names entirely. George R. Georgieff: Well, I am still addressing myself to the proposition that this statute is constitutional. Earl Warren: Yes, but Justice Frankfurter asked you why didn't -- if -- when you have so few women, why didn't you put in all the women and I thought a little while ago you said, if we kept putting in more and more, the first thing you know, we would -- there wouldn't be any women on the list. George R. Georgieff: Well, if we say, why did we not put in all the 228 or whatever it was, let's say 250 names, why didn't we go on ahead and put in the whole 114,000 qualified electors? It isn't necessary. Felix Frankfurter: Well, I don't understand -- I'm not questioning you, I just don't understand what that means. Suppose, they'd all been put in, would that have -- would that have rendered it and they've picked only and out of the lot there, (Inaudible) to pick three that become jurors, would that have rendered the other's functus or functus, I suppose I rather say, functus officio (Inaudible)? George R. Georgieff: Again, I must confess I don't think I understand the justice. Felix Frankfurter: What would be the consequence if they put in all the available jurors that were on the list, in (Voice Overlap) -- George R. Georgieff: All of them? Earl Warren: The women. Felix Frankfurter: The women. George R. Georgieff: The women. Felix Frankfurter: All the women. George R. Georgieff: Alright. Felix Frankfurter: What -- suppose that (Inaudible) -- and you carry on from there with this consequence, what would happen? What would've happened? You said you wish they had? George R. Georgieff: Well, it would've increased the margin or the percentage opportunity that the appellant would've had of securing one when they drew the petit jury panel. Felix Frankfurter: Well, but that's rather important, isn't it from the defendant's point of view? George R. Georgieff: To be sure, but it would have been equally important if we had nothing there to prevent all of 46,000 women electors in Hillsborough County from being available. Felix Frankfurter: But they weren't and they -- I'm assuming with you for purposes of my question, I'm assuming that the statute is constitutional. I'm now asking you as I asked Mr. Ehrmann, what the actual translation into administration of that system was and out of the available lot, they picked 10 in a total of how many, how many are they? George R. Georgieff: Well, there's a difference judge and -- Felix Frankfurter: (Inaudible) George R. Georgieff: Its somewhere around 228, I think. Felix Frankfurter: No, no, no, in the total jury potential? George R. Georgieff: Oh. Speaker: (Inaudible) Ten out of 10,000. Felix Frankfurter: Ten out of 10,000. George R. Georgieff: Just ten less than 10,000. Felix Frankfurter: Alright. Now just (Voice Overlap) -- George R. Georgieff: (Inaudible) Felix Frankfurter: In the law of probability, if there had been 225 women's names, the chances of drawing a woman's name would have been greater than if there had been only ten women's name. George R. Georgieff: To be sure, no question about it. Felix Frankfurter: To be sure. Now what I am asking you is why didn't they put in all of those names and you said they wish they had. George R. Georgieff: No, I wished they had. Felix Frankfurter: You wished, yes that's what I -- you wished they had. Presumably that would have made a different case, what would have been the difference? George R. Georgieff: Well, at least then, I would be able to come before you and say, “Well now look, they followed the statute as it is and they took everyone of them that they had available.” Felix Frankfurter: Is it -- I'm asking you now, why as a matter of administration, wasn't it an arbitrary administration of the statute to restrict the available drawing power of women to ten out of a total of 10,000. George R. Georgieff: But the record doesn't bear it out to be arbitrary. Felix Frankfurter: Well it -- suppose you said 10 or 12, suppose I give you 15, there's no suggestion that there were more than -- somewhere around that. George R. Georgieff: Certainly not. Let's limit it to 12. I think the record will bear that out. Felix Frankfurter: Alright. Let's say 19, I said two digits, 19. Suppose there were 19 in that, I want to know why with so limited a supply of women and presumably the legislation, lest we suppose that women are a desirable ingredient concept in the jury -- in the jury system. George R. Georgieff: I would say, yes of course. Felix Frankfurter: Yes, alright. So that that was as a policy behind the statute of having women respecting however the special functions of historic reasons or all the other considerations that you canvassed, assuming all of that, it limits the number of available jurors. I want to know why the system was so administered that it allowed the including of woman in a jury actually drawn with so small result on the basis of probability. George R. Georgieff: Well I take it Your Honor, the only -- the only response I can make that's borne out by the record is, if the 10, 12 or 19 that we settle for is representative of those that they had available to them when they first filled the box, that it was representative, if they hadn't used any others when they refilled it. Now, if it wasn't representative, at the time they originally compiled the 10,000, of those 218, that requires a decision to be made by the jury commissioners that in this vast scheme of the jury system we have to have women because it has a salutary effect. They are not required to do that. They are simply required to select people from the list of available qualified electors who in their arbitrary choice are people who are going to be considered as jurors. Felix Frankfurter: But I can think it makes a difference whether you have 10,000 out of which to draw where only a relatively -- or only 200 out of which to draw. Suppose he had only -- suppose only 50 women had come up and said, “We like to serve on juries.” And the jury commissioner had drawn only -- had to put only the name of five women in this wheel, would that be alright? Could it be -- this is allowed in arbitrary choice? George R. Georgieff: It would have to be just as alright as this position in order for me to be sound on all flags. I couldn't take it -- Felix Frankfurter: Well, if there's only two. I don't mean to argue (Voice Overlap) -- George R. Georgieff: No, I understand. Felix Frankfurter: One goes to a certain distance, one has to go beyond that, I don't believe in that argument, that mode of argument. George R. Georgieff: No, I think -- Felix Frankfurter: I just want to know whether a system which inherently by experience has shown to lead only a few women to come forward to be ready to serve as jurors, and if the policy of the state is to have women on jury, that is the policy of the state, restricted though it is, isn't it, whether an administration which arbitrarily limits to so smaller chance of a woman being on a jury having some infirmity of its own, notwithstanding (Inaudible) George R. Georgieff: Well, perhaps so. Perhaps so but I think that if that infirmity, if you back it up by saying, “It's been demonstrated over the years that only a handful of them do come in and register” and of course that's so in Hillsborough County by the actual count that the record bears out, then let's address ourselves in the fact that the legislature should change that. If it's brought to their attention, let them alter it. Felix Frankfurter: You mean, only a handful come in to do what, to serve? George R. Georgieff: To register with the clerk their wish to serve. After all 228 out of 46,000 is not too many. John M. Harlan II: Isn't the real issue on this second branch of the case purposeful discrimination? George R. Georgieff: Yes indeed. John M. Harlan II: Whether or not you can draw the same inference or systematic purpose for discriminatory exclusion of women. In the context that this situation that we have drawn in the context of racial segregation? George R. Georgieff: Yes indeed. John M. Harlan II: Isn't that the issue? George R. Georgieff: I couldn't say it better. Charles E. Whittaker: But there may be admitted some inequality, some discrimination (Inaudible) and not intentionally done, that's alright, don't you think? George R. Georgieff: Yes indeed, precisely. You can look at the record and if you listen to Mr. Ehrmann, he said to you, that they took this lightly, didn't pay any attention, they had simply said, “Oh well, 10 or 12 before, we'll put in 10 now,” that's not systematic plan of exclusion like you've condemn. John M. Harlan II: I suppose a woman under statute who had volunteered and registered, one of the ten in the box who -- since that act of registration and decided their family duties were important. If you made a mistake you'd come down and claim her exception under your statute when she was called for a venire, didn't you? George R. Georgieff: I am satisfied she could. I don't have any doubt of it, I don't believe. Assuming that the discretion of judges is much the same over the country, I'm sure that he wouldn't (Voice Overlap) -- John M. Harlan II: Oh, it wouldn't be a matter of discretion would it? It would be matter of right. George R. Georgieff: Well, if -- John M. Harlan II: (Inaudible) I just want to withdraw my -- George R. Georgieff: Oh, with the clerk -- John M. Harlan II: -- registration. George R. Georgieff: -- of the Circuit Courts, she could pick it up I'm sure anytime she wanted. John M. Harlan II: Anytime? George R. Georgieff: Anytime at all. Now -- Felix Frankfurter: Let me ask you Mr. Attorney, in the actual -- in the actual life as far as criminal prosecutions, what experience can you give to the Court as the presence of the women on juries in the past? George R. Georgieff: Well, I can tell you firsthand about the county in which the state capital is located, which is Leon County and has a high incidence of criminal practice, a petit jury panel in the last four years has seldom, if ever been drawn, that did not include a woman. Now I couldn't pretend to speak for the 66 remaining counties, I don't have any idea and there is no way that we keep track of it and possibly the clerks in the Circuit Court might have (Inaudible) -- might give us some information but I don't really know in Miami -- Earl Warren: How many are in the panel? How many are on the panel? George R. Georgieff: Well of course, Mr. Chief Justice that would of course vary with the right of counsel to reject. I'd -- Earl Warren: Yes, well you -- I understood you to say that at least there is always at least one woman on a panel and -- George R. Georgieff: Yes. Earl Warren: -- and by panel, how large a group do you mean? George R. Georgieff: Well in the capital cases, they invariably have one. In the less than capital, which is a six-man jury -- Earl Warren: Well by panel, do you mean the jury itself on the trial of the case? George R. Georgieff: The petit jury panel. Earl Warren: You -- yes. George R. Georgieff: Yes. Earl Warren: Well, by panel -- George R. Georgieff: Isn't that your question? Earl Warren: -- that's what you meant those from which the trial jury was selected? George R. Georgieff: Oh, the number that are registered? Is that -- Felix Frankfurter: I wanted to know what the Chief Justice has asked you? How many served on the trial jury? It's what I want to know, in the county of yours, in capital cases? George R. Georgieff: Well, by actual count, that'd be difficult since the number of them do it by repetition. If you -- Felix Frankfurter: But you said the normal (Inaudible) murder -- certain in capital cases or -- George R. Georgieff: Yes sir. In the past four to five years which is the only time about which I can speak of (Voice Overlap) -- Felix Frankfurter: Did you say you have a jury of six in -- what you said -- George R. Georgieff: In anything less than capital, it's only a six-man jury. It's 12 only in capital cases and eminent domain proceedings. Hugo L. Black: Do you refer the panel as complete venire in the selection in a capital case from which the jury of 12 can be selected? George R. Georgieff: No, I had specific reference Mr. Justice Black to the ultimate panel which hears the cause. Felix Frankfurter: There's 12. Hugo L. Black: Ultimate, 12 men. George R. Georgieff: Yes. Speaker: (Inaudible) George R. Georgieff: That's what -- I thought that's what the justices' question was. Speaker: If that wasn't -- Hugo L. Black: How many do you summon in a capital case? George R. Georgieff: Oh, I think they start out in groups of 75 and they exhaust that if they have to then go to the next 75 and -- Hugo L. Black: Do you know anything about that? George R. Georgieff: No, sir. I -- I never come to that stage of it. I couldn't tell you. Essentially, since my time is about to expire, my position is very simply, that if anybody limits the number of women that are available as potential jurors in the State of Florida, it's the women themselves. Now, if that is bad, because they don't demonstrate an interest or a wish to serve in this capacity, then let them modify it by legislative addition or some other way. At this date, at this precise date in an eminent domain proceeding in the State of Florida, no woman is permitted to serve on the jury. We're not here on that, but I bring it up for whatever its worth. If they don't demonstrate an interest in this, let the legislature take this away and require them to. Now, if they are everything that we have been told they were, and if they are constantly on an ascending scale, then it flies under the teeth of this low qual -- quantity of women who come to the Circuit Court clerk, and say, “Look, I want to serve”. John M. Harlan II: Oh, don't blame the poor women, at least. I think most men, if they were given -- I regret to say, most men, if they were given the same voluntary registration from the (Inaudible) George R. Georgieff: To be sure. I don't think there's any question about it and I -- I myself as I have said it before, I think it's salutary. The other proposition is very simply that this -- this woman did not have a right to a woman on this jury. She simply had the right to an impartial jury, no friends, just an impartial jury. She hasn't said she didn't have one. She just said she'd rather have the other one. I think the conviction should be affirmed and the statute is unconstitutional -- rather is constitutional both on its face, and certainly as it was administered from what they had available. Thank you. Herbert B. Ehrmann: Mr. Chief Justice, I do not know whether you wish to have this information, but it's an answer to the question that you asked. Mr. Hardee who tried this case in Hillsborough County has just given me a note in which he says that in 1956, not one -- one woman has gone on any panel in all the courts of the county. Earl Warren: What county is that? Herbert B. Ehrmann: Hillsborough County. Earl Warren: Which -- well, what's the principal city in that county? Herbert B. Ehrmann: Tampa, isn't? Earl Warren: How large a county is it? Herbert B. Ehrmann: Well, about 400,000 -- I'm about to say Your Honor, about 300,000. Mr. Hardy tried the case (Inaudible) Earl Warren: Yes. About 400,000 people in that county. Hugo L. Black: Is that the county where this case was tried? Herbert B. Ehrmann: Pardon. Hugo L. Black: Is that the county where this case (Voice Overlap) -- Herbert B. Ehrmann: That's the county where the case was tried.

"Earl Warren: Number 339, New Hampshire Fire Insurance Company, Petitioner versus Scanlon, District (...TRUNCATED)

"Warren E. Burger: Thank you gentlemen, the case is submitted, we will hear arguments next in Minnea(...TRUNCATED)

"Earl Warren: Mr. Kerpelman, you may proceed.\nFrancis B. Burch: It is -- I understand Mr. Kerpelman(...TRUNCATED)

"Warren E. Burger: We'll hear arguments next in Number 544, Commissioner of Internal Revenue against(...TRUNCATED)

"John G. Roberts, Jr.: We'll next hear Case 06-531, Sole versus Wyner. Ms. Seitz.\nVirginia A. Seitz(...TRUNCATED)

"Warren E. Burger: We'll hear arguments next in 73-1908, Cort against Ash. Mr. Rome, you may proceed(...TRUNCATED)

"Warren E. Burger: At 1 o’clock, we will hear arguments in Matthews against the United States. Mrs(...TRUNCATED)