Earl Warren: Number 107, United States, Petitioner, versus Ross R. Barnett et al. Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. This case is here on certificate from the Court of Appeals for the Fifth Circuit. I shall present the opening argument on behalf of the Untied States and Mr. Leon Jaworski, who was the counsel in the court below by special appointment, will make any rebuttal. The question presented is whether the defendants were charged with criminal contempt of court or intentional violation of an order of the Court of Appeals, are entitled to trial by jury. Defendants claim a jury on two grounds. By statute, under the provisions of the United States Code that provides for the trial of certain contempt charges by jury when the contemptuous acts are also crimes, and second by the Constitution. Our answer to the statutory claim will be that it is effective for two independently sufficient reasons because the statute by its terms is applicable only to contempt to an order of a District Court and this was an order of a Court of Appeals, and second because the statute expressly accepts charges of violation of an order entered in an action maintained by the United States, and this in our view was such an action. Our answer to the constitutional claim is that the trial of contempt charges by the Court for the charges violation of the Court's order addressed to the -- to a party, has been in the established part of our constitutional law since the founding of republic. The legal issues arise because the Governor, the Lieutenant Governor of the State sought to arise -- to have array the whole colloquy of the State against a final adjudication by the federal court. The contempt with which they are charged caused rioting, loss of life and the need for federal troops to uphold the law of the land on the campus of the University of Mississippi. We're not concerned here with the details of those tragic events, but a careful understanding of the incidents leading up to the entry of the order in precedent and to its violation is essential to understand both how the United States came to seek this order and also why it was entered by a Court of Appeals rather than a District Court. For that reason, I want to take some little time carefully to state the sequence of events leading up to the order. In January, 1961, James Meredith applied --
William J. Brennan, Jr.: I missed you Mr. Solicitor General, for what reason are you going to go into this?
Archibald Cox: Because I think I'm concentrating on the facts insofar as they show first, how it came to be that the United States sought this order for violation of which United -- Barnett is charged with contempt and second, how the order it came to be made by a Court of Appeals rather than by a District Court. I think that both of those becoming important in the discussion of the legal argument, but I shall try to confine myself to the facts so far as a deal with that did not go into the extraneous events. In January, 1961, as I have said, James Meredith applied for admission to the University of Mississippi at a term beginning in February. In May, after a long delay in getting any answer from the University and a final rejection, he filed a complaint in the District Court alleging that he was the victim of racial discrimination. The case then wound its way through the courts including a four-month delay by the District Court in acting upon a motion for interlocutory relief, preliminary relief after the hearing on that motion had been completed. On June 25th, 1962, the Court of Appeals handed down an opinion, finding that Meredith had been the victim of racial discrimination and directing the entry of an injunction requiring the University officials to admit Meredith. The mandate issued in due course on the 17th of July. On July 18, Circuit Judge Cameron, who had not been a member of the panel, issued a stay of the mandate that had already in fact gone down. The panel of the three judges who had heard the case then invited briefs from the parties on the question of the stay and later filed on July 27 an opinion vacating the order of Judge Cameron. The panel also recalled the mandate and amended it to set forth specifically the exact terms of the injunction to be entered by the District Court requiring Meredith's admission to the University. In addition, the Court of Appeals issued its own injunction requiring the trustees and University officials to admit Meredith and to refrain from discrimination and respect to his continued dependence. Twice more than Judge Cameron issued a stay and as many times, they were vacated by the panel, but he issued a third stay. The private plaintiff brought the case here. Justice Black vacated all the stays and on September 13, 1962, the District Court finally entered an injunction in accordance with the mandate of the Court of Appeals. The full term that --
Potter Stewart: Was Mr. Justice Black's order itself in the nature of an injunction?
Archibald Cox: It was in -- it was in the nature of an injunction in addition to vacating the stay, good as I recall up until the District Court had entered the mandate. I don't think it's purported to go beyond that point.
Potter Stewart: So, it had the -- any conduct here was not even arguably any contempt of (Voice Overlap) --
Archibald Cox: I would think not, not only for that reason but probably also because Justice Black's injunction was limited to persons acting in active concert with the named defendants and at least, the contempt -- contemptuous act charged in the eventual citation here were actually could not be said to be an act of concert or participation with the University trustees. Indeed, they were designed to support the University trustees from doing what they had agreed to do when the question was brought (Inaudible). So, I think we would have a very hard time for both reasons. I mentioned and wish to emphasize it because events began to move very fast at this point that the full term of the University was to begin on September 20. And since Meredith was a transfer student, that not -- not only was the first day on which he might register but it was the proper day for him to register at the University and begin attending classes a little later. On September 16th, Governor Barnett moved to block Meredith's enrollment by issuing a proclamation of interposition characterizing the decree of the federal court as a direct usurpation of power by the Federal Government and directing all State officials to disregard it. Let me emphasize that this in all subsequent acts of Governor Barnett were not simply defiance by a single individual. It was action by the Governor of a State seeking to nullify the injunction by arraying against the full power of the State. The public officials and the police as well as all the members of the party list that he could arise. What had been a private lawsuit up to that point was thus converted into a deliberate challenge to the supremacy of the Constitution and the adjudicatory powers of the federal court. Accordingly, on the 18th of September, the United States applied to the Court of Appeals for an order permitting henceforth to participate in all proceedings in either the District or the Circuit Court. The Court of Appeals declined to act until it ascertained from the District Judge but the District Judge would not enter the order requested by the United States. The appellate court then entered an order permitting the United States to participate as it requested in either court and gave it the right to initiate further proceedings, including proceedings through injunctive relief such as might be appropriate in order to preserve the due administration of justice and the integrity of the judicial processes of the United States.
Speaker: General, was the Government's application -- an application would be admitted as a party or as a friend of the Court?
Archibald Cox: Well, it -- it spoke of being admitted as amicus curiae, but it also stated expressly what it wished to be given permission to do. And the permission was not only to file briefs and to prevent argument, but to initiate such further proceeding, including proceedings for injunctive relief and including proceedings in contempt as it might be necessary to uphold the integrity of the law. We take that the --
William J. Brennan, Jr.: Well, Mr. Solicitor -- might that have been done in an original action?
Archibald Cox: I suppose it might. We think this was an independent ancillary action --
William J. Brennan, Jr.: Tantamount to a proceeding.
Archibald Cox: Tantamount to a proceeding initiated by the United States.
Tom C. Clark: It was in the name of amicus, wasn't it?
Archibald Cox: The label as amicus curiae was there but the order -- perhaps I make it clear. The order contains these operative parts and I would think the operative parts spoke more effectively than any label that was put on it.
Arthur J. Goldberg: Did the Court of Appeals (Inaudible) original action of the United States?
Archibald Cox: Not of -- not of an original action. No, I was thinking more of a character and proceeding in the manner of jurisdiction. It had an ancillary jurisdiction. I think it might also had an original jurisdiction -- had a jurisdiction even though not ancillary in this sense, Justice Goldberg. It consulted with the District Court. The District Court had made it plain that it would not grant the relief. Therefore, the Court of Appeals was exercising reviewing, a revisory jurisdiction, not by direct appeal, but under the oral writ statute which of course has done in many cases where there is urgency, but if it was original, it would of course have to have been first in the District Court. On September 19, after the Government obtain --
Speaker: May I ask you one more question? I'm sorry to interrupt you. Was the -- was the Governor given an opportunity to be heard in opposition to the Government's application relief to intervene?
Archibald Cox: Not at that time. The Governor at that time had not been brought in as a party. He was not brought in as a party until the --
Speaker: Right.
Archibald Cox: -- early -- on the 24th and 25th. This in effect simply set the stage for the United States to come and apply for such orders as it might be necessary to deal with this challenge to the authority of its courts. On September 19, that's one day before Barnett was due to register at the University, a state court issued an injunction directing Meredith not to enter and requiring the University officials not to register and enjoining numerous federal officials including those in the Department of Justice and the United States Marshals from doing anything intended to enrolling at the University as a student pursuant to the decrees of the Court. The federal officials then removed that case in the District Court and asked the District Court to dissolve the injunction. Also, Meredith as I have said was scheduled to enroll at the University the next day on the 20th, the District Court denied -- refused to act promptly on the motion and set it down for a hearing on September 24th after at least three in most of the fourth day, possible day for enrolment had expired -- had passed. On the 20th, in the morning, the United States also applied to the District Court for a temporary restraining order prohibiting Meredith's arrest for a local offense and rejoining the implementation of a state statute just passed which made it a state crime for anyone to enroll Meredith or to attempt to enroll him pursuant to the decree. The United States sought an injunction against the enforcement of that statute. The District Court enjoined Meredith's arrest, but it again declined the further relief that was necessary to implement the mandate of the Court of Appeals that there'd be no discrimination in the enrolment of Meredith which was to take place on September 20. Again, it set the hearing for September 24th after their mandate would have been forwarded for at least three days. Later on September 20th, the United States applied for the necessary orders in the Court of Appeals. That Court, as it states in its certificate, required Government counsel to offer the District Court a second opportunity to take steps to implement mandate, the earlier decree. But when the District Court again refused to act, the Court of Appeals issued its own temporary restraining order enjoining enforcement of the state statute and enjoining enforcement of the state court decree. Still on September 20th, Meredith attempted to register at the University and then he was rebuffed by Governor Barnett from the trustees who named as registrant. The United States then moved to the District Court to cite certain administrative officials of the University with Chancellor, the Dean, the Registrar in civil contempt. The hearing was held on September 21st and on that day, the District Court dismissed the citation.
Tom C. Clark: What order was that based on, the civil contempt on what order?
Archibald Cox: That would have been based on the original decree of the District Court if my memory is right.
Tom C. Clark: Within the Court of Appeals.
Archibald Cox: No. That proceeding was in the District Court. The proceeding I just mentioned was in the District Court.
Tom C. Clark: And the District Court decided it for civil contempt.
Archibald Cox: Yes. And the District Court dismissed the citation.
William J. Brennan, Jr.: Now, it would not have been the order I think that entered in the District Court after Mr. Justice Black's statement.
Archibald Cox: On the merits, yes. Yes. Now, we did also apply on September 21st to the Court of Appeals for an order requiring the Board of Trustees to show cause by its members should not be held in civil contempt. After the District Court had denied relief in the proceeding against the administrative officials, the proceeding in the Court of Appeals was broadened to include the administrative officials. At the hearing on that application, on September 24th, the Board of Trustees and the Registrar now being squarely faced with an adjudication of the Court of Appeals, directed to them indicated that they were ready to comply with the Court decrees. And the Registrar announced that he would be available in Jackson, Mississippi at 1 p.m. on the 25th of September, that would be the next day, to register Meredith. On that same day, the 25th -- excuse me, the 24th, the arrangement proposed by the trustees was embodied in a specific order of the Court of Appeals, requiring the Registrar and the Trustees to register Meredith the next day at 1 o'clock. That same evening, after learning that Governor Barnett had again declared his intention to prevent Meredith's registration, the United States applied directly to the Court of Appeals which had been proceeding with the cause that very afternoon for a temporary order restraining Governor Barnett, his agents, and employees, and so forth from obstructing Meredith's enrolment and his continued attendance at the University. It's for the alleged violations of that order of September 25th, directed specifically to Governor Barnett that the defendants were later charged with criminal contempt. On September 25th, Barnett, after service of the order physically barred Meredith from restraining at the Jackson office of the University.
William J. Brennan, Jr.: Now, excuse me Mr. Solicitor, this is an order of the 25th of the Court of Appeals?
Archibald Cox: Yes.
William J. Brennan, Jr.: Now, was that ever followed by any -- the entry for any order in like terms in the District Court?
Archibald Cox: No, sir. That was the only order ever directed expressly to Governor Barnett and it was made in the Court of Appeals which on that very afternoon, had been -- had the cause before it, and which had arranged for the registration of Meredith in a specific order entered that afternoon -- the afternoon before, excuse me.
William O. Douglas: Who moved that order?
Archibald Cox: The United States sir.
William J. Brennan, Jr.: And it's for contempt for the (Voice Overlap) --
Archibald Cox: For the violation of that order that this --
William J. Brennan, Jr.: The civil contempt proceedings, were on the order entered in the District Court --
Archibald Cox: That's correct.
William J. Brennan, Jr.: -- much earlier.
Archibald Cox: Yes.
William J. Brennan, Jr.: And the criminal contempt proceedings are simply and solely on this order (Voice Overlap) --
Archibald Cox: On this order, which is I emphasize the only order ever addressed to Barnett except for subsequent one making that same more to more permanent.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Under Rule 65, those are limited to persons acting in active concert or participation and as I have suggested a moment ago, you see here the named defendants were read. They had been faced with the questions squarely and they had yet said, '"Yes, we will comply with the law of the land." And then Governor Barnett came and prevented them according to the allegations from doing what they were attempting to do under the decree and we would surely have a very difficult time under those circumstances in ordering that he was an hater or (Inaudible). Rule 65 was intended to cut down the sweeping decrees that used to be issued as both Your Honor and I know well, it lubricates the likelihood. It was intended to limit and it requires of participation with the named defendants. On the 25th, as I have said, Barnett physically barred Meredith from registering with notice of the order and the next day, Lieutenant -- Lieutenant Governor Johnson did the same thing. Those two Acts on the 25th and 26th, formed the basis of the first specific charge of criminal contempt against these two defendants. On the 27th, Meredith started for the campus, but was turned back because according to the subsequent charges, Barnett and Johnson willfully failed to take measures necessary to preserve law and order at the University and instead, encouraged the state highway patrol and various deputy sheriffs -- sheriff to prevent Meredith's entry. Now, the incidence of that day formed the basis of the second specific charge of criminal contempt. On the 28th and 29th of September, Barnett and Johnson were found in civil contempt and ordered to stand committed and to pay fines. And less before October 2nd, that would be the following Wednesday, they showed that they were in full compliance with the Court's decree and intended to comply in the future. On Sunday, September 30, after the civil contempt procedure, Meredith entered the campus in one of the buildings by arrangement of the Governor. As it's well-known, a large crowd gathered and rioting began. The state highway patrol and the large number of sheriffs, deputy sheriffs were present but they failed to act. It was violence upon a tragic scale. The President of the United States then dispatched military personnel to Oxford to restore order. The third specification is that Barnett knowing that the failure of the state highway patrol to maintain peace and order under campus on that day would result an obstruction of the injunction nevertheless, in violation of his obligation under the order of September 25th, willfully failed to exercise his authority to maintain law and order. Two later incidents should be mentioned. On October 2nd, Barnett's attorneys appeared back in the Court of Appeals and stated that the Governor was in full compliance with the order of September 25th and intent would comply in the future to the extent of his ability. On October 17th -- October 12th, counsel retracted the statement that Barnett intended to comply with the orders of the Court. A week later, they asserted that the Governor reserved the right to determine whether compliance with the orders was consistent with his position is Governor of Mississippi. And on the same day, the Court, all seven judges sitting unanimously denied motions to resolve -- to dissolve the restraining order. With Barnett and Johnson, refusing to give assurances of compliance, the Court of Appeals instructed the Attorney General to institute proceedings for criminal contempt. On the subsequent proceedings in the Court of Appeals, it suffices for present purposes since the case is here on certificate to say that the defendants did properly raise the claim of a jury trial. The Court of Appeals heard the argument en banc. The judges being evenly divided on defendant's right to a jury trial, they certified the question to this Court. The first question then is whether the governing statutes provide for trial by jury or trial by the Court. 18 U.S.C. Section 402, which is printed on page 58 of the Government's brief provides, I'll skip the unimportant words, any person willfully disobeying any lawful writ, etcetera, decree or command of any District Court of the United States, or any court of the District of Columbia, by doing any act or thing, therein or thereby forbidden. If the act or thing so done, it will be such a character as to constitute a criminal offense shall be prosecuted for such contempt as provided in Section 3691 of this Act. The next paragraph makes an exception for any suit or action brought or prosecuted in the name of or on behalf of the United States and then it goes on to provide that the accepted cases and all other cases of contempt not specifically embraced in this Section, shall be punished in accordance with the prevailing usages at law.
Byron R. White: Mr. Solicitor General, when did the -- the Act -- the Governor (Inaudible) accept, when did they become crime under some other laws?
Archibald Cox: They became crimes under a -- the Civil Rights Act of 1960 I think it was. Following the events in the Casper case in Tennessee and the events at Little Rock, a statute was enacted making obstruction on the decrees as federal court's crime.
Byron R. White: So that if this was occurred anywhere in the 1950s under this statute, there will be no right (Voice Overlap) --
Archibald Cox: There'd be no possible right under the statute and while we don't make anything as prior to Your Honor so we're glad too. It is -- this of course was quietly reverse of what the Clayton Act was directed at. But the Clayton Act was directed to dissolve some batteries, fights on the picket line, trustees of the property, or things normally doubt with the breaches of peace of which the sweeping labor injunctions ran against and which were then privately prosecuted without a jury. Here, the just of the offense is the challenge to the adjudicatory powers of the Court.
Byron R. White: But you make no -- say you make no suggestion I take it that (Inaudible) were not (Voice Overlap) --
Archibald Cox: We -- we have -- I don't display how many help I can get but we don't predicate in the argument on that. We have assumed that so far as that goes, they have been made crimes and that therefore so far as that point goes, Sections 21 and 22 of the Clayton Act would be applicable here.
William J. Brennan, Jr.: I -- I gather this argument you're now making Mr. Solicitor is on the premise that this was another Court of Appeals order that was violated, whether District Court order?
Archibald Cox: No, no. I'm just about to submit that this case is not covered by Section 402, first, because Section 402 applies only to charges of contempt to a decree of a District Court.
William J. Brennan, Jr.: Just by (Inaudible)
Archibald Cox: Just by one sentence with that Commission. The words of the statute that speak only of any person disobeying any decree or command of any District Court of the United States or any court of the District of Columbia. Section 3691 to which Section 402 refers you, provides whenever a contempt charge will consist of willful disobedience of any lawfully writ and so forth, of any District Court of the United States. Now, there's no possibility that the use of the words District Court resulted from some inadvertence or mistake of the compilers. Sections 21 and 22 of the Clayton Act from which they were derived also speak of the -- of the same words of any District Court of the United States in both Sections. Now furthermore, in Section 20 of the Clayton Act, which deals with certain acts that may not be enjoined by federal courts, the term used is any court of the United States. Now, the contrast again emphasizes that it was not inadvertent. And if there were any doubt in few of the words, the legislative history would dispel it represented in Clayton. Let me backup one step. The early bills proposed by Representative Clayton and this all began with the 1896 presidential campaign applied to all courts of the United States except the Supreme Court. Then, at the first Congress to pass in 1912, the bill recommended by the Judiciary Committee was limited to the District Court. Now, Representative Clayton explained this on the floor. He spoke of the criticisms of his earlier bill and showed how they've been meant. He said the next criticism was that it provided for contempt in courts where there were no jurors. We answered that by confining the operation of this bill to the Circuit Courts. He obviously meant the old Circuit Courts which issued many labor injunctions. And we exempt its operation in the courts of appellate jurisdiction, and there were similar statements by other members of the Judiciary Committee. In 1912, the Clayton contempt bill passed the House Representatives but it was defeated by the Senate. After the new administration took over, however, the provisions were included in the broader Clayton bill that we now know as the Clayton Antitrust Act and were enacted into law. The Committee Reports at that time expressly refer back to the 1912 bill and indeed they even incorporate the 1912 bill, the reports on the 1912 bill by reference so that there could be no doubt that it was taken with that history in the direct line of dissent. Respondent's chief argument, if I understand it, is that the inclusion of the words any court of the District of Columbia somehow show that the words District Court be in Court of Appeals. Now the argument as I understand it, is that the phrase any court from the District of Columbia includes what is now the Court of Appeals for the District of Columbia Circuit, that they would be entitled to a jury trial, that to deny litigants before other Courts of Appeals, the jury trial required in that Court would deny citizens of other states the privileges available in the District of Columbia and if that would violate Article 3 Section 2 of the Constitution which guarantees the citizens of each state, all the privileges and the immunities of citizens in the several States. The obvious defect is that Article 3 Section 2 does not apply to congressional action. Second defect is that the District of Columbia is probably not a State for the purposes of Article 3 Section 2. Third, it is rather unlikely that the term any court of the District of Columbia was meant to include more than the nisi prius courts which were not then known as Federal District Court but as municipal courts and as the Supreme Court for the District of Columbia.
Potter Stewart: Well, whatever is intended of any (Inaudible) that the language embraces the Court of Appeals for that (Voice Overlap) --
Archibald Cox: I -- well I suppose it does. I would think it would but I don't think the tail could wag the dog. I don't think that the fact that that Court of Appeals is included is evidence of the word District Court includes other Courts of Appeals.
Potter Stewart: Well, I don't think that's quite the argument. I think you -- you set out fairly the argument. It is only as I understand it and I may, I may misunderstand you but it's only that -- or it's basically that if the person in the Court of Appeals in the District of Columbia has the right to a jury trial in the criminal contempt -- contempt proceeding, then it's a denial -- perhaps a denial for equal protection, I grant you that's not on the Fifth Amendment but the Bolling against Sharpe as a -- that it's a denial, some -- some kind of a constitutional right not to accord him -- not to accord, states the same (Voice Overlap) --
Archibald Cox: I was -- first, I would suggest that there's nothing in the concept of equal protection as read into the Fifth Amendment that requires identical procedures, judicial procedures in the other Federal Districts and Circuits to those required in the District of Columbia. I was trying to suggest in addition, Mr. Justice Stewart, that if there is any constitutional problem, I think there's none, but if there is any constitutional problem, then -- and the Circuit Court was faced with choosing between whether the words District Court mean Circuit Court and choosing whether the term any court of the District of Columbia includes the Court of Appeals for the District of Columbia, it might well say "No, that usage is broader than what was required" and avoid the constitutional issue in that manner because the legislative history is so (Inaudible) that Congress intended this requirement to apply to courts where there are jurors. This was said over and over again. It was said after this language was put in on the floor of the Senate as well as before. So I don't think it has -- it has to be decided here because there's nothing to the argument on the Constitution. I simply say if I'm wrong as to that, that there are two ways out and I think that every indication would be that the District Court means District Court and that the general term was perhaps a little broader and intended, but I don't think that needs to be resolved now.Defendants also argue that even if Sections 402 and 3691 are not ordinarily applicable to violations of an order of an appellate court, they apply here because the Government could have chosen to prosecute Barnett and Johnson in the District Court. I've already indicated that the Government had no choice in this matter. In the first place, the Court of Appeals directed the Attorney General to institute prosecution. Now, this was not something initiated by the Attorney General in the first instance. In the second place, the Courts really had no choice. The order which Barnett and Johnson are charged with violating was literally and substantially an order of the Court of Appeals. That was the only order specifically addressed to Barnett personally. It was the only order that he clearly disobeyed whereas I've said the other injunctions were not addressed to him and were limited under Rule 65 of the Rules of Civil Procedure.
William J. Brennan, Jr.: What about Judge Bell's argument in his opinion Mr. Solicitor that he must abide the statutes acted, where the District Court only act as the District Court?
Archibald Cox: That seems to be that Court of Appeals was not acting as a District Court. This is somewhat along the same line as the intimations in the opinions below that the Court of Appeals ought not to have entered this argument, that it somehow was improper and should have left the matter to the District Court. It's not -- I think to say, that the order was made by the Court of Appeals --
William J. Brennan, Jr.: Well, I gather that Judge Bell proceeds to that.
Archibald Cox: Yes. Well, I've -- just one -- one more sentence. There's nothing in the certified question the challenges, the propriety of that order and I think also so far as the propriety of entering that order goes, if the question was brought -- that was unanimously settled by the judges in the Court of Appeals when they refused to dissolve it and of course, it was before this Court on a petition for certiorari which this Court denied. Now, that's a part of my answer was -- is that the order was properly made by the Court as a Court of Appeals. The other part of my answer of course, is that this was the only order addressed to Barnett. Now, I go beyond that. I don't wish to stay on simply having this adjudicated because it seems to us that the Court of Appeals acted with eminent propriety. The Court of Appeals which settled has jurisdiction to entertain ancillary proceeding, bringing in new parties in order to protect and effectuate its mandate. Here, I think he could have acted in the first instance as was done in (Inaudible) case years ago. Even so, at every possible stage, almost up to the very end, the court below did differ to the District Court, gave it an opportunity to do these things. It acted only when that part either couldn't do anything as during the time of Judge Cameron stayed when there's a practical manner the District Court couldn't be expected to act or after the District Court had been given an opportunity and declined to Act. That was true not only because it couldn't act at the time of Judge Cameron's stay. It was true when the United States applied it for the order of amicus curiae when Judge Brown called the District Judge. It was true and we sought the stays against enforcement of the state statute and against enforcement of the state decree and the court below declined to act promptly. It was partly true with respect to the proceedings for civil contempt but not entirely. That was the course of the hearing in the Court of Appeals. I emphasize again that the University officials agreed to register Meredith on September 25th. It was after that that the United States learned that Governor Barnett apparently intended to block the effectuation of that order of the Court of Appeals made that very afternoon. Now surely at that stage, it was proper to go to the Court which at that time had the cause before it and to seek this incidental supplementary relief directed to Governor Barnett forbidding him to frustrate its article.
William J. Brennan, Jr.: Well, I gather this argument that is that whatever the reason that the Court of Appeals acted as it did earlier on the 25th, it did act and entered an order disobedience of which then its representative of the Court was threatened by some proposed action of the Governor's and then as an instance to that order, you got this order.
Archibald Cox: That's true.
William J. Brennan, Jr.: And that was the only Court to which it could have gone --
Archibald Cox: At that stage (Voice Overlap) --
William J. Brennan, Jr.: -- against this order.
Archibald Cox: Certainly it was the proper court ability. I would like and I would also emphasize since you go back over the events, as I tried to state it, that the Court of Appeals at that stage was apparently the only court ready to act promptly in a manner in which its mandate had already been frustrated for four critical days.
Tom C. Clark: Did Meredith have an injunction also?
Archibald Cox: Meredith went before the Court of Appeals and sought a supplementary injunction on September 25th, yes.
Tom C. Clark: It did on the same language as the one which (Inaudible)?
Archibald Cox: Not -- not exactly. No.
Tom C. Clark: But it's the same -- the same party list.
Archibald Cox: It was -- it was directed at much of the same party, yes.
Arthur J. Goldberg: Could that be suggested Mr. Solicitor General that this order (Inaudible)
Archibald Cox: Oh no, no. There's no question. And that was made very clear during the presentation in the Court of Appeals on the argument of this point. There had been some discussions. No, we have proceedings for contempt of our arguments if I may put it colloquy and that brings me of course to a point which I must cover very briefly. The second reason that we urge that the defendants are not entitled to a jury under the statute is that the only section has barred too and 3691 carefully accept contempts committed in disobedience of any lawful writ entered in any suit or action, brought or prosecuted in the name of or on behalf of the United States. The order of September 25th that the defendants violated, was entered we submit in a suit or action brought and prosecuted by the United States. Let me emphasize first the nature of the proceeding and then come back to the statute. The United States obtained the order in prosecuting its own independent sovereign interest in the integrity of the processes of constitutional adjudication. Until mid-September, the case of Meredith against Fair was a private actual order to enforce what Meredith said for his constitutional right. United States didn't participate. We had no statutory authority to participate. When Barnett issued his proclamation challenging the adjudicatory powers of the federal court and arrayed against them, everything he could in the State of Mississippi then the entire process of the constitutional adjudication was assaulted and the power of the law was attempting to be settled in law. The interest that we were asserting was the interest, the public interest, the sovereign interest in the advocacy of court decree, in the rule of the law if you will and the power of federal courts to adjudicate constitutional issues had not simply Meredith's private interest. Now, our position before the Court as I said before we think is determined by the operative provisions of the order and that arguments based on the label of amicus curiae are wholly beside the point. Similarly, we think the debates on Civil Rights Legislation of 1957 are wholly beside the point. Those debates were concerned with the right of the Attorney General to sue to enforce a private citizen's constitutional right, the kind of right that Meredith was enforcing that he initially brought this action, but that was no longer the issue. That right had been finally and conclusively adjudicated that the issue that arose where the United States intervened was the question of the effectiveness of the Court's adjudications and it was that that was challenged.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: We were not labeled intervener. I didn't mean it in any technical sense. Whether we were not in substance of intervener might be debated, but certainly we were not labeled intervener and I didn't mean to -- we participated. We were given the right to institute proceedings what we instituted we think, it could be properly labeled a supplementary ancillary -- an independent ancillary action, independent in the sense that it was our action, ancillary in the sense that it was ancillary to the proceeding then in the Court of Appeals and previously in the Court of Appeals. And it was described as an ancillary action by the Court of Appeals unanimously and the declining to dissolve the order against Barnett when that question arose later in October. But even if there were doubt about the technical nomenclature, the very words of the statute make it plain that the exceptions concerned with substance, I submit, rather than form. And certainly this order was in substance entered at the suit of the United States. The statute has very broad term which is any suit or action brought or prosecuted in the name of or on behalf of the United States. But the sense as explained in both the House of the Senate was that when the Government goes to court to enforce a public right, the statutory requirement of a jury trial is inapplicable. I've quoted from the debates in my brief. There's no need to take the Court's time to read them here. They do state that it was intended to leave the United States with every power to enforce its judgments and demands that it has not that is before the enactment of the statute. So, that we think on both -- either ground, this is not a case in which there was a statutory right to a jury trial. I turn now to the defendant's claim that regardless of the statutes, they have a constitutional right to trial by a jury on the charge of willful defiance of the order and decree of an appellate court. Our first answer is this -- it's except by -- except as change by statute, trial by the Court against the party for violation of a decree directed to it has been part of the fabric of our law throughout the life of the republic. Indeed, it seems to me that if anything can be said to be law in the sense that it binds the Court as well as the litigants is the constitutional power to punish a party for contempt of a decree directed to him without the intervention of a jury. That principle, as the Court will recall, is expressed in an unbroken line of precedent in this Court. It was specifically adjudicated as recently as Green against the United States where the Court held after full consideration that the Constitution does not require trial by jury for criminal contempt.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I assume that when the Court -- I assume that when the Court spoke of the incidence of a criminal prosecution that it was speaking generally without attempting to --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I would simply say that that was not an instance of defiance of an order of a court which has historically and for very good reason, I should submit in the moment be regarded as a separate and distinct thing. I can't -- with all respect, I can't' believe that either the Court or Your Honor intended to overrule the case in that language. But of course, I don't think --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I --
Arthur J. Goldberg: This actually was the (Inaudible)
Archibald Cox: That's true. I emphasize again.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: The -- well, I would say that the Court was not there concerned where a party is not only violating a decree of a court addressed to him which constitutes contempt, which is always from a special branch of the law and then I can't believe that it was addressing itself to that. Now, I shall go on in view of one comment Your Honor, you may. I had to point out that here we were far less concerned with punishment than with future compliance. I'd like to defer for just a moment my remarks on that point but I intend to direct myself to it specifically. I was seeking to emphasize the extent to which this rule has been part of the fabric of our law. I mentioned the decisions in this Court and I think it consist practices in the lower courts for more than a century and a half. The state courts interestingly enough have followed the same rule. Except this change by statute, I believe that every state court including the Courts of Mississippi. All that a court has power to punish a party for contempt to which decrees without the intervention of the jury. The Congress, the legislative branch has also repeatedly acted upon the view that the Constitution does not require trial by jury in cases of criminal contempt. That view was implicit in the Judiciary Act of 1789 which was enacted by Congress that contained very many members of the Constitutional Convention and would of course propose the Bill of Rights including the Sixth Amendment. The contempt statute was thoroughly discussed and revised in 1831 after the trial competes with the trial of Judge Peck. Both the debates of the revision proceeded upon the understanding that the courts have power to punish parties for violation of court orders without the intervention of the jury. Beginning in 1896, there was the continuous debate upon a contempt bill that led up to the enactment of the provisions of the Clayton Act that we've been discussing. And again, the distinguished constitutional lawyers who took part in that debate accepted the premise that the Constitution does not require a jury. Indeed, the issue that they discussed was whether the Constitution permits the jury and of course, it's now settled that it does. The Clayton Act proceeds on that view so does the Norris-La Guardia Act in 1932 and the debate in the Civil Rights Act to the provisions of the Civil Rights Act enacted in 1960. Thus, I think I'm amply warranted in saying that the rule for which we contend is deeply woven into the fabric of our law. I submit also with all deference that the issue was not one that requires reexamination, especially not so close on the heels of the decision rendered after full deliberation in 1958. Unlike a goodly proportion of the cases of which constitutional precedents have been reexamined, there's been no change in the social and economic conditions that give rise to the precedent. The old doctrines have not lost their probable meaning in the light of new facts nor has experience demonstrated that the consequences of the doctrine were different that was supposed. The procedure is exactly the same as it's been followed for over a century and its impact on this defendant will be just the same as in all other cases. Nor do I think that it can be argued that the rule of constitutional law has had intolerable consequences, were cited to know evidence in increasing resort to the power to prosecute the criminal contempt. There's no suggestion of widespread gross abuse of power. The greatest danger misused of the power and to punish criticism of the Court has been confined, has been met by statute and by Court decision. The use of injunctions in labor disputes was another abuse because it circumvented jury trial and provided a method of private prosecution instead of public prosecution, and that was cured by the Clayton and Norris-La Guardia Acts. The existence of such statutes and I would like to stress from this point, also shows that this is an area in which Congress not only has the power to legislate but that it can be expected to legislate effectively. For the Court to adhere to the settled law here, would neither progress nor perpetuated justice. Congress moreover could change the law selectively picking and choosing between the different cases but it has done this in the past. It chose to bar views of contempt power by providing juries in appropriate cases without interfering by -- with trial by the Court where that form of trial is indispensable to upholding the rule of law and securing compliance with the parties. Now, what I have said thus far, of course, argues that Green against the United States is a sound constitutional decision which should not be reexamined. There are three features distinguishing this case with brief. So, that even if that decision were thought to be erroneous, or someone wish to hold the question of it, it would seem to us that still a jury trial in the present case would consistently be refused. In other words, whether dissented of which to reserve judgment, as I say, could still hold that defendants were entitled to a jury trial -- not entitled to a jury trial in the present case at reserved judgment on the case like Green. In the first place, in Green, the contempt was of a District Court. Here, we deal with a contempt proceeding instituted by the appellate court for violation of its own decree. The dangers of arbitrariness, unconscious prejudice, diversity on the part of any judge, subject these judges are to human limitations are minimized by the participate --participation of at least three and perhaps more judges of an appellate court. Again, requiring a District Court to summon a jury where punishment is necessary to vindicate its process is arguably so close to the normal procedure in the District Court for punishing other offenses of law that the exceptional cases can and therefore should be assimilated to the usual case, but of course with the Court of Appeals, a jury has never been part of its procedure and there's nothing to which to assimilate it either in that court or in the appellate jurisdiction, and not the original jurisdiction of this Court. The Court of Appeals has no facilities for summoning the juror. The statutes don't provide how it should be frozen or when should it come. Indeed, the logic of the defendants' argument is that neither a Court of Appeals nor this Court in the exercise of its appellate jurisdiction has power to punish for contempt. If for example according to the logic of their argument, the Chief Justice should make an order staying the execution of a prisoner in the State Capital case and the warden went ahead and executed the prisoner, this Court would have no power to punish the violation.
Potter Stewart: Well, that was the Shipp case, wasn't it?
Archibald Cox: That example is based on the Shipp case.
Potter Stewart: But how -- how common is it that -- how many times have ever been criminal contempt proceedings in the Courts of Appeals?
Archibald Cox: We collect those cases that came to our attention in a footnote in our brief. I would say, it maybe a wild guess that we cite somewhere around 15 cases.
Potter Stewart: You found that many?
Archibald Cox: Oh, yes. I say 15 Justice Stewart.
Potter Stewart: Well, that in an order magnitude.
Archibald Cox: I would say so. They're on pages 52 and 53 and it's --
William J. Brennan, Jr.: What's the procedure they found (Inaudible)? What's the procedure they found, take evidence before the --
Archibald Cox: Sometimes -- sometimes it has been agreed. This was done in the Shipp case, the parties stipulated that a master might take evidence.
William J. Brennan, Jr.: I would suppose there had been some NLRB.
Archibald Cox: Some of the cases I've mentioned, one of them that I recall is an NLRB case. Usually, civil contempt has been adequate. Usually, the fight has been over the computation of back pay or something like that and the proceeding has been in civil contempt. The criminal contempt is very rare because fortunately, it's very rare to have this kind of defiance of court orders. In the Court of Appeals, I mentioned the defendants recognized the logic of their argument. They said, "Yes, the Court of Appeals" and by analogy of this Court, the exercise of its criminal jurisdiction have no contempt power. That would mean according to the settled law that no one could punish the defendants for contempt of this order because the law in the language of the statutes seems to confirm it is that only the Court whose authority is violated, they punish for contempt. My second reason --
Byron R. White: Do you mean the -- do you mean the Court of Appeals here could not have directed the Unites States (Inaudible) criminal contempt proceedings by the District Court?
Archibald Cox: That would have been a very, very great question about it Mr. Justice. The statute speaks of a court punishing people for violation of its authority and no other. And the cases going back to Ex parte Tillinghast, 4 Peters 208 when -- In re Deems, which say that only the Court at which the contempt is directed if I may put it that way, it was the authority that held in contempt has power to take cognizance of it.
William J. Brennan, Jr.: Well, is that to suggest that there'd be no power in the Court of Appeals, remit to -- the Court of Appeals behalf the trial of a contempt?
Archibald Cox: That is certainly the implication on those cases. I -- I had to take to impress them farther than they go. There are the square holdings. There is one District Court case at which the District Court did under the statute I think remit a case to another District Court.
Byron R. White: Is this critical to your argument?
Archibald Cox: No, sir. I'm trying to suggest -- not at all.
William J. Brennan, Jr.: Because (Voice Overlap) --
Archibald Cox: I'm trying to suggest that there are grounds for distinguishing what I may call the dissent in Green from the present case. What is the business of appellate court --
William J. Brennan, Jr.: Because actually 42 (b) consent is really held different charges or rather non-charges before different judges, aren't they? Contempt on --
Archibald Cox: But usually in the same court.
William J. Brennan, Jr.: They're the same court but somehow it's surprising.
Archibald Cox: As Justice White said, I -- I don't regard this as of the essence of my argument, I do point out that the important distinction is that this is contempt of an appellate court, the other cases were the District Court which are accustomed to deal with juries. Second, although we argued in Green, and I believe we'd argue again, that there was a continuing challenge in Green's conduct to the effect to this of judicial decrees. Still, from the standpoint of one who rejected that argument or wished to reserve judgment upon it, the quality of the contemptuous conduct in the present case is altogether different. Green was concerned with a normal enforcement of the criminal law to the prosecution, bail and surrender (Inaudible). Well, the defendants simply disobeyed the order and to surrender himself on what -- as if he had broken away from the Marshal or escape jail. In the present case, Barnett not merely disobeyed the order of the Court of Appeals, he was engaged in a calculated effort to prevent others from complying that he was summoning a whole power of the State to vitiate and set aside the adjudicatory powers of the federal courts. His attempt to nullification challenged the power of the Court to act as a Court, it wasn't simply disobedience. They threatened, as I say, that principle of constitutional adjudication, the supremacy of the Constitution, not the whole rule of the law. So that I assume for a moment that in dealing with simple disobedience to a court order, that because of the ordinary administration of criminal justice, it may be appropriate to provide for the intervention of a jury where that historic power, not only to find facts but to acquit a defendant and disregard of both the law and the fact, exercising an arbitrary power of dispensations. But in vindicating its authority to adjudicate and bind the parties by a forcible decree, a court should not be left dependent upon the unanimous support of 12 jurors, anyone of whom, if he were in sympathetic to the basic adjudication, could block conviction and best stay in the defendants to nullify the law. Our Constitution guarantees the rights of unpopular minorities. The courts are rightly, zealously protected, but the judicial protection may also improve hollow if the vindication of the courts decree could be prevented by the whim of a single jury, sympathetic to a lawless man or to a lawless state official. Then at this --
Potter Stewart: (Voice Overlap) your point is that in this case, and in the Court which is the unpopular minority?
Archibald Cox: The court decree was entered in this case as there might be numerous cases we think of. This decree was entered to sustain the constitutional rights of an unpopular minority. And I say that if the authority of a court to make such a decree is subject to attack and the decree cannot be vindicated except by referring the issue to a body run from the very populous, that is attacking it then the protection of the unpopular minority is likely to prove very slim indeed.
Potter Stewart: Was this an argument that you -- in an ordinary criminal case or the --
Archibald Cox: I don't think the --
Potter Stewart: -- unpopular criminal defendant, isn't it?
Archibald Cox: I don't think that the unpopular criminal defendant is challenging the integrity of the judicial process, the legal process in quite the same way.
Arthur J. Goldberg: You mean they're challenging the integrity of the law.
Archibald Cox: I think he is realistically. I think realistically, he's -- he's violating it, he is disobeying it but I don't think he under minded.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: No.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: No, no, no.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: But this is a reason I suggest for distinguishing this case and for maintaining the power that the courts historically have had. If I may perhaps put it this way, then we'll bond to another point that may really add to this, Justice Goldberg. So long as one thinks, it appears to me, of the Court, the Government as suppressing it to -- a -- a precedent to few free people then the power of the jury to intervene becomes an important safeguard. But as soon as one begins to think of the law as an instrument for protecting the weak and the oppressed, as an instrument for securing constitutional rights of minority, of protecting us if you will our better selves against our worst self, then, there is a different and more complicated problem.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: No, that brings me -- that brings me to the third essential difference between Green in the present case. If Green with decree -- commanded Green to surrender himself for commitment, he disobeyed. Later, he came in and was committed. His acts were all complete, the decree was exhausted. The Court was concerned wholly with punishment for past events.
Hugo L. Black: Was that a crime?
Archibald Cox: It was not a crime at that time. No, it was not, Your Honor.
Hugo L. Black: Is it now?
Archibald Cox: Yes, sir. In -- in the present case, quite the reverse is true or was true with the contempt citation issues, I'm speaking of at that time. The original decree and mandate of the Court of Appeals required the University not only to enroll Meredith but to permit him to continue to assess and obtain an education without discrimination. The order directed to Barnett imposed those same continuing obligation. When the Court issued the citation for criminal contempt, the decree far from being spent, imposed future obligations upon Barnett. The Court was still concerned with his future compliance at the contempt proceeding, although it was labeled criminal because it did look in a sense of punishment, it was ended vindicating to bind the course of the Court's decree so that Barnett would not resume a future course of nullification of those very decrees. In other words, this was not a situation in which civil contempt was an adequate mean of securing affiance, of enforcement. The black and white distinction between civil contempt which were described in the classroom as a means of enforcement, criminal contempt or we describe there as a -- as solely concerned with punishment, does not always fit the realities of life of court decrees. It's true enough to say that when a defendant is imprisoned, until he signs the deed of returns an heirloom, if there's no punishment that while he's sent to jail coercively, he is not punished because he has the key to the jail in his pocket as we're saying. Whereas if he destroys the heirloom or fails to surrender himself in violation of a decree so far as the decree is spent, then the situation is essentially punishment because future compliance with the decree is impossible. The distinction is not so simple, where the decree imposes on the defendant a continuing obligation to refrain from unlawful acts that he has committed in the past and may commit again at any time for some period in the future. The sheriff, to take an example, who engages in a course of intimidation or coercion, prevents citizens from exercising their constitutional rights say to keep them for registering the vote or to keep pickets and other labor organizers in the company town from exercising the right of free speech, is no threat while he is imprisoned. The problem of enforcement arises as soon as he is free unless there is some effective punishment for past violation. In the present case, Barnett could scarcely frustrate the decree while the troops were at the University. The problem that faced the Court of Appeals both when it ordered the Attorney General to institute this proceeding and later was essentially one of restoring the principle of Government according to the laws under normal conditions so that there would be compliance with the adjudicated obligation without the need fore force.
Arthur J. Goldberg: Mr. General, (Inaudible)
Archibald Cox: In the first place, that was -- he was ordered – I have two comments on that. First, that was directed primarily at enrollment and I am now seeking to emphasize the obligation not to interfere with its continued attendance which would become a problem. He had promised to --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Second, Mr. Justice -- second, Mr. Justice Goldberg, I wonder really whether its civil contempt, it was proper to impose imprisonment or a fine or something that took place in the past unless you do something in the future. I -- I don't know the thinking of the Court of Appeals but it confronted there and of course the very problem that I say, exist now. That there is no way here of compelling Barnett to comply with the decree in the future and I emphasize that this is a continuing decree unless there is a power deciding for contempt for each violation as it occurs. But he could scarcely -- he gave no assurance that he would not resume his prior course of conduct. The events that you referred to with civil contempt led his attorneys one stated in open court, that he would comply with the order insofar as he was able. But 10 days later, they retracted that and a little after that, Barnett issued a public statement reserving (Inaudible) himself as Governor, the right to decide whether or not he would comply with the injunction. The only way that probably still essentially one of compliance and I submit to you that the only way, the only available process for preventing nullification was to -- for the Court to have available power to impose some punishment each time, a subsequent violation occurred and that seems to me what the contempt proceeding looked to.
Arthur J. Goldberg: Because I'm trouble by you Mr. Solicitor (Inaudible) --


Earl Warren: Number 23, Harry Slochower versus The Board of Higher Education of the City of New York. Mr. London.
Ephraim London: This case is an appeal from the -- the decision of the New York Court of Appeals. It involves the constitutionality of New York City Charter Section 903, that's the same statute that was considered by the Court in the Regan case. The Court did not pass on the constitutionality of the statute in that case or at least the problems that are here presented were not presented in the Regan case. The question before the Court is simply whether a State can pass a law forbidding its employees to invoke a constitutional right in a federal proceeding or whether it can pass a law providing for the discharge of public employees who invoke the Fifth Amendment right against self-incrimination in a federal proceeding.
Felix Frankfurter: The matter -- what the matter is the question is narrowed on that?
Ephraim London: I don't think it is, Your Honor.
Felix Frankfurter: Well, you just suggest employees in the abstract, all sorts of employees?
Ephraim London: We have -- we have a specific employee, Your Honor, a --
Felix Frankfurter: A specific class of the employee, (Inaudible) that it's all teachers.
Ephraim London: This is one teacher.
Felix Frankfurter: One teacher?
Ephraim London: Yes, Your Honor.
Felix Frankfurter: Only one (Inaudible)
Ephraim London: I haven't raised the question of academic freedom --
Felix Frankfurter: All right.
Ephraim London: -- on this appeal. I don't think it's necessary that the -- the statute provides, suffice its relative to the issues in this case that if any employee of the city before any legislative committee refuses to testify regarding official conduct on the ground that his answer would tend to incriminate him, his term or tenure of office would terminate. Then the statute goes on and say that he shall not be eligible to election or appointment but any other office or employment under the city or any other agency. In short, where the federal employee invokes his constitutional right in a federal proceeding, he is not only dismissed but he cannot thereafter hold city office either elective or appointive.
Speaker: Have they passed on (Inaudible)
Ephraim London: I didn't answer that, Your Honor. I think in the reply brief and that I -- I think it completely answered it if the one -- one short answer to that is that the court below considered it to pass on the question.
Speaker: Could define and what for?
Ephraim London: If I may read, Your Honor, I'm reading now from the decision of the Appellate Division that's on the record at page 50 and the Court there says, "The Charter provision does not abridge the constitutional privilege against self-incrimination". Now, going on to the Court of Appeals, the minority opinion, I'm reading now from page 61." All sides concede that aside from the supposed applicability of Section 903, the teachers could not be deprived of there positions the exercising their Fifth Amendment right citing matter of grave." I'd like to come back to that citation in just a moment. Now, going back to the majority opinion in the Court of Appeals and I'm reading from page 56 of the record. The Court in discussing the opinion below said that of the Appellate Division found and now I'm quoting, "That the Charter provisions did not abridge the constitutional privilege against self-incrimination."
Speaker: Where is the Court (Inaudible)
Ephraim London: Well, if Your Honor please, on the -- on the questions that were raised on the motion to amend the remittitur, I think the -- the counsel for the city took the position that if these questions had been passed upon by the Court, there was now a necessity for the amendment of the remittitur. And I believe the Court adopted that position. I think it was perfectly correct, if I may say, and has nothing to do with the issue before the Court, I oppose the -- or I was -- I advise against the making of a motion to amend the remittitur because I thought that the record was quite clear. If I may proceed with the argument or rather what the facts of this particular case, before September 1952, Professor Slochower had been a teacher or professor of literature and of German at Brooklyn College. He had been teaching there for some 27 years. In September of 1952, he was called before United States Senate Subcommittee. The Subcommittee was investigating the Internal Security Act and at the very outset, Senator Ferguson, who was the Chairman of the Committee, made it clear that he was not investigating the public educational system but only the internal security problems that affected the nation. There was some later qualification of that statement by another member of the Committee but I think that the opening statement of the Chairman stood as the purpose of the -- as the purpose of the hearing. Dr. Slochower came before the Senate Subcommittee and testified freely on the question of present membership in the Communist Party, even not that he was a member of the Communist Party at the time of the inquiry. He stated, he had not been a member of the Communist Party for the years following 1941. He invoked his privilege against self-incrimination only with respect to questions relating to the years 1940 and 1941. He said he would answer any other question that the Committee asked and he did.
Earl Warren: We'll -- we'll recess now Mr. -- Mr. London this (Inaudible)