Earl Warren: The Court has now convened in special term to consider an application by the petitioners for vacation of the order of the United States Court of Appeals for the Eighth Circuit, staying the issue of its mandate and for a stay of the order of United States District Court for the Eastern District of Arkansas of June 21, 1958 in John Aaron et al., versus William G. Cooper et al. The order of the argument will be, first the petitioner, second the respondent and then the Solicitor General. And thereafter either of the parties can rebuttal of the Solicitor General if they are so advised, the respondent to speak last. Mr. Butler we will now entertain a motion to admit for the purposes of this case any the associate that you may have.
Richard C. Butler: Your Honor in connection with this case, I have Mr. John Hailey of Little Rock Arkansas, who is not yet a member of this Court. He is substituting for Mr. A. F. House. I have also as co-counsel the President of the Little Rock School Board, who is an attorney Mr. (Inaudible) and we do not know at this point Your Honor whether they will participate in argument or not, we do not anticipate that they will. We did not know the order until Your Honor just announced and if we have the rebuttal then I shall probably carry the burden of all of the argument.
Earl Warren: Should you wish -- should you wish later Mr. Butler to have either of these gentlemen admitted for the purposes of this case, we will be very glad to hear you.
Richard C. Butler: Thank you. And Your Honor one other thing I don't know that it's been made a matter of record yet and I don't believe that the Court has announced, the honorable William Fulbright, United States Senator from Arkansas has filed a motion for leave to file a brief together with the brief.
Earl Warren: We have two --
Richard C. Butler: Mr. Fulbright is present. He does not expect to participate in the argument.
Earl Warren: Yes we have two, two motions of that kind which will be taken care of in due course. Number 1, Miscellaneous John Aaron et al. petitioners, versus William G. Cooper et al, Members of the Board of Directors of the Little Rock Arkansas Independent School District, and Virgil T. Blossom, Superintendent of Schools. Mr. Marshall.
Thurgood Marshall: May it please the Court. This afternoon's extraordinary session was necessitated because of the fact that the constitutional rights of the petitioners here, the Negro plaintiffs in the cases below, their right to remain attendance at a desegregated school in Central High School in Little Rock and this was pursuant to court order. I like to emphasize at the outset the rights we are seeking protection for are not rights that are in the abstract, but rights that have been determined not necessarily by the Brown decision, but you -- the Court will remember that in this case the District Court approved the plan of desegregation. The plaintiffs below appealed to the Court of Appeals of the Eighth Circuit. It was affirmed, and court record also shows that in September of last year there were two applications for stay to Judge Davies sitting especially in the District Court for the Eastern District of Arkansas and they were both denied. So the rights we seek are rights that have been recognized by the federal courts and as such we believe that they are in a different category from a normal litigant in an injunction proceeding prior to judgment. But however the normal procedure in this case would have meant that the stay of judge Lemley's order would have been issued by Judge Lemley, but he did not. He refused and declined to stay the judgment. The Court will remember that at the end of this past session of this Court, we filed a petitioner for certiorari, seeking to have this Court review Judge Lemley's decision without first going through the Court of Appeals under the special section that provides that that shall happen, if there is some extraordinary situation which we thought existed. And this Court denied the petition for certiorari, and the case went back, rather we went back to the Court of Appeals. The Court of Appeals sat in extraordinary session and sat en banc, the entire court, and in short time decided the case, in unequivocal language that Judge Lemley's order was wrong. I emphasize the language because I will need that in my argument later. However, two days thereafter we having filed a motion for the mandate to issue forthwith, the respondent school board having filed a motion to stay the mandate, we arrived in this very extraordinary situation, I would like to call it anomaly in the law, of an order appealed from, reversed insofar as an opinion can and I have of course recognize it is judgments and not opinions to reversal orders, and then to have the stay issued. And the truth of the matter is these entire proceedings, starting with the filing of the petition of the school board way back in February asking for time, the whole purpose of these proceedings is to get time. The objective of the proceedings is that the Little Rock Schools be returned from desegregated to segregated status as of September school term. The order having been declared in the opinion as being wrongfully issued the procedural device which is normal to stay the mandate of a Court of Appeals only for the purpose of preserving the record in the Court of Appeals so it can get up here that's the only purpose for it, but in this case the stay of the issuance of the mandate decided the merits of the case directly contrary to the opinion of the case. The opinion said that the school board was not entitled to a suspension of the integration plan. The stay of the mandate said you don't have to act on this until after the school term begins. At that time the school term was to begin on September 2nd. This Court can take judicial notice that that has been postponed to September 8th, but at any rate the staying of the mandate would effectively mean that if this Court would wait until October, the school term would be in session and I believe anybody will agree that it's not good educational policy to transfer children in the middle of a school term. So we have this strange situation in the law of a procedural device of staying a mandate actually ruling on the merits in the case. That point plus this additional point and that is that the Court certainly can take judicial notice of what is going on in the legislature in Arkansas today, it's quite obvious that anytime spent in delay in this matter will bring about not less litigation but more litigation and that is why and I think we are entitled to it. We believe that this Court must not only and stay, vacate the stay of the eighth circuit, I mean the Court of Appeals for the eighth circuit, but I think that in the present posture of this litigation, in the very peculiar status that it's in, and the atmosphere that now exists in the State of Arkansas with the Governor and the legislature and everybody determined to set themselves up against the whole United States, that the only effective relief that this Court can give that will protect the rights of the petitioners here would be to stay the man -- I mean vacate the stay of issuance of the mandate. Two, to stay Judge Lemley's order, suspending the previous orders of the District Court, and as was done in the Lucy case for an entirely different reason, to order that the existing orders of Judge Miller, who originally heard the case and Judge Davies who heard it, sitting specially assigned last September, be reinstated and in full force in effect. A question immediately arises as to whether this Court has authority to do it. Well as was pointed out in many cases, the All Writs Statute for one gives authority and indeed the procedural statute on the staying of the mandate gives credence to our position, and if there is any exact authority that's needed, we take the flat position that the Lucy case says specifically that this Court has that authority and needs go no further. I don't believe as might be argued that this Court cannot and should not go into the merits of this. It tends to raise the question in my mind what do we mean by the merits. The merits in this case have already been decided by the stay and the stay is now being reviewed by this Court.
Speaker: May I ask you a question?
Thurgood Marshall: Yes sir.
Speaker: You said on September 8th was the postponed opening day, is it 8th or the 15th?
Thurgood Marshall: The September 8th is the date fixed by the Superintendent of Schools. There is a bill pending in the legislature postponing it until September 15, for the express reason as seeing what happens in Virginia, so they will know what to do in Arkansas, it has no relation to this case at all, but the September 8th date was done by the School Board, a day or so ago.
Felix Frankfurter: But if that bill passes, I take it the Board order will be subordinated to the legislative direction, is that right?
Thurgood Marshall: I should think that under the normal state procedure, the legislature could supercede the School Board, and indeed the difficulty out there is that it's all going along much in the -- I mean both are working the same way it seems to me insofar as the stay is concerned. The merits of this case, the one issue in this case, is whether or not this order or these orders or the District Court approved by the Court of Appeals can be suspended for a time.
William O. Douglas: Approved by the (Inaudible)
Thurgood Marshall: Yes sir, the first plan, no sir the original plan, the original that was approved by the Court.
Felix Frankfurter: May I ask you about -- I think you said a few minutes ago, which order of Judge Davies, the original order approving the plan proposed by the School Board was that you stated by Judge Miller.
Thurgood Marshall: By Judge Miller.
Felix Frankfurter: Did Judge -- what judgment of Judge Davies later --
Thurgood Marshall: Then --
Felix Frankfurter: -- repeated in effect that other than the order relating to the intervention of truth didn't deal with that problem?
Thurgood Marshall: No Mr. Justice Frankfurter, what happened was as soon as the governor threatened to bring out the troops, the School Board went to Judge Davies and asked for instructions and he told them move ahead with the plan. Subsequent to that time, a day or so later, I don't remember the exact date, I can get it for you though sir, they formally appeared before Judge Davies and asked for the right to postpone operation of the plan and Judge Davies ordered them “To proceed forthwith with the plan.” And the petition filed by the respondents here requested the Court to stay the whole business saying that they considered the first order of Judge Miller to be in affect an injunction and if not, then the orders of Judge Davies, but it was aimed at all three, the petition as set forth.
Felix Frankfurter: I was looking for it in the record in the Court of Appeals and never mind.
Thurgood Marshall: It is in the full record sir. What actually happened was that the original was -- as I understand it rather informal request of Judge Davies, the second was a formal one, here in (Inaudible) prompt ruling then and there. So that they were under orders to use the word of the District Court to proceed with the plan and they sought relief from --
Felix Frankfurter: But am I right in understanding the meaning of various opinions that after the original order of the District Court presided over by Judge Miller in which he canvassed the order of the School Board at length.
Thurgood Marshall: Yes sir.
Felix Frankfurter: And issued an order for its carrying out.
Thurgood Marshall: Yes sir.
Felix Frankfurter: That Judge Davies appears on the judicial scene on the basis of a petition or whatever it was called by the School Board itself asking for instructions.
Thurgood Marshall: Yes sir, and then a petition asking a postponement of relief, and the --
Felix Frankfurter: Those are separate things. They first ask for instructions in view of the imminent or actually executed order of Governor for the troops to enter, is that right?
Thurgood Marshall: Yes sir. No sir, to keep them from carrying the plan out. It had nothing -- it adjust -- that they didn't -- because of this atmosphere situation, they wanted to be relieved from putting the children in school as of that September.
Felix Frankfurter: That is exactly what I want to know. Were these two separate legal pieces of papers filed by the School Board, one for instruction and another and a separate petition by them to be allowed to postpone the direction theretofore given by the Court.
Thurgood Marshall: That's as I understand it, as I read it yes sir.
Felix Frankfurter: Alright.
Thurgood Marshall: It will -- since with permission of the Court we can get those from the record, we don't have it with us though.
Felix Frankfurter: But that's your understanding, isn't it?
Thurgood Marshall: Yes sir, I think that along that line Mr. Judge Finley should also point out that while Judge Miller's opinion was appealed to the Court of Appeals and the Court of Appeals affirmed it, that we took the position that we would carry it no further and we went back to work along with whatever could be done, and I think that --
Felix Frankfurter: That order was not sought to be brought here.
Thurgood Marshall: No sir. We let it stay right there and let it go back as such and considered ourselves bound by it.
Felix Frankfurter: You could very well bring it here, since you were in the Court of Appeals.
Thurgood Marshall: Oh no sir, no I mean the -- no we lost.
Felix Frankfurter: What?
Thurgood Marshall: The Judge Miller's opinion approving this plan, we opposed that.
Felix Frankfurter: Yes.
Thurgood Marshall: And we urged the Court of Appeals to reverse it, because it required too much time.
Felix Frankfurter: Board was satisfied so they wouldn't bring it here and you will rest it on the ground as affirmed by the District Court, as confirmed by the District Court and the District Court's decree affirmed by the Court of Appeals.
Thurgood Marshall: Yes sir with the theory that would see it worked out. With the permission of the Court, I would like to just in a measure, to go into some of the background of this case, because as we see it the factual -- the facts in this case are so clearly set out in the opinion of the Court of Appeals, that in our brief and now we don't think its necessary to go into too great detail, but there are one or two points that I think need emphasizing and that is that the record will show that with the exception of the one time that the School Board asked for affirmative relief when a white parent obtain judgment in a Chancery Court to which Governor Faubus and other people had testified and the Chancery judge ruled that the School Board should be enjoined from carrying out the plan which the District Court had approved. The School Board did on that occasion go into Judge Davies and properly Judge Davies enjoined the enforcement of that state judgment, and that was affirmed by the Court of Appeals for the Eighth Circuit. Well with the exception of that, the only relief that the School Board has asked from the District Court is postponement. They have asked for no relief in affirmative relief to help this thing along. That goes back from the two requests in September of last year and bear in mind that the petition in this case which is before you today, was asked for way back in February, it was around February that they gave up. That was when they asked for this relief and it sat there for a while until Chief Judge Gardner assigned Judge Lemley to hear it and the hearing took place in the early part of June. So, on that basis it seems to us that as the government points out in its brief and as we point out in our brief, that there was an affirmative duty on the School Board to get help in this situation, and the only objection at all was that the community was opposed to it. And the other point that they rely on in their memorandum and in their brief, is that a stay of this will help and in the District Court, in the Court of Appeals and in the response that they filed to our petition, and up to the present day, with the exception of two points, one that Governor Faubus might not be in office two-and-a-half years from now and that certain statutes of Arkansas now being litigated might be decided within two-and-a-half years, with the exception of those points as of this minute, the School Board has not given anybody any information of what they propose to do in the two-and-a-half years while these rights are being suspended. And in the question of a stay or the vacation of a stay and in cases cited in our brief we point out that the law is quite similar between the two, especially the Virginia case and the Breswick case and a few others we cite in our brief, that there's got to be a showing of one the irreparable harm on one side as against that on the other side. The record shows that these children will graduate. So far as matters now stand, if they are in segregated schools next year their rights are just gone, I mean that's the end of that. On the other hand, the statute which affirmatively gives the right of the Court, 2101 (f), of any court to stay issuance of mandates, provides that the Court may if necessary require supersedes of some form. And again this case solely, because of the peculiar situation, the states is never required to give bond and so they're not even required to give and we have a complete change of status. When this case was heard, those children in the Central High School now seven, there were nine, one graduated, Ernest Green graduated, one Minnijean Brown was expelled, leaving seven, those seven were in an integrated school system. They had been there for a year. Under Judge Lemley's order, they are taken out, and that's going to change the status, there is a physical change of status. And they are taken out as of -- it would only be effective so far as they are concerned from the opening of the school, because school had been in recess, but that complete change of status must have some extraordinary reason to be sustained. The normal procedure is to maintain the status quo, and I submit that Judge Lemley was the one that should have stayed an order, not the Court of Appeals to stay its order reversing it. And we finally, we take the flat decision that on the merits of this case we are entitled to relief, not that we need to establish that point in order to get relief, but we take the position that the opinion of the Court of Appeals was so clear, that the respondents here had nothing that they could successfully bring to this Court, and in many of the rulings of this Court, in Chambers, that if taken into consideration, the possibility of whether or not you actually have a justiciable issue recognizable by this Court. And the petitioners had no such case, and yet they can toy around with the situation, and effectively deny these rights by using procedural devices such a motion to stay.
Felix Frankfurter: Well there is a difference between a justiciable issue and eventually succeeding on it?
Thurgood Marshall: In this Court you need more than a justiciable issue. You need an issue that one, is cognizable by this Court, and is sufficient to get a sufficient number of justices to agree with it, I mean it's more than just a justiciable issue.
Felix Frankfurter: But when you say they have no justiciable issue, they have a justiciable issue.
Thurgood Marshall: Oh yes, I think there is no question about that, but we take the position that under the Lucy case it has no weight at this time before this Court.
Tom C. Clark: (Inaudible)
Thurgood Marshall: I would say Mr. Justice Clark that there is considerable authority among educators that it's not well -- it's not good educational practice to transfer students in the middle of the year. As to one or two days I imagine that would be all right, but in the mid --
Tom C. Clark: (Inaudible)
Thurgood Marshall: No sir, not at all. Well I was basing that solely on good educational practices.
Charles E. Whittaker: Mr. Marshal?
Thurgood Marshall: Yes sir.
Charles E. Whittaker: Are you (Inaudible)
Thurgood Marshall: I am urging them and --
Charles E. Whittaker: Conjunctively?
Thurgood Marshall: Conjunctively and Mr. Justice I would also say that because of the developments now going on in Arkansas, that this case should be decided on its merits and it could be done, there are precedents in this Court where it has been done.
Felix Frankfurter: That is what you've asked for in your petition here?
Thurgood Marshall: And I also -- that's true Mr. Justice Frankfurter, but I also (Inaudible) to be perfectly frank, I'm thinking about the Lustig case, where as I remember the petition for certiorari was filed during argument and in this case I think that as we said in our original petition for certiorari, which this Court can reconsider on its own motion. Our original petition for certiorari, when that was filed this Court said, you will remember that we have no doubt that the Court of Appeals will recognize the vital importance of the time element in this litigation, and that it will act upon the application for a stay or the appeal in ample time to permit arrangements to be made for the next school year. And on the basis of that language, which was a basis for denying our petition for certiorari, I think present developments in the eight -- the Court of Appeals for the Eighth Circuit and conditions as they exist in Arkansas would at least impel this Court to order that it be heard on its merits. Now we have no authority as such. We could file a petition for certiorari, but we considered it, and to be perfectly frank with the Court, we took the position that it had been done before, and that this Court could reconsider our petition filed in June, and order argument on it or could consider it right here and now. And I -- the only thing -- I believe that the way this case stands, there must be a definitive decision, and I use the two together, I mean it's bad English, but it's the best way I can do it, that there be no doubt in Arkansas that the orders of that District Court down there must be respected and cannot be suspended and cannot be interfered with by the legislature or anybody else. And less than that, I don't think we'll give these young children the protection that they need and they most certainly deserve and so in answer to your question, I would say that we requested it both and not in the alternative. And at this time we respectfully suggest that it would be even better for this Court to decide the case on the merits because the stay, which is being reviewed decided it on the merits, and so this Court in deciding the stay I don't see much chance of doing it, but I do know that technically it could be done without hitting the merits. You consider the merits, but the ruling would either be, the stay of the mandate or -- I mean the stay of the -- the vacation of the stay of the mandate or the reverse of Judge Lemley's order. But I don't believe that would give us what we thought would be enough, and it's because of the present developments out there, and I think this Court must consider the whole story.
Tom C. Clark: (Inaudible)
Thurgood Marshall: Sir?
Tom C. Clark: You have briefed it (Inaudible)
Thurgood Marshall: Brief.
Tom C. Clark: (Inaudible)
Thurgood Marshall: We did not, no sir.
Tom C. Clark: (Inaudible)
Thurgood Marshall: No sir, we would be prepared to argue and with permission to submit a brief and we could do a brief on this case in less than half a day. We are prepared to argue it now, with the right to submit a brief at a late time, because Judge Mathes' opinion of the Court of Appeals is so clear.
Earl Warren: Have you discussed with counsel on the other side the possibility or the propriety of arguing the merits here today?
Thurgood Marshall: I have not sir.
Earl Warren: May I ask this Mr. Marshall, I can see where you would be interested in having both points raised by you decided, both the stay in the Court of Appeals and also a stay of the opinion below in the District Court, but if this Court should see fit to stay the District Court of opinion, would it then be necessary to also overrule the Court of Appeals on its stay of the mandate?
Thurgood Marshall: No sir, Mr. Chief Justice, and I think further that if the Court did it that way, it would still be preserved in the traditional function of the stay of the mandate of the Court of Appeals pending petition to the Supreme Court.
Speaker: On certiorari?
Thurgood Marshall: On certiorari yes sir, but I think that as long as this case undecided on its merits, our plaintiffs, our petitioners in this case will still be under terrific pressure because of the uncertainty of it, which was recognized by this Court in its denial of original petition for cert. And if it were not for the fact that it has been done, I would have hesitated to suggest it, but I think that in several occasions this Court has ordered cases brought up the -- I mean for example under some precedents, as I understand it, was kind of late in the morning when we read them, but we understand that this Court could order the school board to file its petition within one or two days and be heard properly before school is opened or you could consider as I said the petition that we filed. May it please the Court on the -- finally I would like to wind this up because I don't think that there's too much law that is necessary because it is certainly not in conflict, we rely on the Virginia case and on down to the present time. We also have the -- some British cases in there which all are on the same theory about the power and duty of the Court to stay or to vacate and what can properly be considered by the Court. The government in its brief cites the same cases and additional cases and so I would say as said back here that when you weigh, and I for one cannot hardly talk about weighing anything against constitutional rights, I have never been able to find how to do it, but here we have negro children, and the record will show they have done nothing bad except the record will show that one did, the record will show, there's a dispute about it but it will show it and she was expelled so that's no problem, but that these children must be forced to surrender their constitutional rights is unimportant in this Court today. The point is set forth in the Court of Appeals' decision and quoting from the Strutwear Knitting case, the government's case brief which was filed this morning points out that it's really a surrender to obstructionist and mob action and that is much more destructive of democratic government than it is of some few Negroes' rights.
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: Not the Eighth Circuit's opinion.
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: Yes sir.
Charles E. Whittaker: Is the other point (Inaudible)
Thurgood Marshall: Yes sir.
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: I'm complaining about Judge Lemley's order being in effect.
Charles E. Whittaker: Which is the first (Inaudible)
Thurgood Marshall: Which is reversed by opinion and – yes sir.
Charles E. Whittaker: (Inaudible) statement, isn't that right?
Thurgood Marshall: Yes, sir. The point I – I think I get it, I thought I cleared it up with the Chief Justice's question which is, as I understood the question, my answer was that if this Court stayed Judge Lemley's order, there would not be need for touching the Court of Appeals. And I try to make it clear that what we wanted to get the original court orders in there. And Judge Lemley's order was standing in the way and certainly that would be correct. And I mean I'm making this statement on my feet but I – we have given it some thought and the reason we put both in was because originally, you were right sir it was thought among lawyers that are working on this that it was an all proposition. And --
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: And in the –
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: I think it would but I, as I said, in addition to that as things now stand I don't think either of them will be enough.
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: It's absolutely normal, but I –
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: I -- as I understand it is done every day in day – indeed the books so say.
Felix Frankfurter: Would you be good enough to tell me, what consideration relevant to determining whether the stay of the Court of Appeals should be vacated, what method of equitable jurisdiction for this Court's power over the lower court, what matters that are relevant to determining whether that stay should be vacated would not be relevant in determining whether Judge Lemley's original order should be vacated? Why do you – why does – what legal consideration is there for vacating Judge Lemley's stay disregarding the fact that he has been reviewed by the Court of Appeals and it has taken action on it and has reversed it and has then decided to grant a stay of its reversal.
Thurgood Marshall: Well, it's our position Mr. Justice Frankfurter that normally that's what's done in the state of mandate, but when in effect the decision, the issue of the case is a stay, a suspension, the merits of the case is a suspension, then when the Court of Appeals decides that the other side is not entitled to a suspension in its opinion and then suspends in its order as I said in the beginning it's an absolute anomaly.
Felix Frankfurter: That maybe a very good reason why you should argue that the stay should be vacated, but I do not understand the argument that says we don't have to bother about that, we just deal with Judge Lemley's order and vacate that?
Thurgood Marshall: Oh I understand you now Mr. Justice Frankfurter. The – I think the real problem in this case is as to whether or not the court wants to go into the merits, I think that's it.
Felix Frankfurter: The merits in which you use the term 'the merits' seem to equal, the same merits in determining on the propriety of the stay as in asking us to vacate the order which he originally refused to vacate.
Thurgood Marshall: We would make the same argument and indeed in our brief we said the argument applied to both situations.
Felix Frankfurter: And I don't understand why you offer us the suggestion that we don't have to bother about the stay, we can deal with Judge Lemley, to me that is most unreal kind of thought.
Thurgood Marshall: I think sir, of course Mr. Justice Frankfurter I cannot getaway from the fact that it's Judge Lemley order that does the damage.
Felix Frankfurter: Yes but that has been dealt with. This Court refused to deal with Judge Lemley order last June. It remitted the appealability of that to the Eighth Circuit.
Thurgood Marshall: Circuit.
Felix Frankfurter: The Eighth Circuit has dealt with it. The Eighth Circuit said it was wrong. It then vacated -- it then granted a stay in order to give opportunity under the acts of Congress to have this Court apply for a certiorari and what you are here for, here I respectfully submit is to argue that that stay should never been granted.
Thurgood Marshall: I have argued it. I am prepared to argue it Mr. Justice Frankfurter but I did not want to get into the point of upsetting what normally is procedural is -- as procedural device for appealing to this Court.
Felix Frankfurter: But if this Court as you urge has power to vacate that stay --
Thurgood Marshall: It does have that power.
Felix Frankfurter: -- then no procedural entanglements of a Court of Appeals are relevant to that power.
Thurgood Marshall: I think that's -- I am sure that's correct sir, but Mr. Justice Frankfurter I still go back to my other question --
Felix Frankfurter: All right.
Thurgood Marshall: -- that whether you consider the vacation of the stay of the Eighth Circuit or whether you consider a stay of Judge Lemley's order, the merits are so entwined that this is one of the type of cases where it -- it points to the need for it. The --
Felix Frankfurter: What you are saying is that if as a matter of authorized Congressional action, a petition for certiorari can be brought here by the school board, that such a petition would raise claims so frivolous that there was no justification for staying the reversal by the Court of Appeals?
Thurgood Marshall: We take that position and we've tried to develop it. It's just without merit, but in the posture of this case it seems to me the easiest way would be to doing both.
Felix Frankfurter: All right.
Earl Warren: Was the proprietary of this stay argued in the Court of Appeals fully?
Thurgood Marshall: No sir, as a matter of fact the application for stay and the ruling on the application were both the same day and we got our copies the next day.
Tom C. Clark: Was the argument displayed?
Thurgood Marshall: Just, they just filed a motion of stay and when it was received it was granted and --
Tom C. Clark: (Inaudible), is it not?
Thurgood Marshall: Yes sir we filed a motion that it be issued forthwith. We filed that ahead of it, we filed it the very next day after the opinion came down.
Tom C. Clark: And they filed theirs?
Thurgood Marshall: Then they filed their motion to stay and on the day it arrived in the Court of Appeals, it was decided and it is also along that line which was pointed out in the Virginian case which is cited in our brief where the court took notice of the fact that the stay was given without reasons. The stay in this case was really given on to the procedural statute which says that a stay can be granted for the purpose of petition in the Supreme Court, but nothing at all on the merits and I presume the merits weren't considered. And so that at this -- at this stage of the litigation is the first time that the merits, and I use merits merely as to the merits as to whether or not an order is entitled to be stayed, that for the first time the merits of that are being considered for the first time. And we take the position that when you balance these rights of these kids involved plus what this, this Court said in the Brown case, the public interest, meaning the public interest of the United States over against a school board's position that there are some people that don't want to let this thing go through then certainly the equities involved lean toward the protection of those constitutional rights rather than the postponement of them. And I believe that I have to recognize that is an issue in this case and is expressed by the Court of Appeals, they said there is no problem about it. They just cannot be surrender -- and they mentioned the case that I said before the Strutwear Knit case which is famous for the expression about handling bank robbers you, you don't close the banks you put the bank robbers in jail. And therefore it seems to me and I don't want to prolong the argument that we are entitled to both, at the same time it seems to me that the real justice of the case would not be required by going into either, but that either on our petition for cert originally filed or by some other procedural device that this Court be given an opportunity to pass on the merits. As I said before petitioners are perfectly willing to argue the case on the merits even though we were successful insofar as opinion of the lower court was concerned. The law I think of reading of the three briefs, our brief, the school board's brief and the government's brief, demonstrates that there is really no serious conflict of the law as to the authority of this Court to act. There is a conflict between the school board as to whether this Court should act, and on that we think that the equities on the side of school children are such that the only relief that can be granted that will be effective will be for the decision on the merits.
William J. Brennan, Jr.: Mr. Marshall.
Thurgood Marshall: Yes sir.
William J. Brennan, Jr.: I don't think I am clear about this statute which I understand postpones the school opening until September 15th.
Thurgood Marshall: That in the state legislature or Arkansas, I don't know whether it passed or not but it's there pending I understand.
William J. Brennan, Jr.: So presently --
Thurgood Marshall: September 8th.
William J. Brennan, Jr.: September 8th is --
Thurgood Marshall: September 8th is the deadline and I think if I can think ahead about when the 20 days for the mandate of the Court of Appeals, that would be up on the 7th, but the stay gave them 30 days from the date of judgment.
Tom C. Clark: (Inaudible)
Thurgood Marshall: No sir, at least I haven't received a copy of it. No sir.
Earl Warren: The time expired for constitution for rehearing?
Thurgood Marshall: Ten day I think it is.
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: On the 19th, was it, 18th, no sir, no sir it was 18th yes sir.
Charles E. Whittaker: (Inaudible)
Thurgood Marshall: Yes sir. If there are no further questions if Your Honor please we will reserve the time for not necessarily that we will use it, but if we may reserve it in case if we need.
Hugo L. Black: Is the Court of Appeals record before us?
Thurgood Marshall: The copy of the record, no sir.
Hugo L. Black: You have a record.
Thurgood Marshall: No sir, I can do this Mr. Justice Black. We have a copy of the transcript of testimony and the pleading files, we don't have that with us but we --
Felix Frankfurter: Was the decision by Judge Lemley entirely on oral testimony or was there affidavit?
Thurgood Marshall: Well no affidavits it was all testimony and exhibits, a whole basket full of newspapers.
Felix Frankfurter: How many days was the proceeding?
Thurgood Marshall: Three, practically three days, not five and the testimony was mostly from the school board people showing what a difficult problem they had from the Chief of Police, the Chairman of the School Board and the only testimony produced by the plaintiffs in this case petitioners here with two expert witnesses as to how to run a – how a school system could be run.
Felix Frankfurter: Did I understand you are required to Judge, Justice Black that -- indicate that you have a copy --
Thurgood Marshall: Of the transcript.
Felix Frankfurter: -- you and/or Mr. Butler, each have copy of the proceeding.
Thurgood Marshall: We each have a copy of the transcript and I would be very glad to deposit the transcript copy with the clerk. I would be very happy to do and will so do. The --
Hugo L. Black: Was it printed or merely typewritten?
Thurgood Marshall: It was typewritten. We were permitted to go up on the original record from the Court of Appeals, including the type transcript and the argument was based on the typed transcript or the testimony.
Felix Frankfurter: To accelerate the disposition?
Thurgood Marshall: Yes sir. They were holding a special term and they gave us that permission.
Felix Frankfurter: How many copies?
Thurgood Marshall: How many copies do we have?
Hugo L. Black: How many copies were before the Court of Appeals?
Thurgood Marshall: Two so far as I -- two so far as I know. I think that's correct isn't it, that's all that I know of sir.
Hugo L. Black: What in addition to that transcript (Inaudible) to have entire record capable of being used on a petition for certiorari?
Thurgood Marshall: Mr. Justice Black I don't think the pleadings would be necessary. They are very brief and you would no trouble, they could be run off. The exhibits consisted of a large batch of newspapers which could -- instead of being printed could be deposited with the Court, and so I don't think it would be necessary to put those in the record, and you wouldn't need -- so far as I can concede, you wouldn't need anything but the transcript and the pleadings, both of which we have and we're going to file the transcript and unless we file the pleadings too at the same time, copy of it.
Earl Warren: Mr. Butler, you may proceed.
Richard C. Butler: May it please Your Honors? To straighten out a few things that counsel for the NAACP may not have been aware of, your clerk called me several days ago, after taking with the clerk of the Eighth Circuit Court of Appeals and finding that the record of that Court had been returned to Little Rock. I located it, and mailed it here immediately and it is my information that the entire record from the Eighth Circuit Court of Appeals is here in your clerk's office. That has attached to it three such typewritten volumes that each of about this size, which shows all of the testimony that was given in before Judge Lemley in approximately three-day hearing in his Court, in June. In addition to that, there was a large packet as counsel has referred to, of various exhibits. They were not identified each separately but were introduced as a packet. They were largely newspaper items which Judge Lemley took into consideration to show the confusion and turmoil and the position that this school board was put in. I thought that might be helpful for the Court to know that. One other thing that I would like to mention in passing at the beginning, which I think counsel was somewhat confused on or uninformed on. At the time this School Board requested a temporary stay, purely temporary, before Judge Davies in September of 1957, the troops, National Guard had either been ordered out or it was known that they were to be ordered out. And at that time there was an injunction that had been ordered by the local Chancery Court, directing this School Board to do exactly opposite from what had been planned and what Judge Miller had ordered in August of 1956. Now that was the purpose behind the School Board going into Court at that time and asking merely for a temporary delay, they did that for several reasons. In the first place they were caught in an untenable position. As a matter of fact they have been there continuously since then up to this very day. They also felt that under the circumstances with troops moving in and out of the city and perhaps strife and turmoil to follow, that the wise thing to do was for the Court to have an opportunity to tell it, the School Board, what it should do under those circumstances. The School Board felt that a temporary, not the kind of delay that Judge Lemley had given over a long period of time, two-and-a-half years, but for that immediate situation, that it was necessary to get it clarified. A third reason for the School Board to go in at that particular time before Judge Davies, was that here they were ordered by two different courts, to do exactly opposite things, or at least partially opposite, and they felt on advice of counsel that it was advisable for them to show that there was no motive on their part of contempt of the federal court order. Now, I think those are the reasons behind what has been referred to as the petition for delay of September 1957.
Felix Frankfurter: Mr. Butler may I ask whether Mr. Marshall was correct, because I am – inferences I drew from Judge Devies' -- one of his judgements that there was two separate legal steps taken on behalf of the school board; one, a request for instructions and two, this motion for temporary injunction --
Richard C. Butler: Well, Mr. Justice Frankfurter as I understand it and as I recall it rather, those were combined, yes.
Felix Frankfurter: (Inaudible)
Richard C. Butler: Think it had --
Felix Frankfurter: Or combined he dealt with them, as I read his judgment, he dealt with them in a combined disposition.
Richard C. Butler: I think that --
Felix Frankfurter: I just want to be sure, maybe it's pedantic, whether those were two separate steps taken before and which he then combined into a single disposition, because he speaks separately of motion, his order of September 3rd and the Court having considered, having appeared (Inaudible), and that Court having considered the petition for instruction by sentencing. It's not a matter of (Inaudible) to this case and it's certainly not, but I just in the interest of accuracy want to know what the board did, whether it asked for instructions and also at the same time asked Judge Davies to suspend this thing or stay this thing for a temporary time.
Richard C. Butler: Your Honor so many things have happened since then. I would prefer to refer to the record itself rather than rely on my memory even though I was present.
Felix Frankfurter: The reason for my asking, it is that the record doesn't set forth these two documents and Judge Davies' own statements leave me in doubt, all right?
Earl Warren: Mr. Butler may I ask you this question, in view of the opinion of the Court of Appeals overruling Judge Lemley, is the School Board acting under any compulsion to desegregate this school?
Richard C. Butler: No sir not at the moment, if I understand Your Honor's question. They are not acting under any other compulsion. Now there are acts one and that's one other thing that I wanted to mention, and that is there has been some statement of the delay of the School Board in opening the high schools in Little Rock or all of the schools, as a matter of fact. The School Board on its own motion let us say, postponed it until September the 8th. There is a statute which will be passed, I think it has already been passed, if not it will be passed today, postponing the opening of school until September the 15th, that is my information. Now of course the School Board would have to obey the statute in regard to opening or closing school, because --
William O. Douglas: What is the time for registration?
Richard C. Butler: Sir?
William O. Douglas: What is the time for registration?
Richard C. Butler: Time for registration originally is about nine. I have the President of the School Board here with me, he is the counsel and -- they have already had registration I'm informed Mr. Justice --
William O. Douglas: And this bill for opening the -- delaying the opening of the school until the 15th, there is nothing to do with registration?
Richard C. Butler: I don't think it affects registration, no sir.
William O. Douglas: And these petitioners are registered?
Richard C. Butler: These petitioners are registered under the order of Judge Lemley's delay, under his order, yes.
Harold Burton: Is there (Inaudible) some other schools?
Richard C. Butler: Yes sir that is my information, that they are already registered in the school that they originally were in.
Speaker: (Inaudible)
Richard C. Butler: Perhaps, yes sir.
Speaker: Is there a doubt about it?
Richard C. Butler: Yes sir there is some doubt about it.
Speaker: (Inaudible) by virtue of the postponement of Judge Lemley's second order, of Judge Lemley's order, that's the only intervening circumstance.
Richard C. Butler: Yes that was the intervening circumstance and the stay ordered by the Eighth Circuit, yes sir.
Felix Frankfurter: They are -- their names are physical, physically on the appropriate register of the class to which they were assigned –
Richard C. Butler: Well, I must suggest –
Felix Frankfurter: I am not talking about legal consequence. I am not talking about legal consequence but to carry out Justice Harlan's question they, they were in that school for a year. They must have been registered when they were admitted in, was it in '57?
Richard C. Butler: Oh yes, they oh yes they were registered.
Felix Frankfurter: They were physically on the books.
Richard C. Butler: Oh yes, yes sir. Yes and in September of '57 perhaps I misunderstood your question. In September of '57 they were registered in Central High School and remained there all during the school year both on registration and physical being there.
Felix Frankfurter: And but for Judge Lemley's order they would have gone back whenever the school opened to their appropriate classes?
Richard C. Butler: Legally that is correct yes, yes.
Felix Frankfurter: That's what I am talking about.
Earl Warren: Mr. Butler may I ask one other question, has the school board determined what it will do toward desegregation or toward leaving the matter as it was last year in the event this Court declines to grant this stay?
Richard C. Butler: No sir, it has not decided because it's almost compelled to see what statutes are passed by the general assembly now in session and various other things which it has no way of determining. And this school, school board no doubt will have to meet those situations as they arise, as they have had to do all the past year.
Felix Frankfurter: But the plan which was put before Judge Miller that which he approved and which the Court of Appeals confirmed has never been revoked by the school board?
Richard C. Butler: No sir it has not, it has not been revoked, no sir.
Earl Warren: Well as to these specific children, have they been assigned to any school?
Richard C. Butler: It is my affirmation Mr. Chief Justice that they have now --
Earl Warren: They have not been.
Richard C. Butler: They have not -- yes sir they have now been assigned to the all Negro school, the new high school there of Horace Mann.
Earl Warren: Well isn't that, isn't that action towards segregating them again?
Richard C. Butler: Oh! Yes sir it is. It is, that and that was done, that was done under the order of Judge Lemley's decision.
Earl Warren: Yes. Well then my point is this. If this Court does not stay the order of the Court of Appeals withholding its mandate then the school board will proceed to segregate these pupils who are plaintiffs in this case.
Richard C. Butler: Yes sir.
Earl Warren: Yes.
Tom C. Clark: Did they transferred them --
Richard C. Butler: Well now that the school board President informed me and of course he is correct hat that we don't know that they have actually been registered. As a matter of fact that the point I was making a moment ago is that registration generally of most of the students in Little Rock has been accomplished within the last few days. Now actually these students that are in question have been up here, they have been traveling around, I doubt that since even the school superintendent has been gone for the last couple of days whether he knows that these -- that all of these particular students have actually registered.
William J. Brennan, Jr.: What does registration involve?
Richard C. Butler: Registration simply involves the request by the student himself under general, under the general rules of the school board to indicate that he is planning to attend that particular school --
William J. Brennan, Jr.: Well where does he register --
Richard C. Butler: -- that day.
William J. Brennan, Jr.: Does he go to the school itself --
Richard C. Butler: At the school yes sir.
William J. Brennan, Jr.: Where he has been assigned?
Richard C. Butler: Each school yes sir.
Felix Frankfurter: That applies both to segregated and the Central High school --
Richard C. Butler: Oh! Yes all students must register, yes sir. All students and that has been the customary practice for years.
William O. Douglas: Beginning of each school year they must register.
Richard C. Butler: Yes sir, oh yes they are registered so that the school authorities will know who is going to be where and how many they can expect.
William J. Brennan, Jr.: What I don't quite get is this, must register that is register up here at the very school to which the pupil has been assigned?
Richard C. Butler: Yes sir, that's my understanding.
William J. Brennan, Jr.: -- these children have ever appeared at the all Negro high school?
Richard C. Butler: I do not know whether they have appeared there or anywhere else as a matter of fact. The point I was making a moment ago in answered one of other justice's question was that registration generally in Little Rock has already been accomplished and just within the past few days.
Earl Warren: But my only point was this Mr. Butler if this Court does not grant a stay to order of the Court of Appeals is it the purpose of the school board to assign these youngsters involved in this case to an all-Negro school?
Richard C. Butler: Yes sir.
Earl Warren: That's all.
Tom C. Clark: Do you have a system of transfer in the middle of --?
Richard C. Butler: Yes sir we do. Many transfers are made from time to time. Each transfer is taken up on its own merits and ordinarily if the family moves from one geographical location to another or for various other reasons they are transferred during the school year that is not an uncustomary proceeding.
Earl Warren: But whites to white schools and Negroes to Negro schools?
Richard C. Butler: Well no --
Earl Warren: Have you ever transferred -- do they ever transfer any Negroes in Little Rock to a White school or Whites to a Negro school by reason of moving a residence?
Richard C. Butler: Mr. Chief Justice in Little Rock until this past year it was, and for the past 70 years ever since there has been a public school system in Little Rock, it has been segregated in the public school systems there. So there has never theretofore been any transfer from Negro schools to White school or vice versa. The transfer of pupils from one school to another whether it's White or Negro is a process that goes on every school year, not just at the beginning of the year, that's when they all register. And ordinarily those students stay in that particular school, the balance of that year, but there are many exceptions to that and there are transfers during the course of the year.
Felix Frankfurter: And am I right in understanding that under the plan, approved, submitted by the board and the approved by Judge Miller a state by stage carrying out the desegregation scheme that Central High School is the only school in Little Rock in which the plan became operative.
Richard C. Butler: As a practical matter that was the only one, yes sir.
Felix Frankfurter: I don't know what that means.
Richard C. Butler: There were three -- there were three high schools, Central High School, Horace Mann High School and Hall High School. Horace Mann High School is a new school so is Hall High School. Central high school has been in its present physical plan for some 25 to 30 years. The only applicants that were made for any racial mixing or integration to the best of my knowledge –
Felix Frankfurter: Was at Central High School –
Richard C. Butler: -- was at Central High School and some 17 first started out becoming eligible for that. There were 70 some odd applied. For various reasons they withdrew either voluntarily or otherwise and it finally came down to nine and ended up the school year with seven.
Tom C. Clark: Mr. Butler if you were to assume that the court had not issued a stay and that the (Inaudible) argument by an order came down approving a plan and requiring integration, would it be feasible or practical within the practice of the school board in keeping with the order of the court if such an order was entered and then transfer the students if is so ordered from whatever school they were in to an integrated school or would you have to wait a year as Mr. Justice --
Richard C. Butler: Oh! No, no sir you wouldn't have to wait a year, they -- The point that I am making and I think Mr. Justice Clark what you are asking is the registration at the beginning of school is not necessarily held in (Inaudible) during the entire school year. Now they try to just for the sake of continuity to keep as many children as possible in a particular school, but there are various circumstances as I understand that come up throughout the year whereby pupils are permitted to transfer from one school to another. I trust I have answered your question --
Tom C. Clark: We heard the case on the merits rather than passing on the stays, they would just say the court didn't pass on the stay at all, just referred the case on the merits in a later date and the judgment was against you, then there would be no reason that you knew of why the School Board could not at that time transfer the students from whatever school they were in to a integrated school.
Richard C. Butler: No sir, I know of no reason why that couldn't be done.
Tom C. Clark: Wouldn't you, if it's a fair question, when do you contemplate filing petition here? You have until the 20th I believe.
Richard C. Butler: Your Honor we were working on it when we had to drop that and file a response to the motion for vacating the stay, and we have simply not had time to pursue that. It was our intention to proceed with that as promptly as we could. We announced that we wanted to do it within a ten-day period if that were possible.
Tom C. Clark: I take it you're not going to file a petition for rehearing in the Court of Appeals?
Richard C. Butler: No sir. That's one other point I wanted to emphasize and clear up. After the decision of the Eighth Circuit Court of Appeals, the petitioners then filed for immediately sending down the mandate, either in the next mail or certainly by the next day. We were preparing at the same time the other side was to present our motion for a stay. I think it's correct that the petitioner's motion arrived there one day, ours arrived the next, so the issue there was traversed. In other words each position was opposed to the other, them asking for immediate sending down of the mandate and our asking for the stay for a customary period of time and it is my information that the entire court, the Eighth Circuit Court of Appeals granted that stay, that it was not done just by the Chief Judge or any justice there of. It's my information that every justice agreed to the stay after the respective motions had been filed and that -- and the answer was the decision of the Court was announced the day after -- the later of the two motions was filed.
William J. Brennan, Jr.: Mr. Butler I think you told us, the record is here, do I understand that all now required to perfect your application for certiorari is the filing of your petition?
Richard C. Butler: Yes sir and filing a brief with it depending largely of course upon whether this Court weights rules of printing records. There has been no printed record in this. Actually it has moved so fast and courts have ordered us to do things both sides so quickly that there has been no time to print much of the thing that's customary to print.
Earl Warren: If we permit it to be typewritten instead or printed, could you and would you accelerate your petition for certiorari?
Richard C. Butler: We would do it as quickly as we could which we had planned to do anyway Mr. Chief Justice. We have no disposition to delay legal proceedings, but we hope that we will be given time in that event as we should, to do it in an orderly fashion and get all of the things before -- all of the points before this Court that should be presented.
Earl Warren: Yes.
Richard C. Butler: It has been my limited experience, that it is not an easy matter to present a petition for writ of certiorari. There are certain things that must be done and we are not as familiar with that as lawyers who practice here in Washington. We would deplore being rushed into it to the extent of not being -- having time adequately to prepare. Now it seems that all the lawyers in this case are -- pretty well agreed and we won't dwell on that part of it, that this Court probably has the power to grant petitioners' motion. Many instances can be cited both ways, not only of this Court but all appellate courts, of setting aside or upholding. The customary thing of course is for the Court that heard the case to exercise its judicial discretion in granting the stay or not. Now it would be in our opinion an unusual procedure, although not unprecedented for this Court to vacate the stay of the Circuit Court of Appeals. I don't think it would serve any useful purpose to dwell on the various cases in the various circuits as well as in this Court. I think we're all in accord that there is power in this Court to do either one. Now unquestionably though the burden is on the petitioners that is at least my studied judgment. I think the very nature of the legal proceedings dictate that when a stay is granted by a Court the burden is on the side seeking to set that aside, and we feel that they have not met any such burden up to this point. As we see it each such case presents itself to every court, whether it's this Court or any other appellate court, with this rather simple but profound question, and that is should we as a court on motion pending on appeal or certiorari, summarily substitute our opinion for that of the lower court which heard the case and granted the stay. With this Court sitting en banc, it may prove difficult for all the parties to eliminate arguing Judge Lemley's decision as against the point that is before this Court right now, the particular issue of setting aside the stay of the Eighth Circuit. And I agree with counsel that he's just spoken that such argument necessarily overlaps one into the other. It's difficult to distinguish between the two. However, we feel that even though such arguments become intertwined, that really the case, the issue before this Court as of now, insofar as these pleadings are concerned, is whether or not this Court is going to set aside the stay of the Eighth Circuit. Now I set forth in our response, the trial court after hearing evidence for three days found that under the conditions now existing in Little Rock and these findings, not a single finding of Judge Lemley was disturbed or questioned by the Circuit Court of Appeals. As a matter of fact the Circuit Court of Appeals found everyone of those itself and so set them out in the opinion. But Judge Lemley found and also the Eighth Circuit Court of Appeals found that it is impossible for the School Board of Little Rock to operate a school program for the 2,000 students at Central High School on an integrated basis at this time, and that unless the plan of desegregation is postponed for a reasonable length of time, that irreparable harm will be inflicted upon the students of both Negro and white race. Now the broad issue of course in this case is simply this. Can a court of equity postpone the enforcement of the plaintiffs' constitutional rights if the immediate enforcement thereof will deprive others, many others as a matter of fact, of their constitutional rights to an education in a free public school? The Little Rock Public School Board is composed of outstanding citizens of our community. There are two medical doctors on the Board. There is a civil engineer, graduate civil engineer, one of the large manufacturing concerns in our state. There is a certified public accountant. There is a leading businessman of one of the large backing companies there, an official of that company, and the present President of the Little Rock School Board is a wise and experienced lawyer who has practiced there many years. Those men are unpaid. They are public servants. They have tried to do the best they could under as trying circumstances as any public servants have ever been faced with. Now when other boards of education were refusing to recognize the basic change that the Supreme Court had made in the law in the Brown decision, this Board was studying and formulating ways and means of complying. They knew it was not an easy task, but they were willing to do their best. These are men of high standing as I have said in their community. From bitter experience, however, they discovered that they could not operate a public school system under the existing climate in Little Rock as of this time. Now they didn't anticipate all of the difficulty that has arisen and I dare say that many courts did not anticipate all of that difficulty. But from bitter experience they discovered after some five or six months of operation, after troops had been in and out and still there, under different commanders that they could operate the school only with troops and yet they could not give an education with troops. They came to that, studied and serious conclusion on or about the later part of or about the 20th of February after they have been operating a full completely semester with troops in the halls and around the school building.
Felix Frankfurter: Am I right in understanding that it wasn't the school board that asked the troops?
Richard C. Butler: The school board did not ask for troops, no sir. This was not an impulsive search for relief from the courts that these men made, but after they had tried it for a long time. Now many people in Little Rock and through out the line no doubt are sympathetic and try to be understanding of the school board's problem, but no one can put themselves in the place of this school board unless they have been there. We find that even the press in many places, not just in the South land, has been understanding and as an example of that I would like to read a very brief editorial from the New York paper as late as August 20th. It says among many trials of the people of Little Rock certainly not the least of them has been the way in the which the course of events has been suddenly reversed and reversed again by the various agencies of government and now they are to suffer more of it. First there was the ruling of the Supreme Court that upset the old order in the school. To this change the local authorities in Little Rock and most of its people tried to adjust, but then all of a sudden they were confronted with troops sent by their governor to block integration and troops sent by their President to enforce integration. Next there was a ruling by a federal district judge denying a stay and ordering integration. This was followed by an order from another federal judge in the same district granting the people at times respite by postponing integration. This week the federal circuit judge has once more reversed direction. There is talk of another appeal to the Supreme Court of a special session of the legislature, all of which of course has come about in the last few days. This surely is a terrible buffeting of one people by the laws and powers of office. Each of these office holders may have had the right to act as he did. But just the same the result has been that the people of Little Rock did not know from one day unto the next, under what order of society they must live, but found all change by which holder of what office wielded the moments power. We cannot know what will happen next month in the schools of Little Rock. It maybe too late now for the whole that somehow time and forbearance will be allowed to heal passions. And yet it must be hope for any man can see what will happen if the issue of integration comes to devour the issue of education. What kind of education can we give any children, White or Negro, in classrooms inflamed by animosities or if once more it comes to that echoing the triumph of soldiers. That ends the editorial.
William O. Douglas: What paper was it?
Richard C. Butler: Sir?
William O. Douglas: What paper was it?
Richard C. Butler: That is the Wall Street Journal of August 20, 1958. Now the Supreme Court said that local courts should be the ones to decide the various questions which would arise, it may seem unnecessary and perhaps unduly academic to read to this Court, maybe even seem presumptuous to read to this Court what it has said, but I have gotten something out of the opinion every time I have read it and reread it, and reread it. And apparently experienced judges give different ideas about what this Court means. And perhaps even at the expense of reputation it is advisable to read portions of that opinion in the light of the events which have taken place in Little Rock. This case -- this Court said in the Brown case that because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. These presentations were informative and helpful and in its consideration of the complexities arising from the transition to a system public -- of public education free of racial discrimination, full implementation of these constitutional principles may require solution of varied local school problems, because of their proximity to local conditions and the need for further hearings the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it's appropriate to remand those cases to those courts. In fashioning and effectuating the decrees the courts will be guided by equitable principles. Traditionally equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. By giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start towards the compliance with our May 17th 1954 ruling. Once such a start has been made the courts may find that additional time is necessary to carry out the ruling in an effective manner. When we look at this entire problem, we recognize that two-and-a-half years, historically is a very short time or perhaps any other period of time and I know of no better way at least it was most impressive on Judge Lemley. it was impressive on other people when Mr. Blossom, the School Board Superintendent, who has studied this thing and has been on his heart as well as the hearts of the school board members more than anyone else and has been his major responsibility in asking him in the lower court what he found, and this is in the record that is now before Your Honors. He was asked the question whether he had read the Supreme Court decision, these men were earnestly trying to carry out the orders of the Federal Court as they saw it. But their function was also to maintain a public education system in Little Rock, and I will say I think in all fairness to those men that that probably was their primary object and consideration and duty. But Mr. Blossom testified in studying this problem just what did it mean, what did deliberate speed mean in one locality as against another, what did it mean in this particular serious problem that has confronted not just Little Rock but the entire nation and here in substance was his testimony that portion of it verbatim. We ask him whether he had given consideration to this time element when they finally filed the petition before Judge Lemley for a two-and-a-half year delay and he said very definitely, we have given great consideration to it in this plan. We are dealing with something that is very important and very dear to the hearts of many people on both sides of it. We took into account the effect as far as time and other cultural pattern changes in our society were concerned. We try to look into history to see what it would teach us. We tried to analyze the situation of the Negro and his march to civil rights in this community. Then he was asked the question as whether he considered the term delivery speeds. His answer was, “Yes sir, very material.” The Negro race as a race came to this country in 1619. They came in chains as slaves. They stayed in that and as far as I could study it, you would class that as the first period in the history of the United States and they stayed from 1619 until 1865, nearly two-and-three-quarter century and that is one period in their march for civil rights and their development. The second period came in 1865 and they stayed in this second period until 1896, the decision of Plessy versus Ferguson. That is 31 years. Now in this period they had their freedom, they did not have the economic or political or any other type of positions to any extent. Then coming out of that period into what I could call the third one from 1896 to 1954 and I would just label that separate but equal. Now they stayed in that 58 years and then you look at the problem and the complexities in this thing and recognize that many separate but equally -- is in no way a reality. In many places in the South land, but in Little Rock Arkansas they were. “I am not arguing the separate but equal philosophy,” Mr. Blossom continued, “I am trying to state that history tells us in terms of two-and-a-half year request for delay that this is the third period and we account for the fact that there are three periods, one taking nearly three centuries, another 31 years and another 58 years and recognizing that there is one group that says we are going to have it all now and another that says we are never going to have it, you put the horns of the dilemma in the proper perspective with the school board right in the middle and it is a difficult thing. And then you come to May 17 1954 and we look at it today that was June 4, '58 and you compare that period of time as compared to either of the three previous periods I have outlined and you wonder how fast in terms of history, can anyone expect a change in cultural pattern.” Following that Mr. Blossom went into some detail and as did the President of the School board as to what could be done in two-and-a-half years and that is in the record and I respectfully disagree with the implication left by opposing counsel that nothing was to be done.
Felix Frankfurter: Would you mind, would you mind either reading if isn't too long, that well expressed --
Richard C. Butler: It --
Felix Frankfurter: Or would you summarize what Mr. Blossom testified as to why two-and-a-half and not one-and-a-half and now three-and-a-half were selected.
Richard C. Butler: I'd like to start, yes.
Felix Frankfurter: I know lines must be drawn in this world, but I just wonder what his testimony was?
Richard C. Butler: Yes his testimony in effect was this and I'd be glad to read it to you on Your Honor, but it is rather interspersed as well as Mr. Upton's in among a whole lot of other testimony. It basically is simply this Your Honor. In the first place they felt that starting at mid-semester after organization was completed during the first semester was wise. That would put it at the middle of a term. Their reasoning simply was this, that your PTA organizations perhaps other organizations were and the school itself was then in a better organized position than it was after a summer recess of three months. The other thing was simply this and we are firmly convinced of this situation. In Little Rock as well as throughout the south and in other places where problem has arisen, the great mass of people are not law violators as such. They are not people who form mobs, they are not people who defy the law, but we submit in this school board determined that they were entitled to know what the law was and as long as editorialist, popular editorialist in our community were saying that this was not the law of the land and if there were ways to get around it and one court was saying one thing and another court was saying another, and there were laws on the state statute books of Arkansas as well as other states throughout the south, diametrically opposed as some people argued, some of them could be reconciled, some of them could not with the decision in the Brown case, but it left the people of our community as well as the people of many communities in actual doubt as to what the law was and on question to the people in our part of the country, wanted to believe that this thing could take a long time or be circumvented entirely. They wanted to believe that, but it is our firm opinion and it is the opinion of this school board and that was the main consideration given when they finally decided on a two-and-a-half year request that in that period of time perhaps as we pointed in our response a national policy could definitely be established, that laws could be tested so that the people would know, the people who want to obey the final word. Now that was the reason and very candidly Mr. Blossom ended up by testifying and I am sure this was the thinking of every member of the school board as well that we don't know that two-and-a-half years will do it. You may be able to do it one year, you might do it in a year-and-a-half, maybe two-and-a-half is not enough. He doesn't know but the courts have said that the first consideration of this problem shall be dealt with by the school boards, it is their primary function, as a matter of fact this Court I believe have said it just that way, if not certainly all the appellate courts.
Felix Frankfurter: Mr. Butler why aren't the two decisions of this Court, which, the first one based on the constitutional requirement that this Court unanimously was held compelled the Constitution and the second opinion recognizing that this was a change of what had been supposedly the permission of the Constitution, recognizing that and the kind of light that have been built under the contrary conception said as equities is always say that you must make appropriate accommodation for the specific circumstances of the situation instead of having a procrustean bed where everybody makes the cut off or stretch to fit the length of the bed, and who is better to decide that than the local United States judges. Why isn't that a national policy, and why hasn't that national policy, why wasn't that enforced in Little Rock, in the Little Rock district when the school board submitted a plan after mature consideration, after listing public support on its behalf submitted it to the court where it was contested and the court said, yes this satisfies the policy laid down the second in the Brown and Allen decisions. Why isn't that deference to local situation in the enforcement of what was laid down a national policy, national policy doesn't mean the same thing must take place in Little Rock, Arkansas as in Fitchburg, Massachusetts, something yes, but not for this kind of thing. And there was a national policy and the federal courts recognized it. It was sustained by the District Court over the opposition of the parents or whoever acted on behalf of these children went before there Court of Appeals. And the Court of Appeals said, yes this is fair carrying out of that which the Supreme Court laid down. I do not understand what is meant by saying lets wait till we get a national policy, if that isn't a national policy.
Richard C. Butler: Well Your Honor in answer to that I simply say this, that it was certainly not anticipated at the time that plan was formulated that the governor of the State of Arkansas would call our troops to keep integration in the schools from taking place, nor was it --
Felix Frankfurter: The governor is calling out troops, isn't the same thing as the uncertainty of what the law is.
Richard C. Butler: Well --
Felix Frankfurter: That has nothing to do with the uncertainty of the law.
Richard C. Butler: Your Honor this --
Felix Frankfurter: The action of the governor under what he thought was his refusal to abide by the law.
Richard C. Butler: Well this School Board is simply faced with realities, and that is the possession that it's in. It did not anticipate the extreme difficulties that it went into. It knew that it did not have an easy task in this thing. All school boards I think realize that. They did not anticipate the events which actually did take place, neither did they anticipate the things which are right today destroying the public schools system there.
Felix Frankfurter: Mr. Butler I did not mean to imply, I hope did not carry any such meaning of what is said. I did not remotely mean to imply the criticism of the school board.
Richard C. Butler: Thank you.
Earl Warren: Mr. Butler as you were relating the reasons why the School Board continued this for two-and-a-half years, the question crossed my mind, suppose every other school district in the south would do the same thing and say we will carry on segregation for a number of years until the law is clarified, how would it ever be clarified?
Richard C. Butler: Well Your Honor, I think the only answer to that is that many districts do not have that problem, even in some parts of the south. In our state university, Negro students have been there for some years, and there has been no great problem about it. Our other districts where the problems are greater as this Court pointed out that you have a variety of local problems. Now in Arkansas there are some -- a number of districts, as well as in Texas and other states, where the people of that community have done it largely for economic reasons, various other reasons, but in any event it has worked successfully. And I simply say again that this School Board in Little Rock, Arkansas was not faced with theories, it was faced with actualities which are undermining and which are going to destroy the public school system in Little Rock and when its destroyed it will be destroyed not just for white students, it will be destroyed all the way up and down the line unless they're given an opportunity to work this thing out in a climate of calm rather than in a climate of hysteria. Now we urgently feel that way and the School Board feels that way about it.
Earl Warren: My recollection is that in one of those opinions, either the Brown or the Alan case we did say that mere public opposition to the policy and to the program would not be a cause either for denying integration or for extending it?
Richard C. Butler: We understand that and of course Your Honor is correct, if the word I think non acceptance or some such or opposition. Now, the courts have certainly held and we find no fault with the basic statement, the bald statement, the just mental reservations about this, or mental opposition to it, but when a school board is confronted with facts which of themselves will force it, will force the destruction of the public school system, then this Board feels and Judge Lamley felt that time should be given for cooler heads, calmer atmosphere to come to the front in order to work out these problems or at least to give an atmosphere that is conducive to working those out.
Earl Warren: Well Mr. Butler I think there is no member of this Court who fails to recognize the very great problem which your school board has, but can we defer a program of this kind merely because there are those elements in the community that will commit violence to prevent it from going into effect?
Richard C. Butler: Mr. Chief Justice I think so, but not directed to the people who form mobs, not directed to the people who are law deifiers, we're not standing up here taking -- trying to argue for their side of it.
Earl Warren: I know you're not.
Richard C. Butler: We are arguing for the great mass of people throughout the south who I say again and will say again and again, are not law deifiers. They want to follow the law but they as of this moment without certain state statutes having been tested in court do not know just exactly what the law is in a particular given circumstance.
Earl Warren: But is that the state law that concerns you or is it the threat and violence that concerns you?
Richard C. Butler: Both, I would say --
Earl Warren: So as long as the state laws conflict with the federal laws you would think that there should not be any integration?
Richard C. Butler: No sir. I don't feel that way about it.
Earl Warren: How much time would you --
Richard C. Butler: But there are certain laws such as pupil assignment laws and laws of that kind and incidentally the pupil assignment law has just been recently upheld by a three-judge federal court in Alabama, I believe it was in May of this year, its reported in the June Race Relations Report, and upheld the constitutionality of that.
Earl Warren: That isn't the question here, is it?
Richard C. Butler: Yes sir I think -- well not specifically here, I think it's intertwined in this entire problem.
Earl Warren: It's in the same area, but it's a no sense controlling in this case is it?
Richard C. Butler: The pupil assignment --
Earl Warren: The assignment?
Richard C. Butler: Sir?
Earl Warren: The pupil assignment.
Richard C. Butler: It is not -- that statute as such is not before this Court at that time no sir, the point I'm making is Mr. Chief Justice that laws such as that, I use that as an illustration, laws such as that are being advanced. Some of them have been on the books for many years. Some of them have -- many of them have not been determined whether their constitutional or not, and the great mass of people are in our opinion entitled to know and have those laws tested in court. Now --
Hugo L. Black: Suppose the pupil assignment law contains one position that pupils can be assigned and must be assigned on account of their race or color? Would you say that has been decided?
Richard C. Butler: No sir I would say that has been decided Mr. Justice Black and Arkansas statute does not contain any such provision, as a matter of fact it contains directly the contrary, but it does set out some other things which school boards generally have taken into consideration throughout the year, such as psychological adjustment, various other things, health and many things. Now, some of the school assignment law, pupil assignment laws, I understand have been held by federal courts to be unconstitutional on their face. The most recent one with which I am familiar with, and to which I refer, the three-judge federal court in Alabama; held at that, that state law was not unconstitutional on its face and they upheld it. I don't know just where it is now but it's -- it was upheld by a three-judge federal court. Excuse me sir.
Felix Frankfurter: Did you say to Justice Black a minute ago that the Arkansas law is just the opposite of the --
Richard C. Butler: The Arkansas -- yes sir the Arkansas --
Felix Frankfurter: You must pass things (Inaudible)
Richard C. Butler: Yes sir. It was passed in 1957, yes sir.
Felix Frankfurter: And you say that, that has --
Richard C. Butler: 1955 or 1957,
Felix Frankfurter: That has explicitly a prohibition against pupil assignment on the basis of race?
Richard C. Butler: On the basis of race, yes sir, but it sets out some 12 or 15 other things that school boards may consider. Now admittedly of course courts cannot make decision based on popularity polls, but the fact is and I think it's interesting to note in passing that a respected poll taken very recently across this entire nation shows, and it was not taken just in the south, it was throughout the entire United States, that 54% of the people favored Judge Lemley's decision and felt that it was the only way to solve this particular problem.
Felix Frankfurter: I sometimes wonder why we have elections and not turn it all over to polls. [Laughter]
Richard C. Butler: Now to show the seriousness of this problem Your Honors, Your Chief Judge, Judge Gardner wrote this short dissent, and to me it is so appropriate, so realistic, so proper under the decision, the words themselves of the Brown decision that I'd like to read at least parts of it. It's the entire dissent is limited to one page, but he says it is conceded that the school authorities have acted in good faith, both in formulating a plan or integrating and in attempting to implement the plan. Their efforts in this regard were met with unprecedented and unforeseen opposition and resistance as set out and enumerated in the majority opinion. This opposition included acts of violence to such an unprecedented extent that the armed forces of the United States were stationed in about the school building. The events pertinent to the attempts of the school authorities during the school year to implement its plan for integration are set forth in the majority opinion. The normal conduct of the school was continuously disrupted and the state of mind both within and without the school was to a greater or a lesser extent in a state of hysteria. Under such circumstances and conditions set out in Judge Lemley's opinion, the school authorities made application for an extension of time so as to permit a cooling off or breathing space, so that both pupils, parents, teachers and the public might to some extent become reconciled to the inevitable necessity for public school integration. Having in mind that the school officials and the teaching staff acted in good faith and if the school officials presented their petition for an extension of time in good faith it was the duty of this Court and he quotes, “To consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principle” and he cites the Brown case of course. In this situation the action of Judge Lemley in extending the time as requested by the school official was the exercise of his judicial discretion. The background is well set forth in Judge Lemley's opinion. For centuries there had been no intermittent social relations between white and colored races in the section referred to as the South. There had been no integration in the schools and that practice had the sanction and a decision of the Supreme Court of the United States as constitutionally legal. It had become a way of life in that section of the country and it is not strange that this long established, cherished practice could not suddenly be changed without resistance. Such changes, if successful, are usually accomplished by evolution rather than revolution and time, patience, forbearance are important elements in effecting all radical changes. The action of Judge Lemley was based on realities and on conditions rather than theories. The exercise of his discretion should not, I think, be set aside as it seems to me it was not an abuse of discretion, but rather a discretion wisely exercised under all the conditions. We should not substitute our judgment for that of the trial court. That ends Judge Gardner's decision. All we are asking at this moment is for this Court to continue in effect the stay of the Circuit Court until our petition for a writ of certiorari can be filed and considered and the matter heard in an orderly fashion.
William J. Brennan, Jr.: I'm just wondering Mr. Butler whether your argument in that event would be any different from the one you've just given us?
Richard C. Butler: It would probably be somewhat longer Your Honor but that would be the basis of it.
William J. Brennan, Jr.: Same vein I take it?
Richard C. Butler: I think in the short space that Judge Gardner took I think he said it about as concisely as it could be said. I think there are other things to be said in connection with it. He practiced his dissent, that under the time element he could not go into in great detail, but that it was a hurried opinion but his firm opinion. But we are here now for that purpose and as I understand it for that purpose alone, to ask that the normal procedure be followed in this important case and that this Court not disturb the stay of the Eighth Circuit under the present circumstances.
Charles E. Whittaker: Mr. Butler?
Richard C. Butler: Yes sir.
Charles E. Whittaker: Under your view as to that aspect of the motion asking a stay on Judge Lemley's (Inaudible)
Richard C. Butler: Well Your Honor of course our position is simply this, that Judge Lemley's decision although found to be in disagreement by the Eighth Circuit Court of Appeals, nevertheless both obviously he and then the Eighth Circuit Court of Appeals felt that it should be stayed, which is an indication to us Your Honor and to many other judges and lawyers throughout this land, that the Eighth Circuit Court of Appeals had some question in its mind. If it was absolutely certain that it had been correct, the chances are it would not have issued the stay. It was in his -- it was within its power to deny a stay. They were traversed and they had it before them and they had heard the whole case.
Charles E. Whittaker: (Inaudible)
Richard C. Butler: Yes sir, it is and it is the customary procedure if Your Honor please for this Court to recognize the judicial discretion of that Court in granting stays and ordinarily I would say does not upset them.
Charles E. Whittaker: Unless you understand it?
Richard C. Butler: Yes sir.
Charles E. Whittaker: Yes, now (Inaudible) namely to stay the effect of Judge Lemley's order meanwhile so that the normal process is (Inaudible), you see?
Richard C. Butler: Yes sir and I --
Charles E. Whittaker: (Inaudible)
Richard C. Butler: Well I think, Your Honor that is so wrapped up legally and practically that the practical effect of that, if I understand Your Honor's question would be that it would serve no useful purpose for what we are ultimately seeking and that is to give the people of that section an opportunity to think in a period of calm rather than in a period of hysteria. Now if the Court puts it back in the status quo that it was before Judge Lemley it would serve this School Board as we see it no usual purpose. There would be troops back in Little Rock to maintain law and order and –
Charles E. Whittaker: Why do you say that?
Richard C. Butler: Sir?
Charles E. Whittaker: I said why do you think that?
Richard C. Butler: Well perhaps should not because that is my personal opinion. I'm expressing the opinion of the School Board in its considered judgment the school board feels that that is what would happen and they have been in this untamable position. They cannot operate a school without students apparently and they cannot have an educational system and program with them. I see my time is up, I presume --
Earl Warren: Your time is not up. That's the call for luncheon, but so if you have more to say you may take it up after lunch.
Richard C. Butler: We have asked for a rebuttal time, we have completed this part of our argument.
Earl Warren: Rebuttal, your rebuttal time of the Solicitor General, do you, you must make your entire argument in response to Mr. --
Richard C. Butler: Right.
Earl Warren: At this time.
Richard C. Butler: Oh at this time to Mr. Martin.
Earl Warren: Yes. So you may proceed after lunch, if you so advise.
Richard C. Butler: Thank you.