William H. Rehnquist: We'll hear argument next in No. 96-7000, Bobby Lee Ramdass v. Ronald Angelone. Mr. Bruck.
David I. Bruck: Mr. Chief Justice, and may it please the Court: In Simmons v. South Carolina, this Court held that a capital defendant may rebut the State's allegation of future dangerousness by showing, if it is so, that he could never be paroled from prison on a life sentence if the jury gave him a life sentence. Immediately after deciding Simmons, this Court reversed this case and remanded it to the Virginia Supreme Court for reconsideration in light of Simmons. The issue now presented is whether the Virginia Supreme Court erred when it effectively engrafted onto this Court's holding in Simmons an additional requirement that, in order to come within the ambit of Simmons, a defendant must not only have no possibility under State law of being released on parole throughout his entire lifetime, but also that that ineligibility have been formally declared on the day of his capital sentence. Now--
William H. Rehnquist: Well, you say the... the court engrafted that onto Simmons. But I... I thought that Simmons had simply spoken in terms of eligibility for parole under State law.
David I. Bruck: --Yes, but it... it looked at... it implicitly looked at all of State law and not--
William H. Rehnquist: Well, how can you... how can you say it implicitly looked at all of State law?
David I. Bruck: --Parole eligibility under Simmons means that there is no possibility of parole absent... and the Court looked at remote... what it described... the plurality described as hypothetical possibilities, some of which would have--
William H. Rehnquist: Well, but... but the plurality is not the controlling opinion in that case.
David I. Bruck: --Yes, but the concurrence necessarily had to accept... in order to reach the same result, had to accept the plurality's characterization of parole ineligibility as not including remote hypothetical possibilities. And it listed such things as commutation, which can lead to parole eligibility and release on parole, clemency which can have the same, and also a change of law. In other words, it looked to State law--
William H. Rehnquist: When you say... now, tell me again. When you say it, what are you referring to? The plurality opinion?
David I. Bruck: --The plurality made this explicit, but the concurring opinion of Justice O'Connor, which created the majority in Simmons, could not have taken any other view because if that was correct, then it would not be... if... if the plurality opinion as to what constituted ineligibility was not the view of the Court, then Simmons... the holding of Simmons as expressed by the concurring opinion could not have been handed down because it would not be possible to say, given these remote hypothetical possibilities in the future, that Mr. Simmons himself was truly ineligible for parole.
Sandra Day O'Connor: Well, this is something slightly different than that, of course. It's not a remote hypothetical possibility at all, but rather an expected entry of a judgment, is it not?
David I. Bruck: Yes, but it is--
Sandra Day O'Connor: And... and is that a ministerial act, or... or what was to take place here? Is it a... something that might well not have occurred--
David I. Bruck: --No.
Sandra Day O'Connor: --the entry of the judgment?
David I. Bruck: No. Whether we call it ministerial or whether we simply acknowledge that it was inexorable really makes no difference. It was going to happen. The jury's verdict on this, what would have been the last strike, had been handed down. He had been found guilty. All motions to... to strike the evidence, that is, for directed verdict, judgment NOV, in effect, had been already denied and, under Virginia law, could not be renewed. The sentencing was 19 days away. Now, the... interestingly, the State has never, until its brief in this Court, ever identified something, anything, that might have happened in reality to... to block the entry of that judgment and thus--
Sandra Day O'Connor: Now, the defense counsel did tell and argue to the jury--
David I. Bruck: --Yes.
Sandra Day O'Connor: --did he not--
David I. Bruck: He did.
Sandra Day O'Connor: --that this person would never, as a practical matter, get out, if he lived to be 120?
David I. Bruck: Yes, but Virginia law prohibited him from giving the most important aspect of that, which was that these long terms of years could not be reduced by parole, and the jury spotted the omission. And we know that. We don't have to speculate about that because they came out and said, if we give him life, is there any possibility of parole? Now, this is the Simmons question. Recall that Simmons is a right of rebuttal. It is not a right to have the defendant's technical legal status on the day of his sentencing hearing exhibited to the jury. It is a right to rebut an issue that the State brings into the case in... under Virginia law. And under Virginia law, it was joined much more vigorously than it ever was in Simmons. In Simmons, it was a non-statutory factor that arguably was present in the prosecutor's jury argument. Here it was the entire legal basis for the State's request for the death penalty.
Antonin Scalia: Mr. Bruck, in this case you say, you know, it's pretty clear that it would have... in the next case it won't be quite so clear that... you know, that... that he will get the third... the third strike which will render it impossible for him to be paroled. And the next case will be a little less clear than that. Frankly, I... I don't know where to stop, short of the bright line that's urged by your opponents in this case, which is at the time the sentence in this case was pronounced, could you say it was the State law that this person could not be paroled? And you could not say it at the time that this... that this jury was sitting.
David I. Bruck: But we do say that because what Virginia failed to do is to look not at the single statute, but at the entire relevant body of State law which includes the provisions of State law that I was citing a moment ago to Justice O'Connor.
William H. Rehnquist: Well, shouldn't we look to the Virginia Supreme Court for that decision as to... I mean, are you saying that the State supreme court in deciding a question of whether someone was parole eligible made a mistake of State law?
David I. Bruck: No. We should definitely--
William H. Rehnquist: What are you saying?
David I. Bruck: --look to the Virginia law if the State gives us the law and if the State looks at the relevant State law. But that is what Virginia failed to do. They looked not at the issue... in effect, the issue that they had to address--
William H. Rehnquist: Well--
David I. Bruck: --I'm sorry.
William H. Rehnquist: --Well, you... you concede, don't you, that under the law of Virginia, this person was not eligible for parole at the... at the critical... or was eligible for parole at... at the critical point?
David I. Bruck: We concede that... that under Virginia law, his ineligibility had not yet been formally declared, but when one takes into consideration the other provisions of Virginia law, we by no means concede that there was any possibility of his ever being paroled. And that is the question in rebuttal that... that it was so crucial in this case and that Simmons recognized what the... a defendant has a due process right to have the jury know about.
David H. Souter: Well, you're saying... I guess you're saying... that the question of what is a sufficient certainty or a sufficient probability, if you will, that there will be no parole is a question of Federal law. That's a question of what Simmons means, and Simmons was a constitutional decision.
David I. Bruck: Yes, although--
David H. Souter: So, Virginia can say, yes, in this sense the... the ineligibility is yet to be determined because a decree has not been entered. But I think you're saying the question before us, the Simmons question is, is it certain to a sufficient degree of probability, however we may want to articulate that, for Simmons purposes, that he will not, at some relevant future time, be parole eligible and that's a question of Federal law?
David I. Bruck: --That's correct. Now, that is certainly a... a question that is... that is... that arises from State law, but I think it's tremendously important in this case that the Virginia... it... we do not disagree with an answer from the Virginia Supreme Court that we don't like. Virginia never addressed that question. And the Commonwealth now says that that question has nothing to do with Simmons, that the State court was under no obligation, in effect, to... to say what the correct answer to the jury's question was, and that has nothing to do with Simmons. Simmons--
Sandra Day O'Connor: Well, Justice Scalia has raised a question which I think is one that should be of concern, and that is, where do you draw the line? Where is the line drawn? And if we were to agree with you that in substance it was, in effect, just a ministerial act that remained and therefore this man was parole ineligible, what about the next case where, as a practical matter, the defendant wouldn't be parole eligible for 80 years? Must that be given also to the jury in an appropriate case?
David I. Bruck: --If... well, Simmons of course said lifetime. And it would arguably, I think, be an extension of Simmons to... to change that. And of course, we cannot extend Simmons in habeas and I recognize that.
Sandra Day O'Connor: So, you would concede--
David I. Bruck: Yes.
Sandra Day O'Connor: --that that kind of hypothetical--
David I. Bruck: Yes.
Sandra Day O'Connor: --is ruled out by Simmons--
David I. Bruck: Yes.
Sandra Day O'Connor: --that to do that would require an extension.
David I. Bruck: I do concede that.
Sandra Day O'Connor: But you think that you fall within Simmons, properly understood, without extending it in this case.
David I. Bruck: Yes. Yes, we absolutely believe that. Recalling of course--
Ruth Bader Ginsburg: May I go back to with the... the question... one of the things I believe that I said in Simmons, it doesn't necessarily have to be the judge, if the lawyer can bring it out. And here the lawyer told the jury. But we know that the jury had a question on that question. They were deliberating for what? 3 hours? And they came out and said, if defendant is given life, is there a possibility of parole at some time before his natural death? And that's the question that the lawyer had wanted to answer before, and... but he couldn't under Virginia law.
David I. Bruck: --Precisely. Precisely.
Ruth Bader Ginsburg: So... so, he couldn't do what Simmons said a lawyer could do and then the judge doesn't need to do it. Virginia law prohibited the lawyer from doing that.
David I. Bruck: That is exactly correct. And--
Antonin Scalia: But it makes no difference if the answer was... was no, he would not be ineligible for parole.
David I. Bruck: --But that was not the answer under Virginia law.
Antonin Scalia: Well, you ultimately have to come back to that. You ultimately have to come back to showing that that was not the answer.
David I. Bruck: And I think that's very clear. I mean, the State has--
Ruth Bader Ginsburg: May I... this is a jury that's not composed of lawyers. Their question was... didn't say is this person eligible for control. They asked is there a possibility of parole at some time before his natural death. They were asking is there any chance he's going to get out.
David I. Bruck: --Exactly. Exactly. And that is the question with which Simmons is concerned. That's why I say... and it is clearly established--
Antonin Scalia: Is that what Simmons... it's not a matter of law. It's just, you know, what are the odds--
David I. Bruck: --No.
Antonin Scalia: --if... if it's really a thousand to one even though there's a... you know, a small possibility under State law? Is that Simmons said?
David I. Bruck: No. It... it arises--
Antonin Scalia: It doesn't have to be absolute impossibility under State law?
David I. Bruck: --Yes, yes, that's correct, with the exception of remote hypothetical possibilities. And in Simmons--
Antonin Scalia: Oh, I see. So, it's not absolute. It's... it's--
David I. Bruck: --Nothing is absolute except death.
Antonin Scalia: --Well, no.
Ruth Bader Ginsburg: Taxes.
Antonin Scalia: I think whether under current... whether under current Virginia law he will be ever eligible for parole can be absolutely answered yes or no.
William H. Rehnquist: Then it would be a much easier rule to apply than the one you--
David I. Bruck: But it would not apply the rule in Simmons. It would change and constrict the rule in Simmons. And the best proof of that is the fact of Simmons itself because if Virginia was correct that the rule of Simmons only can be called upon when State law has already affixed the stamp of parole ineligibility to a defendant, then Simmons would have lost the case. And the reason for that, as the State pointed out in their brief in Simmons, is that under South Carolina law... and there was State case law, the State against McKay, State against Torrence, making this very clear, that in South Carolina, the decision as to whether or not the two strikes and you're out statute that was involved in Simmons prohibits parole is made not by the sentencing court. In fact, it may not be made by the sentencing court. It is made after conviction by the parole board. And the court may not make that decision. And that was one of the reasons why South Carolina created the rule of no comment that was partially invalidated in Simmons.
Antonin Scalia: --That just says that the court can't make the decision. It doesn't say what the decision had to be. The decision by the parole board had to be that he is ineligible.
John Paul Stevens: Yes, but your point is the decision had not yet been made. This isn't his case.
David I. Bruck: The decision had not yet been made. That's correct.
John Paul Stevens: By... by the authority who had the authority to make the decision.
David I. Bruck: And had the Attorney General of South Carolina taken the view that the Commonwealth takes now, they would have made exactly the same argument and said, well, there are statutory exceptions. Perhaps the parole board... there's no South Carolina case construing these exceptions to the two strikes and you're out rule. We don't know that the South Carolina parole board might not have said that his priors were part of a continuing course of conduct, takes him out of the rule. And all kinds of things could happen. Lightning might strike, and that in effect is Virginia's argument here, that lightning might strike.
Antonin Scalia: The difference is there he was in the rule. All of the factors that had to occur before the parole board decided the case had occurred, and here something has not occurred which is essential to the judgment that you're not parolable, namely that you've been convicted three times.
David I. Bruck: Justice Scalia--
Antonin Scalia: That hadn't occurred.
David I. Bruck: --everything in Simmons had not occurred either because under South Carolina law, which is different than Virginia's, the parole board has to make a factual determination. Now, it's true that the antecedent--
Antonin Scalia: That's just the determination. Sure, the determination hadn't been made, but all of the factors that bear upon that determination had occurred. And here all of the factors that... that bear upon the determination you want made had not occurred.
David I. Bruck: --The only factor that remained... I... I don't believe it's a real distinction because... because of the difference between South Carolina law... but the... and... and Virginia. But the only factor that remained here was that 19 days hence judgment would be entered on this armed robbery conviction. Now, what... what is so revealing about this... and recalling, of course, that we're dealing with the right of rebuttal. The State says beyond a reasonable doubt, jurors, will he commit acts of violence in the future... not will he be a dangerous person. That's not the sentencing question. It's will he commit acts of violence in the future that will... that will... or that would pose a substantial threat to society. Now, that is the issue that the State joined in this case, and under Simmons, he was allowed to give the critical information that he was... whatever threat he might pose, was going to be in prison. Now, the State, as I say, has never offered a suggestion, just as the Virginia Supreme Court certainly offered no suggestion, of how on the level of reality this ineligibility could... could fail to become final. But finally in the brief, they do make two suggestions, and the suggestions show why Virginia has been so reticent about engaging this on the level of reality up till now because both suggestions... one is that the prosecutor in the other case might decide to null pros the case after the jury's guilty verdict, and the other suggestion is that the judge might whimsically decide to dismiss it. Now, this I think can only be described as unlawful behavior or certainly arbitrary behavior, and that cannot be the foundation for a finding that there was... that the answer to the jury's question in this case, the Simmons question, was yes. The answer to the jury's question was no. Now, it is true that lightning might strike, but it was true in Simmons. And the Simmons plurality listed some of the ways in which lightning--
Ruth Bader Ginsburg: Mr. Bruck, what about the answer is... you're asking us to draw the line where in... in practical reality we know that this person is going to get judgment entered on the conviction. But suppose it's just that somebody has pled guilty to a qualifying... a crime that would qualify for a strike, hasn't yet been sentenced.
David I. Bruck: --Exactly the same thing would apply. In fact, Simmons itself was based on guilty pleas. The... the guilty--
Ruth Bader Ginsburg: But in Simmons there was the... the adjudication. I'm... I'm taking this case one step back from where we are in the Domino Pizza case. So, the... the... it's not just that the... that all post-trial motions have been made and that nothing... nothing was wanting except the judge's signature on the judgment. But there's just been a guilty plea. There's been no sentencing.
David I. Bruck: --A guilty plea is at least conclusive as a jury's verdict. It's an admission of everything necessary to support the judgment. In the absence of any reason to doubt the validity of that guilty plea, we have the same issue. But of course--
David H. Souter: Well, I take it you would accept a reasonable doubt standard. Is there any reasonable doubt that this person will... will be parole eligible at, you know, some future time?
David I. Bruck: --That would be... and... and I think that's a nice way of restating the holding of Simmons in--
Antonin Scalia: What if he's only been indicted for the third crime, but the... the evidence is overwhelming?
David I. Bruck: --Simmons does not apply.
Antonin Scalia: Simmons... why not? I mean, chances are virtually certain he's going to be convicted.
David I. Bruck: I--
Antonin Scalia: But you say Simmons would apply if he had already confessed to that third crime even though he hasn't yet... what if he has confessed to it?
David I. Bruck: --I'm sorry?
Antonin Scalia: What if he has confessed to the third crime?
David I. Bruck: If... I do not believe that Simmons could be read to extend that far without extending it.
Antonin Scalia: Why not? I mean, as you say, if he's confessed, he's going to be convicted.
David I. Bruck: We don't even know if it's going to be prosecuted. But this is a situation where a jury's verdict, or in the hypothetical a guilty plea, has been rendered, and that puts this in a different... it is always possible, of course, to imagine--
Antonin Scalia: I know, and I don't want to go nuts trying to figure out how far down the line we're... we're going to carry this.
William H. Rehnquist: Is the issue of reasonable doubt, as you've now phrased the thing... is that... that submitted to the jury?
David I. Bruck: --No. This is... this is a question of law, and in the vast majority of cases, there will be no doubt whatsoever. Indeed, this issue can no longer arise under Virginia law.
William H. Rehnquist: --the issue of law. Ordinarily you don't speak of an issue of law as being decided on a basis of beyond a reasonable doubt.
David I. Bruck: Well, we did not use that term in our... in our brief. We took--
William H. Rehnquist: But I thought you agreed with Justice Souter.
David I. Bruck: --Well, I... I think that is... that is one way of looking at it. The question is any possibility, excepting remote hypothetical... remote hypothetical possibilities.
David H. Souter: Why don't... why don't we say that the determination is a determination which depends both on law and on fact?
David I. Bruck: It does.
David H. Souter: And in making that next determination, we require a very high standard of probability?
David I. Bruck: I... I would be quite comfortable with that. Finally, before I sit down, I... I would just like to say that this... this would be a different case had Virginia engaged that analysis, but they did not. A State court's determination... a State charges with us arguing about State law. That's not right at all. Had Virginia asked that question, the Simmons question, in effect the jury's question, and answered it based on State law, it would be a very unusual case in which a Federal court could go behind that. It would really require I think a showing that the State court's answer was in some sense a deliberate evasion of the... of the Federal right. But Virginia did not address, let alone answer, that question. And that is why the decision here is contrary to Simmons because that is the... the question in Simmons. If I may, I'd like to reserve--
Anthony M. Kennedy: Just one... one question. The... the question presented to us and the State's submission do not quarrel with the fact that you... or your... your... the petitioner's counsel at the trial submitted a suggestion... suggested response to the jury's question that, it... it seems to me, almost takes away your argument in this case.
David I. Bruck: --Well, let... let us recall that he was working under the strictures of Virginia law, which were absolutely settled. He was... he was floundering trying to fashion something--
Anthony M. Kennedy: And it was... and it was pre-Simmons.
David I. Bruck: --And it was pre-Simmons.
Anthony M. Kennedy: Still, it... it seems to me the... the answer that the... that the trial counsel suggested contradicts most of the arguments you're making here.
David I. Bruck: He was halfway through, thinking on his feet about how he could fashion something that wouldn't contradict Virginia law, which is contrary to Simmons.
Anthony M. Kennedy: I understand. But the point is, it seems to me, not very well preserved in the record.
David I. Bruck: Of course, the Virginia Supreme Court did not, in any sense, base its decision on that, but reached the merits. If I may.
William H. Rehnquist: Very well, Mr. Bruck. Ms. Baldwin, we'll hear from you.
Katherine P. Baldwin: Mr. Chief Justice, and may it please the Court: The question before the Court is not whether the Virginia Supreme Court erred, as was stated this morning. The question is not even whether Ramdass' claim could possibly fall within the ambit of the sentence. The only question before the Court is whether, under 2254(d), the Virginia Supreme Court's decision was an unreasonable application of clearly established law. So, unless Ramdass' claim of functional review of parole ineligibility is somehow clearly established Federal law, unless in other words, it falls within the four corners of Simmons, then he is not entitled to relief in this collateral case. And that's... that's an important distinction here. He cannot meet that requirement for several reasons. First of all, look at Simmons. In the four corners of Simmons, nowhere in any way, shape, or form, implicitly or explicitly, is this functional view of parole eligibility voiced or discussed.
David H. Souter: In this connection, would you comment on... on your brother's argument that this case is like Simmons because in neither case was there a decree in so many words by a court that the individual was parole ineligible? In Simmons, the... I guess the parole board had... had never come to that conclusion, and in this case the... the judgment had not been entered in the third case. So, he said it's on par with Simmons. Would you comment on that?
Katherine P. Baldwin: Justice Souter, the reason why we can't even consider that argument under 2254(d) is because it's not contained in Simmons. That argument has been gleaned from the briefs that were... that were submitted by South Carolina and by the transcript of the oral argument in the case. Nowhere in the case--
David H. Souter: Well, but there was... there was no... I think maybe he would say, even... even accepting your response, there's no... there's no statement in Simmons to the effect that there had been an entry of... of a... a kind of definitive order. And so, if one wasn't required in Simmons, wasn't... one isn't required here.
Katherine P. Baldwin: --I think a reasonable jurist and... and objectively reasonably could have looked at the opinion in Simmons and determined, because of the tremendous repetition of the phrase, ineligible under State law, almost... the word parole ineligible was almost never standing alone. It's always coupled, multiple times, in... in both the concurring opinion of Justice O'Connor and in the plurality opinion, over and over of ineligible under State law. And that can only have one meaning in Virginia, and that means upon entry of a judgment order. Nowhere else--
David H. Souter: But the question... the question is what it... what that phrase means as a matter of Federal law. And... and his argument is that it... it can't mean that a... a definitive decree, stating in exactly those words, parole ineligible, must have been entered because, number one, the Simmons opinion didn't say so, and number two... I think this is correct... the record in Simmons indicated that there had been no such decree entered.
Katherine P. Baldwin: --Correct, but we cannot--
David H. Souter: But that's... but that's a question of Federal law.
Katherine P. Baldwin: --Well, we cannot... first of all, we cannot impute anything in the briefs or the oral argument to the Virginia Supreme Court. And the determination under 2254(d) is whether the Virginia Supreme Court's decision was a reasonable application of Simmons. So, right there, we cannot look at what... unless this Court is going to rule, which I don't think it possibly could, that a... that a State supreme court not only is now responsible for reasonably applying the opinion from this Court, but also must go behind that to determine what implicitly the Court meant by reference to the briefs, et cetera.
Sandra Day O'Connor: Let... let me ask you this. For example, suppose the judge on the third case here had taken the order form home in order to sign it. He's overworked and had a lot to do, and he takes a lot of homework home. He signed it but failed to get it back to the clerk or got it back to his clerk 2 days later, and so it wasn't formally entered in the docket by the clerk, by the stamp until after Ramdass had been sentenced. Now, covered by Simmons or not?
Katherine P. Baldwin: Not covered by Simmons, Justice O'Connor?
Sandra Day O'Connor: Why not?
Katherine P. Baldwin: Because in that case, I think it would present a different case, one in which once presumably the defendant found out about this, it would be his duty to bring that to the attention of a court. And if some error of State law occurred... for instance, let's... let's assume that actually the order had been entered on that third case and the judge in Ramdass' capital case didn't even know about it. Let's assume that there was a clear error of State law. That would be the defendant's duty to bring that to the attention of the court, take it up on appeal and get reversed.
Stephen G. Breyer: What happens if it's subject to appeal?
Katherine P. Baldwin: I don't understand the question.
Stephen G. Breyer: I mean, we have Mr. Simmons back, and Mr. Simmons says, you know, there's something you didn't know about, although I've been convicted and the conviction had been entered, it could have been reversed on appeal. He doesn't say that. The State says it.
Katherine P. Baldwin: It would--
Stephen G. Breyer: Now does he get... we're going to execute him now?
Katherine P. Baldwin: --It would depend on what the State law is on the--
Stephen G. Breyer: Well, I mean, all right, fine. Let's suppose the State said the following. In our State... and here... here's how it goes. Right? The prosecutor says, this is a very dangerous person. You better execute him. The defendant says, judge, I would like to tell the jury that I happen to be in jail forever. I can't get out on parole. And the rule is... the rule is he has a right to tell him that if, under State law, he's ineligible for parole. All right? Well, why isn't he ineligible for parole? You say, well, because although the jury had convicted him, the judge hadn't yet done the ministerial thing of putting the order down. Well, I say all the time people convict somebody. They may be ineligible for parole. Maybe there would be an appeal. Maybe he would be reversed on appeal. Maybe they'd be... maybe they would decide the prisons were overcrowded, let them all out. Maybe they would decide... maybe there would be a war and everybody would get an amnesty. Now... now, suppose a State said, by the way, in our State we consider a person ineligible for parole only when it's really definite, only when we can be really certain that they won't be reversed on appeal, that there won't be a general amnesty given by the governor, that there will not be a declaration of war, and so we have to get everybody out to fight in the armed services. In our State, we consider all those things have to happen. Should a Federal court say, oh, that's very different from Simmons?
Katherine P. Baldwin: --Well, Justice Breyer, is your question that under that particular State's law, those are factors that go into the State's determination--
Stephen G. Breyer: I'm just saying--
Katherine P. Baldwin: --of parole eligibility?
Stephen G. Breyer: --on your... on your view of it... you know, what we're imagining is ridiculous possibilities. In fact, the possibility of reversal on appeal is a lot less ridiculous than the possibility that this judge wouldn't enter the order. But what we're considering are fairly ridiculous possibilities, and a State court that happens to announce under our State law a person is really ineligible for parole only when all those ridiculous possibilities are negative. I'm saying I think... and your view is if the State court says that, what?
Katherine P. Baldwin: If the State law is... and... and, Justice Breyer, I disagree that the entry of a judgment order on conviction is anything technical or... or formalistic--
Stephen G. Breyer: That would be a different question. Fine.
Katherine P. Baldwin: --whatsoever. The Fourth Circuit rule... and I... and I think it's correct, that the entry of a judgment order making someone... divesting someone of eligibility for parole is not a trivial matter. It's a very... what the Fourth Circuit termed an age-old rule, that before--
Stephen G. Breyer: You know, but what I'm doing is I'm not being clear myself. You see, I'm trying to find out what your argument is. Is your argument that if a State court were to say, in our State you're not... the law is identical to what it is in Virginia but for one thing. The State court announces, we consider you ineligible for parole only when all appeals have been terminated. We consider you ineligible for parole only when the Governor announces he's not going to give you a pardon, et cetera. What's your view of how that works?
Katherine P. Baldwin: --My view is that under the laws that exist today, under the four corners of Simmons, that if he is ineligible under State law, he gets the Simmons instruction, and if he is eligible under State law, he does not. Now, if this Court wants to extend that due process right by some extra considerations of other procedures or taking into account some other State's procedures and wants to expand on Simmons, then it must do so in that case on direct appeal, not collateral review.
Stephen G. Breyer: So... so, in your... in your view, if the State court were to say, we consider our people ineligible for parole only when the Governor announces he's not going to give a pardon. In your view, that person would not qualify for the instruction under Simmons.
Katherine P. Baldwin: Under... currently under Simmons, yes, Justice Breyer. And of course, there's... to my knowledge there's no such State that has that type of parole law.
Stephen G. Breyer: If I... if I believe that you were wrong about that, would you lose?
Katherine P. Baldwin: Wrong about my interpretation.
Stephen G. Breyer: If I believed that Simmons... that would be so far from what Simmons intended, that... that--
Katherine P. Baldwin: No, I would not lose in this case because my case does not present those facts. My case... I don't think under any interpretation of 2254(d), it could be said that the Virginia Supreme Court's interpretation... application of Simmons was unreasonable, objectively or otherwise.
Sandra Day O'Connor: --Well, except for the fact that the entry of the judgment may have been a purely ministerial thing.
Katherine P. Baldwin: It--
Sandra Day O'Connor: It was not... it was not in any way a situation where it wouldn't be entered in the--
Katherine P. Baldwin: --Justice O'Connor, it was not. Ramdass' argument on that point is... is completely wrong on Virginia law.
Sandra Day O'Connor: --Tell us why.
Katherine P. Baldwin: He has conceded that... that the authority in Virginia gives to a circuit court the authority to vacate or set aside a jury's conviction before entry of judgment. He has conceded that point.
Sandra Day O'Connor: Sua sponte... sua sponte the judge can do that?
Katherine P. Baldwin: He certainly may, yes, Your Honor. It's... it's--
David H. Souter: You have... you have given us in your brief a couple of factual scenarios on which the judge might do that.
Katherine P. Baldwin: --And there are many more, Justice Souter.
David H. Souter: And... no, but there may be many more, but I'd like you to comment on what seems to me the just total lack of reality of the suggestions you make. The judge... one of your examples was, well, the judge in that case might say, look at this poor guy, he's just been convicted of murder, we... he shouldn't have so many convictions against him. So, I'm going to vacate the judgment here. I mean, that's not a real world example. And if... if that's the basis upon which you think something might happen other than the entry of judgment, then I... I just don't think that you've got a realistic argument. Am I missing something?
Katherine P. Baldwin: Justice Souter, I believe that it's... it's Virginia Supreme Court 3A: 15 gives a circuit court unfettered authority to set aside the judgment. Now--
David H. Souter: Have you ever known of a circuit court that said, gee, I feel so sorry for this fellow because he's got too many convictions against him, I think I won't enter judgment in this most recent one? Do you have an example?
Katherine P. Baldwin: --I... I think that absolutely what could occur in that sentencing--
David H. Souter: My question was whether you had an example. Do they do that in Virginia?
Katherine P. Baldwin: --They certainly do.
David H. Souter: They do? You have--
Katherine P. Baldwin: Now, it may not be--
Speaker: --you have examples in Virginia in which the judge says, too many convictions--
Katherine P. Baldwin: --I do not have case examples, Justice Souter.
David H. Souter: --I won't enter judgment?
Katherine P. Baldwin: I think that what could go into a judge's thinking is when presented with some error of law that occurred at trial... and we have... this record in this case does not show what Ramdass was prepared to argue at that sentencing hearing in the Domino's Pizza case. But he could have--
Ruth Bader Ginsburg: --the judge had turned down all post-trial motions--
Katherine P. Baldwin: --No.
Ruth Bader Ginsburg: --No?
Katherine P. Baldwin: No. He had... what he had rejected... and this is what has been kind of unclear from Ramdass' argument. What he had rejected were your typical motions to strike on the basis of insufficiency of the evidence.
Ruth Bader Ginsburg: Have there been the equivalent of a... whatever they call it these days... a directed verdict, NOV?
Katherine P. Baldwin: No. He was... he was set for a sentencing hearing, which meant at that hearing he could have filed a motion to set aside because of some legal error that occurred at trial. A judge and a prosecutor both could very well in that case, after he had already had a death sentenced entered, decide that they do not want to risk having some bad legal ruling go up on appeal. That... that's a perfectly... that could happen anytime.
Ruth Bader Ginsburg: But the... the legal rulings at the trial itself--
Katherine P. Baldwin: Correct.
Ruth Bader Ginsburg: --those all would have had to have been made, wouldn't they?
Katherine P. Baldwin: No. No, Justice Ginsburg.
Ruth Bader Ginsburg: What--
Katherine P. Baldwin: In the... in the sentencing hearing, he had a right under rule 3A: 15 to file a motion to set aside--
Ruth Bader Ginsburg: --Even though he--
Katherine P. Baldwin: --for legal error.
Ruth Bader Ginsburg: --even though he had made... didn't he make a motion--
Katherine P. Baldwin: To my knowledge, the only thing that was--
Ruth Bader Ginsburg: --Did he make a motion post-verdict?
Katherine P. Baldwin: --I believe not at the sentencing hearing. I believe he made--
Ruth Bader Ginsburg: No. I'm talking about what--
Katherine P. Baldwin: --on sufficiency of the evidence, as far as I know.
Ruth Bader Ginsburg: --Yes.
Katherine P. Baldwin: But the record doesn't show what other possible legal errors there are. We just don't know what he could have done at that hearing. We have no idea.
David H. Souter: No, but I suppose by a parity of reasoning then, that the... that the parole ineligibility wouldn't have been certain upon entry of judgment by the trial court because he could always appeal. An appeal could always reverse it. I meant there's... there's no end--
Katherine P. Baldwin: But that's not the rule in Virginia, Justice Souter.
David H. Souter: --Pardon me?
Katherine P. Baldwin: That's not the rule in Virginia. The rule in Virginia, under the Virginia Supreme Court's ruling, is once the conviction order is entered, at that point then the Department of Corrections can consider that conviction.
David H. Souter: No. But our question is the Simmons question. The Federal law question is, is the ineligibility certain to a very high degree. And... and you're saying, no, it's not because under Virginia law, entry might not have been entered... a judgment might not have been entered on this conviction, and the reason might be because the judge felt sorry for him or for some other reason or--
Katherine P. Baldwin: Many other reasons.
David H. Souter: --or because he made a... a motion which we don't now have before us, a motion that might have led the judge to do that. And... and my point is, if that possibility is sufficient for Simmons purposes to say that his parole ineligibility is uncertain, then the possibility of his appeal and some success on appeal should equally lead to an uncertainty that would bar the application of Simmons. Why... why isn't that line of reasoning sound?
Katherine P. Baldwin: Because that's not what the law in Virginia is on parole ineligibility.
David H. Souter: I... I'm suggesting the... the law of the United States under Simmons, and you're saying that the... the possibility that judgment may not be entered makes the ineligibility point too uncertain to apply Simmons. And all I'm saying is, if that is sound, then the possibility of an appeal in Virginia, upon which he might get relief, presumably also makes ineligibility too uncertain to apply Simmons. Isn't that right?
Katherine P. Baldwin: No, I think that's not right because Simmons doesn't speak in terms, anywhere in the opinion, of... of some separate Federal issue apart from what State... State law defines as ineligible.
Antonin Scalia: Well, never mind even State law. Even if we were doing it on the basis of Federal law looking at Virginia, if the conviction were overturned on appeal, I assume what would happen is that the prior ineligibility for parole, which existed upon the conviction, would be eliminated. Isn't that right?
Katherine P. Baldwin: It would be.
Antonin Scalia: But it wouldn't retroactively mean that he was not ineligible for parole. He is ineligible in Virginia from the time of conviction.
Katherine P. Baldwin: That's correct.
Antonin Scalia: And should it be reversed later, he would then be... he would then be eligible.
Katherine P. Baldwin: That's correct.
Antonin Scalia: But he would have been ineligible at the time of this trial.
John Paul Stevens: May I ask you a question on this point? Is it not correct, whether we call it Federal law or State law, if we look at the concurring opinion in Simmons, that if the judge had given an instruction... but as you say, he didn't really have to give... saying that as things look right now, if that judgment is entered, he'll be ineligible for parole. The prosecutor would have been entirely free to ask the judge to say yes, but that judgment might be set aside on appeal. It might not be entered. He might escape. There might be commutation. There might be a change in the law, and there might be a pardon. So, the... that even if the instruction had been given, to the extent that there is this uncertainty in the picture, it... perhaps the prosecutor could easily have cleared that up and said nothing in life is certain because of all these factors.
Katherine P. Baldwin: That's correct, Justice Stevens, but Simmons does not require the instruction unless he is ineligible.
John Paul Stevens: No, but one of the points that's made in Simmons is that the prosecutor has this option of being sure that the information is not misleading. See, that's what... the main thing we're looking for--
Katherine P. Baldwin: Correct, if he--
John Paul Stevens: --is not misleading the jurors.
Katherine P. Baldwin: --If... well, but Simmons tells State courts very clearly, expressly a very narrow exception to the general rule was carved out in Simmons.
William H. Rehnquist: The concurring opinion in Simmons pointed out that this is an exception to the general rule, that you ordinarily don't get into this subject because it can be so confusing to the jury.
Katherine P. Baldwin: Yes, yes, Mr. Chief Justice.
John Paul Stevens: Of course, it also pointed out how unfair it is for the prosecutor to make an argument about future dangerousness and conceal the fact that he's not likely to get out of prison. It... that argument is also in the concurring opinion.
Katherine P. Baldwin: Well, I would disagree with that because I think what Simmons expressly says is that's only unfair if he would be ineligible as a matter of State law. And you have to look at when a State court is reading Simmons, is it reasonable for them to rule and to decide... read Simmons, look at this defendant. If he was eligible for parole, then Simmons simply doesn't apply. And there's nothing in Simmons to support this different type of nebulous standard that Ramdass is now proposing.
Stephen G. Breyer: Well, I don't see why... why exactly. I mean, the... the argument on the... I think would be that... that Simmons says when a person is ineligible for parole--
Katherine P. Baldwin: As a matter of State law.
Stephen G. Breyer: --as a matter of State law, you must tell the jury, let him tell the jury.
Katherine P. Baldwin: Correct.
Stephen G. Breyer: Well, this person is. He simply is.
Katherine P. Baldwin: Well, the Virginia Supreme Court said not.
Stephen G. Breyer: Now... now, but they're not deciding the Federal question.
Katherine P. Baldwin: I believe--
Stephen G. Breyer: I mean... and Simmons itself... see, it's a Federal question whether he... and... and they're not deciding that Federal question. And Simmons itself understands that there is some uncertainty as to whether the person really will get out. The conviction could be reversed on parole.
Katherine P. Baldwin: --That's right. That's irrelevant.
Stephen G. Breyer: And there's no difference between that kind of uncertainty, like reversal on parole, and the kind of uncertainty that consists of whether the judge will perform a ministerial act. Now, that's... that's... I'm recasting it because--
Katherine P. Baldwin: Simmons--
Stephen G. Breyer: --I want to get your response to the recasting of it.
Katherine P. Baldwin: --Simmons set... Simmons set a threshold. It was a very bright line rule for State courts. And... and I believe that that is... some of the members of the Court this morning have said Ramdass' proposed standard... there's no way... this Court would have to take every case to decide on the facts of that case--
Stephen G. Breyer: Why... why?
Katherine P. Baldwin: --whether beyond a reasonable doubt.
Stephen G. Breyer: Since there... why... why would you? Suppose you simply said where they're ineligible and they are ineligible where there has been an authoritative determination that they are guilty of the crime.
Katherine P. Baldwin: Well, this--
Stephen G. Breyer: I mean, that's it.
Katherine P. Baldwin: --This Court may--
Stephen G. Breyer: Clear, bright line, and I don't think anybody could say that there has not been an authoritative determination that he was guilty of the crime that... that led to no parole. Now--
Katherine P. Baldwin: --This Court may want to say that.
Stephen G. Breyer: --Yes.
Katherine P. Baldwin: But it would have to say that in that case on direct appeal because Simmons doesn't say that.
Stephen G. Breyer: Well, but wouldn't that be implicit in Simmons? I mean, the issue didn't come up in Simmons as to... I agree with you. It didn't come up because everyone knew that he was ineligible, but if you were to ask a lawyer what does it mean, they'd say, well, where there has been an authoritative determination, nobody would think that the court of appeals had to decide an appeal that wasn't gotten there. Everybody would think there has to be some judicial determination.
Katherine P. Baldwin: But, Justice Breyer, the... the issue is not what is implicit in Simmons under 2254(d). The issue is was it clearly established, and... and for that matter... and looking at whether it was clearly established or not, even 3 years after Simmons, this Court was debating in Brown v. Texas. Three members of the Court joined Justice Stevens' statement regarding denial of cert... as to whether Simmons might... should apply to defendants who are eligible for parole after serving--
Stephen G. Breyer: No, no, but that I grant--
Katherine P. Baldwin: --ineligible after serving--
Stephen G. Breyer: --is absolutely not decided in Simmons.
Katherine P. Baldwin: --And--
Stephen G. Breyer: It's the question of the authoritative--
Katherine P. Baldwin: --that's... but that's essentially the issue that Ramdass is making now. I think Simmons should apply to me despite the fact that I am eligible for... that I am eligible for parole as opposed to ineligible for parole. If that... if that issue was debatable on this--
Stephen G. Breyer: --Surely you're not eligible for parole if you haven't been convicted. I mean, if the judge is going to set aside the jury's conviction, you're not eligible for parole.
Katherine P. Baldwin: --That's correct.
Stephen G. Breyer: Parole doesn't enter into it.
Katherine P. Baldwin: If that Domino's Pizza case had not been entered... and it may not have been at that time. We're now looking with hindsight, so we know what happened. But at that time, no one could say with certainty that would happen. And if that had not been entered, you can be sure that Ramdass would have been fighting tooth and nail to have been found eligible for parole. I mean, his argument would have been completely different. He would not have an argument at all today. His argument is based upon a misapprehension of State law, and we know that because the Virginia Supreme Court has said it. The... in Simmons, this Court repeatedly used the phrase, ineligible under State law. This Court, 3 years after Simmons in Brown v. Texas, was telling State courts it's debatable on the courts still as to pretty much the extent of the Simmons rule as applying to eligibles or ineligibles for parole. You cannot, therefore, go back and say that the Virginia Supreme Court's decision was in any way objectively unreasonable. In O'Dell, this Court defined Simmons as that narrow exception carved out of the general rule. It's a bright line rule. The Court found under State law and... and Ramdass does not take exception with the State law ruling that he was eligible for parole. There was... there is nothing in Simmons to say that there is some separate standard. And in fact, as the Fourth Circuit said... and I think they were correct... anytime we get into a discussion of parole eligibility, it necessarily is going to collapse into a discussion of State law. It's not like a case where you have, oh, there's some subsidiary State law kind of factual findings and then you make a Federal law determination. Simmons is uniquely dependent, completely, unless this Court is going to change it and extend it... completely dependent on what State law is. That's the way Simmons was written. If the Court doesn't like it and wants to extend it, it needs to do that in a case on direct appeal. It cannot do it in a collateral case under 2254(d) because you cannot, in this case, look at Simmons, read Simmons, and say that what the Virginia Supreme Court did was unreasonable.
Stephen G. Breyer: Well, of course, that's true. I mean, you're absolutely right that it's dependent on what State law is. But is it dependent upon what the State law decides the Federal question to be?
Katherine P. Baldwin: According to Simmons, the State law determines whether he's eligible or not.
Stephen G. Breyer: That's true, but here was the Virginia court doing anything other than deciding the Federal question of whether, for purposes of Simmons, he is eligible or ineligible for parole?
Katherine P. Baldwin: I think they're the same. Under the way that Simmons was written--
Stephen G. Breyer: All right. Now, do we have to listen to a State court's determination of that Federal question?
Katherine P. Baldwin: --If the Federal... if you're saying the Federal question is whether he's eligible for parole or not, then yes. The answer is yes because Simmons, as currently written, would give a reasonable jurist reading it that impression.
Antonin Scalia: If we're going to say that it's our decision, a Federal decision, whether he's eligible under... whether he's eligible for parole, it would be a very strange way to describe it as saying it depends on whether he's eligible for parole under Virginia law or under South Carolina law. It seems to me meaningless to say... to say that we're going to refer to South Carolina law, but the answer that South Carolina gives is not necessarily the right answer. I really don't understand how that argument goes. Do you understand how that argument goes?
Katherine P. Baldwin: No, I don't--
Antonin Scalia: It depends on Virginia law, but it really doesn't depend on Virginia law.
Speaker: [Laughter]
Stephen G. Breyer: I was trying--
Katherine P. Baldwin: --I don't understand it.
Stephen G. Breyer: --The... the... this is very unusual. It's very complicated and philosophical in a sense. It's an unusual case where the legal situation in... in Virginia is totally clear. There's no disagreement about it.
Katherine P. Baldwin: Correct.
Stephen G. Breyer: And the only thing that happens in that absolutely agreed upon legal situation is a Virginia court says, we are going to use these words, ineligible for parole, to apply to this situation simply because the judge hasn't yet come in yet. Now, I'd say that's the Federal question.
Katherine P. Baldwin: Well--
Stephen G. Breyer: And... and it's--
Katherine P. Baldwin: --I'm not sure what the--
Stephen G. Breyer: --that's the Federal question, about whether you should use those words ineligible for parole in respect to Simmons on this absolutely agreed upon legal circumstance in Virginia.
Katherine P. Baldwin: --But I don't see how... how a State court, looking to see whether someone is eligible for parole or not under State law, can do anything else. I mean, they have to look at their own law--
Stephen G. Breyer: No. We could easily do it.
Katherine P. Baldwin: --and determine--
Stephen G. Breyer: What you could say is, the matter of Federal law which is clear from Simmons is the following. Where there has been authoritative determination by the State that the person is ineligible for parole, or convicted of the third crime that makes him ineligible, that's when Simmons cuts in. Now, I think maybe that's implicit in Simmons and... and you would say--
Katherine P. Baldwin: --Well, I think--
Stephen G. Breyer: --no, it isn't. But one thing I would be certain is I don't think that the State court's answer to that question would get deference from a Federal court.
Katherine P. Baldwin: --Well, then I think the Federal court then would be redetermining State law ineligibility for parole, and that is not contained anywhere in Simmons. What Ramdass--
Antonin Scalia: I guess we could have said in Simmons that the question is whether he is likely to be paroled by... by South Carolina or... or very likely to be paroled by Virginia.
William H. Rehnquist: Beyond a reasonable doubt.
Antonin Scalia: Beyond a reasonable doubt.
Katherine P. Baldwin: --Yes. This Court could have said that.
Antonin Scalia: We didn't say that. We said whether he is eligible for parole under South Carolina--
Katherine P. Baldwin: That's correct.
Antonin Scalia: --or Virginia law.
Katherine P. Baldwin: But what Ramdass' real complaint here is simply that his order of convictions came different than what he wishes they were. That claim isn't before the Court. He never preserved that claim. If he wanted to have preserved that claim, he should have asked for a continuance or asked for something to make him ineligible under State law because that's his real complaint here--
John Paul Stevens: May I ask--
Katherine P. Baldwin: --one that was never made.
John Paul Stevens: --how... is your answer to their argument that the same thing was really true in South Carolina because the parole board hadn't yet made him ineligible for parole, that that's not mentioned in the opinion? Is that your answer to that argument?
Katherine P. Baldwin: Well, but you can't impute that certainly to the Virginia Supreme Court reading Simmons because that entire argument--
John Paul Stevens: But even though that's part of our holding, our opinion didn't explain that and therefore the State court wasn't on notice.
Katherine P. Baldwin: --Justice Stevens, I don't believe it's in the opinion at all.
John Paul Stevens: No, I know it isn't, but it was in the briefs.
Katherine P. Baldwin: Correct.
John Paul Stevens: And so you... but if that fact had been spelled out, do you think Simmons would have been decided differently?
Katherine P. Baldwin: No, I don't.
John Paul Stevens: No. So, then isn't... isn't it fair to say even though that was the holding and the only unfairness for the Virginia Supreme Court is it wasn't spelled out in the opinion?
Katherine P. Baldwin: No, no. Then at least he would have--
John Paul Stevens: If they had read the briefs and knew that was a fact, do you think they would have come out the same way in this case?
Katherine P. Baldwin: --If it was... if that was... if his claim of a different standard of reviewing parole eligibility, for whatever reason, because the parole board in South Carolina hadn't yet announced it or--
John Paul Stevens: Well, the argument would be the same argument you're making here, that he really was not yet ineligible for parole because the parole board had... had not yet entered the order that made him so.
Katherine P. Baldwin: --I think then at least he'd have some argument here, but he has no argument here because Simmons doesn't say that. I mean, at least then he might have a basis for his claim.
John Paul Stevens: But Simmons decided that. Simmons decided that.
Katherine P. Baldwin: To my knowledge--
John Paul Stevens: Because that argument was on the table and the Court didn't think it was strong enough even to mention in the opinion and yet rejected it.
Katherine P. Baldwin: --If that's true, if we have to impute that to State courts to go back and read the briefs to see what was rejected, Justice Stevens--
John Paul Stevens: Either that or we have to assume that most State courts would react to that argument the same way we reacted to that argument, that it's so obviously frivolous that to wait for that meaningless delay, that that shouldn't change the result.
Katherine P. Baldwin: --Well, I think absent it somewhere in the opinion, you simply can't say that the Virginia Supreme Court unreasonably applied Simmons.
William H. Rehnquist: Thank you, Ms. Baldwin. Mr. Bruck, you have 7 minutes remaining.
David I. Bruck: If Your Honor please, really the only point I'd like to respond to is this idea of slippery slope that Virginia advances. I would suggest that if there is any slippery slope on this case, it is on the other side of the issue. If... if the... the due process rule, the right of rebuttal rule in Simmons were now to give way to something so constrained by formalism and an arid explication of what State law says parole eligibility means, to the exclusion of the Federal question, if Simmons is to be contracted in Ramdass v. Angelone to mean that, then States that no longer wish to be... to abide by Simmons at all have a road map to opt out of the Simmons principle. And I think the South Carolina procedure is a perfect way of doing it, to delay the formal declaration, and there could be some sorts of factual determinations, none of which would be in doubt. There would be no suspense about any of it, but the time had not yet come when the jury wants to know the answer, so you never have to tell them.
Antonin Scalia: Maybe we should reformulate Simmons then and say, you know, that issue is whether he is likely or overwhelmingly likely or beyond a reasonable doubt will be paroled by Virginia.
David I. Bruck: One need not go so far.
Antonin Scalia: That... that would solve the problem that you're worried about. But unfortunately, that isn't what we said in Simmons.
David I. Bruck: Well, I'm really not worried about it because I don't think that... that this Court will restrict South Carolina in such a way.
William H. Rehnquist: Well, maybe Simmons itself was a mistake.
David I. Bruck: Well, that leads me to my last point, which is that Simmons has been accepted very comfortably by the States. In fact, even before Simmons, there were very few State courts that did not go further than what Simmons held was required by due process, and now there are almost none. Virginia itself no longer has this whole procedure. They now have eliminated parole for everybody and they tell everybody in every case whether future dangerousness is argued or not. Yarborough v. Commonwealth. They have gone beyond Simmons. So, the... the issue of... of what was a small change in the law at the time of Simmons is no longer controversial. It is in repose, and I would suggest that it would be most unwise and most unfortunate for this Court to reawaken what was a small controversy 4, 5, 6 years ago and is now no controversy at all. Thank you.
William H. Rehnquist: Thank you, Mr. Bruck. The case is submitted.


Archibald Cox: Mr. Chief Justice, may it please the Court. Before the luncheon recess, I had traced the history of Section 5 (2) (f) through to the second conference report and had drawn attention to the provisions in the second conference report that recognized the sharp distinction between the Harrington Amendment and the Wadsworth instruction which showed, in our view that the provisions of the conscie -- Conference Report were based upon the instruction and which also spoke of a time limit imposed upon the benefits required to be paid, language which clearly speaks in terms of financial protection and not of a freeze on employment. That same tone was carried through the debate on the con -- second Conference Report in the House where you find Congressman Lea, who is one of the House managers and Chairman of the House Committee, several times speaking of the time limits that had been imposed on the benefits, so that the benefits wouldn't run for more than four years, similar expression, all of which are consistent with our view. And, it seems to me, utterly inconsistent with Mr. Mahoney's view of the statute. The Appellants' do point to certain language in the debate on the second Conference Report which contains references to protection against unemployment and protection against sudden dismissal. In our view, that's an ambiguous phrase. Clearly, it could literally mean protection against dismissal. But, it is also familiar to use the expression "protection against something" as insurance against -- protection against its financial consequence. For example, we often speak of protection against windstorm, hail, fire, not even the insurance companies can keep those acts of God from occurring. And by the protection, we mean protection against the financial consequence. Most point involved, the Washington Agreement of 1936 was known as the Washington Job Protection Agreement, and it granted the kind of financial protection created here, no guarantee of featherbedding, also, it was improved very greatly by this amendment. There are two other passages --
Hugo L. Black: May I ask you, before you leave that. In the brief to which you refer just a few moments ago of the appellants, there appears on page 67 a statement contributed by Senator Wheeler who was, at that time, the Chairman of the Committee of the Senate. Is anything else about Senator Wheeler shows his attitude or as to this change?
Archibald Cox: There's nothing, except that passing reference to the Harrington amendment, which I think is -- well, it seems to me that it simply distinguished the Harrington amendment from the Wadsworth amendment and the Jones amendment, so it is not to be taken to mean literally all the provisions in the exact meaning of the Harrington amendment. That's really about the only thing there is in the Senate. There is no debate on this provision in the Senate. In the House, there were two -- two passages that deal explicitly with this problem, as they're set forth in the Government's brief at pages 40 and 41. Mr. Vorys of Ohio asked about the four-year rule and asked if it would have the effect of delaying a consolidation, and Mr. Lea replied, "No, the rule does not delay consolidation. It means from the effective date of the order of the Commission, the benefits are available for four years. The order determines the date and the protective benefits run four years from that date." Mr. Vorys, "This would be whether or not they are still employed." "Yes." Both the question and the answer obviously assume that the employees would not be still employed. Then, over on the next page, we've set forth a quotation from the closing statement of Congressman Halleck, who was also a conferee, and which seems to me to say in a few words the gist -- the thrust, I should say, of this whole legislative history. He stated that the new provision follows the principle of the so-called Washington Agreement. That was a contract entered into by the carriers with their employees to fix the rights of those employees whose employment terminated upon consolidation. And to summarize what I think is the result of the entire legislative history, from the negotiation of the Washington Agreement, to which only the Trainmen dissent, the whole momentum of the development was in terms of protective benefits, expanding them, enlarging the time, there was a brief fling with the notion of going back to an employment freeze in the original Harrington Agreement but then that, as the contrast in the language of the -- with the Wadsworth instruction showed, was turned back on and everything following is consistent with the notion of financial benefit. Now, this explains, I think, the reason that when the bill was passed, the journals of the Railway Brotherhoods described it in terms of gaining financial benefits. And, this was true with the journals of such an organization as the Locomotive Firemen and Enginemen, which had been one of the organizations that sponsored the exact language of the Wadsworth instruction. Indeed, sent it to all the members of Congress in a letter, along with the five other transportation brotherhoods and they, in their journal, again described it as calling for financial protection. In view of the words of the legislative history, it is hard to believe that there is any doubt about the meaning of the second sentence of Section 5 (2) (f). But, if there were doubt, surely, it would be put to rest by the consistent interpretation for 20 years through active administration of the statute by the Interstate Commerce Commission. That's now -- not only was a contemporaneous interpretation arrived at very shortly after the passage of the legislation. It was an interpretation reported to Congress as early as the annual report for 1941 and it's an interpretation that has been followed consistently since then, and until this case was understood and approved by everyone concerned not simply the Commission with the great bulk of the carriers and also the railway labor organizations, including the Railway Labor Executives, the appellants in this case. The matter first came to the attention of the Committee -- Commission in a consolidation involving the Fort Worth Railroad. At that time, the Railroad took the position that the second sentence of 5 (2) (f), and therefore the whole section, imported a job freeze. The Railway Labor Executives' filed a brief in answer to this contention. We've quoted a large passage, not all of which I will read, on pages 57, 58 and 59 of our brief saying that they didn't agree with this construction. The conclusion they came to is on page 58 of our brief, right about the middle. We conclude that a comprehensive system of dismissal and displacement allowances, plus, reasonable assurance of the continuance of certain minor employee rights and privileges for a period of four years will place the employee in no worse position with respect to his employment than that which he occupied before in this case at the least. So, it's perfectly in a contested case, perfectly clear cut interpretation of the statute. In that particular case, the Commission was not required to rule because he disapproved the merger and therefore, it didn't have to go on to the conditions protecting the employee. Commissioner Joseph B. Eastman, however, very plainly expressed the view that what was contemplated was not featherbedding but a guarantee of financial protection for the four-year period. And then, the Commission, in a subsequent case involving the Texas-New Orleans Railroad on that same year, did consider the problem at length and did rule that financial benefits were what were intended. Now, I would emphasize that this has not been simply in action on the Commission's part, as in the Handcar case that was mentioned earlier during the argument. This was a -- this is a problem where the Commission and the railway labor organizations and the railroads have been actively concerned with this over a considerable period of time. There were 10 cases that are reported dealing with what conditions should be laid down between the passage of the statute and the decision of this Court in the Railway Labor Executives' case about 1950. There were 20 reported cases since then. This isn't simply a problem that was forgotten all about. It wasn't litigated in these precise terms. I don't want to overstate the case. But, what was a worse position was something people were discussing all the time. They were developing proper conditions and laying them down, as was finally done in this case. So that, we think the constant administrative interpretation should be enough to put any possible doubt to rest as to the correctness of the decision by the court below. I agreed to give Mr. McAfee the remainder of my time.
Hugo L. Black: May I ask you one question. You probably said, but I don't-- I didn't get if you did. What was the origin of the clause of such order being in a worse position with respect to employment? Where did that first get into the law?
Archibald Cox: As far this -- the first place it got into the law, if I understand you correctly --
Hugo L. Black: Yes.
Archibald Cox: It doesn't appear prior --
Hugo L. Black: When was it first used, in a contract or a --
Archibald Cox: No.
Hugo L. Black: -- law or --
Archibald Cox: No. I -- I haven't been able to trace this any farther back than a letter which was written -- within a story of the President of the Brotherhood of Railroad Trainmen, relating the history of the Transportation Act of 1940 in this respect. This was in their -- one of their publication. And, in it, he encloses the letter dated May 1, 1940, which was during the House's consideration of the first Conference Report, and there is set forth the exact text of the Wadsworth instruction. I can't trace the language any farther back than that. I just don't find it in -- the phrase "worse position with respect to their compensation" had been used in the Washington Agreement in speaking as a word of art --
Hugo L. Black: Yes.
Archibald Cox: Of displaced employees, but the whole expression, Mr. Justice Black, I've not been able to get back of that letter. And, the formal introduction of the language was in the Wadsworth instruction.
Earl Warren: Mr. McAfee.
Ralph L. Mcafee: Chief Justice Warren, may it please the Court. I, of course, do not plan to cover in the few minutes remaining to the appellees the points which have been so ably presented by the Solicitor General. What I would like to treat of is what will be the practical effects of what the appellants are asking for in this Court. And let me say right away, I'll state my conclusion first. We say it's not possibly the job freeze, but it is a job freeze. And, we go further from that and we say no matter what version of the interpretation we take, and it's buried that that will inevitably result in the merger not being consummated, other than in its technical sense for four years. I would like to, if I can, demonstrate that to you. Let me say, before I get into my analysis of the various versions of what the appellants are asking for here, that they are various versions, they are conflicting versions, but each of them, I say, ends up with a job freeze in what the merger actually not being compensated for four years.
Felix Frankfurter: I must be stupid. I don't understand why four years -- why four years makes a difference --
Ralph L. Mcafee: Well, the second --
Felix Frankfurter: Because whenever -- oh, I see, that's-- it--
Ralph L. Mcafee: That --
Felix Frankfurter: There's a formal merger.
Ralph L. Mcafee: Yes, sir.
Felix Frankfurter: I see.
Ralph L. Mcafee: There's a formal merger as we have now.
Felix Frankfurter: That is the -- just the document that you read.
Ralph L. Mcafee: That's right.
Felix Frankfurter: The document.
Ralph L. Mcafee: Your Honor, we have formally merged these two corporations together.
Felix Frankfurter: They're already, so that the merger is in existence.
Ralph L. Mcafee: That is correct and we have one management, run one-and-a half management running two separate and distinct railroads today. It's a terrible situation. And, we say that would exist for four years under any reasonable interpretation of what the appellants were asking for here.
Felix Frankfurter: Unconstant -- unconstant, if the construction contended for by the appellant should be required to be the law, should be required to be the meaning of the law, it will affect -- it may well-affect the I.C.C. in not allowing you to go through that paper performance.
Ralph L. Mcafee: There's no reason to do so and we wouldn't ask for the right, Your Honor. Except, right now, my client is in the middle. We are -- we are already technically --
Felix Frankfurter: (Voice Overlap) -- this specific situation.
Ralph L. Mcafee: Yes, sir.
Felix Frankfurter: But, the point of view of effectuating the statute is practically -- is in effect.I'm not saying just determines the meaning.
Ralph L. Mcafee: It would --
Felix Frankfurter: But this is a potential veto on mergers, is that right?
Ralph L. Mcafee: There's no question about that. It would effectively defeat the policy of Congress. There's no question about it. Now, if I may demonstrate what I mean, Your Honor. In the brief -- the appellant's brief, the central theme or a central theme in that brief is that the Commission was guilty of error and that it did not prevent adverse effects upon employees. That's the way the -- their questions are posed. They say that the Commission was in error in that it only provided something after the effect. They say that the Commission should prevent the adverse effect. And, on page 37, if Your Honors will look at 30 -- 37 of the appellant's brief, the heading to point four is legislative history compels the conclusion that employees must not be adversely affected in their employment for four years. Now, the -- there's no dispute about what is adversely affected, what that means. And if you take that theory of what is required by the second sentence, we can't deploy these jobs, we can't transfer employees, we can't displace employees, we can't do anything. We can't move their work because that would affect them. So, admittedly, if that construction is adopted by the Court, we can't do anything. Now, here today and then back in his brief, the appellant stated, "Well, we could transfer employees to comparable jobs at comparable pay."
Hugo L. Black: Do you have two precedents now? You said --
Ralph L. Mcafee: We have only one precedent. We really have a one -- they can be displaced, Your Honor. They aren't protected by the New Orleans Commissions [Laughter] and they weren't covered by the stay Your Honors.
Hugo L. Black: Are they employees?
Ralph L. Mcafee: I'm sorry?
Hugo L. Black: Are they employees?
Ralph L. Mcafee: I'm afraid they're not -- they have not yet been included under the protection. I think they should be, Your Honor, especially the lawyers.[Laughter]
Hugo L. Black: I can understand that viewpoint.
Ralph L. Mcafee: But, in any event, here today and in his brief, as a matter of fact, the appellant says you can transfer employees to comparable work and comparable pay. It's been a phrased differently to equivalent work and equivalent pay in some other places. But, just think about that a moment and it -- it fits in with a question which was put by the court below. What would be the effect of that privilege? Let's apply it to a specific situation. We want to move our accounting department, the Lackawanna Accounting Department from Scranton to Cleveland and merge it there with the Erie Accounting Department so we have only the one accounting department. Well, now, under this admission made that we can transfer people, transfer them to comparable jobs, I suppose we could require them to move out there, the people from Scranton, but the important thing is this. Once we get there, we can't merge those operations. We would still have two separate and distinct accounting departments out there, one for the Lackawanna and one for the Erie, because these people don't have any right to take any position in the -- the seniority roster of the Erie. And, one of the basic contention, one of the basic ground rules, which the appellants ever had to adhere to throughout and which they expressed to you when they applied to you for a stay was this, that you may not merge the seniority rosters, you may not merge the workforces. And, if you can't do that, you can't do anything. That is the central theme of this. They won't no bumping and you can't merge seniority rosters without bumping. So, under their contention or their admission that we can transfer employees from one place to another and they are required to go wouldn't help us at all. And, I might say in that connection, here for the first time today in these proceedings had the appellant said that an employee is required to move or else he loses his protection. Now, just -- just think about that a minute because, under the New Orleans conditions, which these people are already entitled to under the Commission's order, they can't be compelled to do that. They can only be compelled to move to a job which their seniority entitles them to, within their seniority district or their seniority point. Other than that, they can say, "I don't want to go. I want to be paid." Well, now, here for the first time today, the appellants have said, under what they propose, the employees don't have that right and that protection. They must move from Scranton to Cleveland. Well, frankly, I accept that and it doesn't affect my conclusion at all. We still can't merge the functions when we get them out to Cleveland, but I do respectfully submit that I doubt if the Brotherhoods, we have to deal with, the local unions. We have over 100 contracts outstanding. Those people are not going to agree with that no matter what that RLEA says, but I -- it doesn't, as I say, affect my conclusion that this proposal of the appellants will just result in no merger for four years because there would be absolutely no point in us moving that operation out to Cleveland if we couldn't merge it out there. No reason at all to go through all that expense. And, further, if -- there's another statement made in the brief that employees are entitled to follow their work. Now, that presents a slightly different problem. If that is really the position that they are entitled to follow their work, when we move our accounting office out to Cleveland, some of the employees would go and obviously, some of them wouldn't. I think an estimate would be, probably 75% would go. But, we'd have a slightly different situation under that concept of what this second sentence means because we would have a separate organization out there but we wouldn't have enough employees to man it and, so, we would have to go out and hire additional people to come in and fill in the Lackawanna Bookkeeping Department out there so it could still operate. It still has a job to do. An attrition has nothing to do with this, Your Honors. It has absolutely nothing to do with it. Once we have those two -- two operations out there, what good would attrition do us? Assume that some key employ -- some employee in the Erie Bookkeeping Department died. We can't go over and -- well, we -- under this theory, we could go over and find a fellow with a comparable job in this Lackawanna Bookkeeping Department and, at least according to these people, apparently, that's attrition. You can move them across. Well, there are two things wrong with that. In the first place, he wouldn't have a right to do that. That would violate the rights of all the people in that other seniority roster. And in the second place, we'd have to hire someone else to do the work over to Lackawanna because we don't have unnecessary, unneeded employees there. So, someone would have to come up from the bottom. There'd be a bumping upwards and -- and we wouldn't lose any jobs whatsoever. Now, those are the proposals made by the Union here, made by the appellants here. And, even if -- if they say, "Oh, well, those are all technicalities and really, we're going to permit you to merge or get these ground rules we were talking about. We're going to permit you to merge when you get out to Cleveland, forget about that." The actual fact is, and they can't dispute it, at the time we merge those two functions, we have more employees than we have jobs. At that point, I don't care about attrition. Maybe attrition will take care of them later but, at that point, we have more employees than we have jobs. Now, what do we do with them? Do they stay back in Scranton? Do we have to keep the building back there for them, keep facilities for them, and we'd come in, punch the timecard? Do we have to worry about the safety of these employees? What do we do with them? Do we have them stay at home? How -- how are they any better off doing that than they would be under the New Orleans conditions? Because, under the New Orleans conditions, they will be paid for four years and, if they want to go look for other work, they could do it. They can take a lump sum settlement and go out and look for other work. I think it'd be a terrible thing to require these fellow employees to come in to do nothing. And, I could think of nothing worse on the morale -- no worse effect on the morale of the fellow employees who are actually working. Now, Mr. Mahoney has said here today that, well, they could share the work. But, if the Court -- Your Honors, if we ever did that, we'd end up with eroded work rules and we'd have more jobs. If you start splitting work, you're really stuck with additional jobs. So, that's no solution either. Now, I would like to comment upon two things. First, the appellants have referred to an agreement between the North of -- Norfolk & Western Railroad and the Virginian and the Brotherhoods as stating what they're really asking for here. Well, that doesn't bear the slightest resemblance to what they are asking for here. In that case, the basic contract provided that the railroad had the right merge the seniority rosters, something we cannot do here. And, secondly, in merging the seniority rosters, they were entitled to just disregard the people on the furlough list. And third, they were entitled to transfer those people anywhere in the system and if they didn't go, they lost all their rights. So, that is completely dissimilar from what they are asking for here. Now, in conclusion, Your Honors, this novel point, this novel interpretation of the second sentence was raised for the time after the record was closed below. No proof was put in whatsoever by us or by the Brotherhood. Nothing was put in the record. This theory was first raised before the hearing examiner. Now, it would be grossly unfair to us, it seems to me, to the I.C.C. and to the examiner to send this back for further proceedings. Our railroad is in bad shape. There is no question about that. It's admitted. The other day, we filed an application for a guarantee on a $15 million loan. We're losing money all the time. This Court granted a stay which is a job freeze, a complete job freeze. We haven't been able to do anything under it. So, I respectfully request that the Court affirm the judgment of the lower court.
Earl Warren: Mr. Mahoney.
William G. Mahoney: Mr. Chief Justice, may it please the Court. The Solicitor General, in his argument, said that the employees were given full protection, full protection by the financial protection which was given under these New Orleans conditions. I respectfully direct your attention to the bottom of page 23 and at the top of page 24 of our brief where we set out at least some of the things that are not protected by the New Orleans conditions. A man's job is abolished. His work is abolished. His employment with the railroad industry today is abolished. That isn't protected. They're not protected from accum -- from the loss of accumulated rights under the Railroad Retirement Act. They don't -- he is not protected from forever being deprived of employment in the railroad industry, an industry in which he may have spent years developing skills which are not readily adaptable to other industries. Now, there was also mentioned made, in response to a question by Mr. Justice Black, of Mr. Wheeler's statement. And, on page 67 of our brief, we quote Mr. Wheeler said -- Senator Wheeler said. Now, this quotation is not in passing, as the Solicitor General said. This is a statement taken in its entirety from the official interpretation which is placed upon the Transportation Act of 1940 by the Senate and its sponsor of the Act, Senator Wheeler. All they say -- all he says about the protection afforded under 5 (2) (f) is that the present law is also amended by the inclusion of the Harrington Amendment to protect the employees.
Felix Frankfurter: Well, if you're going to stick to what Senator Wheeler said, that isn't quite accurate, is it?
William G. Mahoney: I beg your pardon, sir?
Felix Frankfurter: If you're going to rely on the -- if you're going to rely on what Senator Wheeler said, what he said isn't accurate, is it? Unless, you say that the instructions -- that the manager specifically not telling them -- specifically not saying you should hold out for the Harrington amendment, it's not the Harrington amendment.
William G. Mahoney: Well, the -- this provision, "worse position with respect to employment," was consistently referred to by everyone as the Harrington amendment.
Felix Frankfurter: Well, but the all --
William G. Mahoney: Modified language.
Felix Frankfurter: That's -- I agree with that.
William G. Mahoney: Now --
Felix Frankfurter: I could understand that. That simply means we all use shorthand language when we talk.
William G. Mahoney: Now, the -- with regard to the -- this language and the Solicitor General's reference to the conference report, he states that the conference report recognizes a distinction between the original language of the Harrington amendment and the language as found in the Wadsworth motion to recommit. Now, please understand that we do not claim there is no distinction in that language. What we say, though, is what does that language mean? It is distinct. They eliminated displacement. But, what does the language mean? Mr. Harrington told us what it meant, and all those who spoke in support of that language told us exactly what it meant. Now, in commenting upon the original Harrington amendment, the statement of the Commission on this point is set forth in our brief in its entirety, insofar as it referred to the Harrington amendment, and that statement shows quite clearly that the only reference, the only reference which the Commission made and the only objection the Commission had, apparently, to the original language of the Harrington amendment was that it prohibited displacement. And, I refer Your Honors to page 46 of our brief where this is the statement of the Commission on the original Harrington amendment is set forth. "Employees who may be displaced should, in the case of railroad unifications, be protected by some such plan as is embodied in the so-called Washington agreement." The proviso by prohibiting any displacement of employees goes much too far. Now, it is significant that the Interstate Commerce Commission made no comment whatever on the modified language. Displacement had been removed and it -- did not come back and comment upon that. Now, that is the distinction between the original language of the Harrington amendment, and the modified language of that Amendment is found in the Wadsworth motion to recommit. The references to the comments, in response to Mr. Justice Black's question, of Mr. Harrington's interpretation of this modified language, and Mr. Justice Black asked whether anyone challenged these statements. And, the answer was, "No, they did not challenge the statement" and, in truth, there was no challenge to this interpretation. But, when Mr. Lea interpreted this language as meaning that employees must be retained in their employment or be paid compensation for life if they're not retained in employment. Mr. Harrington, on two separate occasions, told Mr. Lea that, "You are wrong. It does not mean what you say it means. This is intended to preserve only the employment and attrition will take care of the job eliminations. This preserves the employment relationship -- the active employment relationship of these men." Now, he was specifically told that twice and those statements appear in our brief at pages 54 and 55. In the first instance, he quotes a letter from President Whitney of the Brotherhood of Railroad Trainmen. He quotes this in confirmation of his own position, Harrington's own position. Your address, as reported in the daily congressional record of May 3rd, suggest that your conception of the labor provision is entirely erroneous. You erroneously refer to the proposed labor protection as a dismissal ways provision. Now, he says in the course of that that they want to preserve the employment of these people. That is the purpose of this entire thing. Now, with regard to the statements regarding the whether -- the contest here, this wasn't a contest, as the Solicitor General says. It's whether employees are going to have any protection at all. They already had protection. The Lowden decision which is discussed in our brief, United States against Lowden, the lower court, the Commission, everybody had given the employees protection in -- in consolidation of facilities. The agitation here was what type of protection should they have and whether it should be protection in their way of preservation of their active employment with the railroad and let attrition take care of the job eliminations or should it be just compensation protection. And, that was the contest and these -- the proponents of the job protection, the employment protection, the preservation, they didn't lose this. They compromised but they didn't lose it and this is the entire battle that was in Congress in the House of Representatives at that time. They had protection and it was the type of protection they were to have, and they ended up with a more flexible type of preservation of active employment than they would have had under the Harrington amendment. The -- as I say, the entire agitation was what type of protection should they have in mergers. They got, as we say, preservation of their active work with the railroad. But, there were no mergers after this statute was enacted, as Congress expected. We had prosperity through the war years. The merger started to come only a few years ago, and the first merger was the Norfolk & Western and, in that case, the railroad agreed to retain all employees in their employment and let attrition take care of these other employee -- of -- excuse me, of the job elimination. The next case that came along was this case, and this issue was raised. That is why it has not been raised heretofore, because it was to protect the employees, the labor force of the industry when that force was -- was threatened by the merger provisions, and it is only threatened now. The statements of Mr. McAfee regarding the effect on employees, most of these things, I assure you, gentlemen, certainly the Commission can take care of. And, his statements as to what will happen to these employees, that they'll have so many employees left over, just do not jive with the evidence which they submitted that only 862 men would be deprived of their employment and not only because they refused to transfer. Also, he made some comment about under the New Orleans' conditions, they don't have to transfer. Well, that's what the Railroad's witness said. Then, the Vice President of Operations got on the stand and said, "Oh yes, they do have to transfer. We're not going to pay these fellows if they're not going to transfer when we've got jobs for them." Mr. McAfee comes back and says, "Well, now, they don't have to transfer under the New Orleans' condition." But, we state quite clearly that, under this, they would have to transfer. So, those 862 men would have jobs to go to. There's no bumping in the seniority involved in this because, again, there are jobs to go to. They don't have to bump anybody.
Charles E. Whittaker: What do you say about these dual accounting systems that would result in Cleveland, in answer to Mr. McAfee?
William G. Mahoney: There would be no dual system, Your Honor. They would merge the accounting system. They would have one accounting system. Now, it may be that there would be extra employees in that one accounting system for a while. An attrition would take -- they would have to wait for attrition to take care of those employees or they would have to, say, split the worker or something of that nature but there would be --
Charles E. Whittaker: What about choosing the seniority of the two roads?
William G. Mahoney: Well, in every merger case or -- that we've had, this last merger case of course and there had been other cases involving small mergers over the last 20 years which were of no significance at all, insofar as effect on the employee -- employment in the industry was concerned, in those cases, they have always merged the seniority rank. If they had agreements and they've merged the rosters, because the Railroad can't go on forever with two sets of agreements when it's only got one set of employees, and they would merge eventually. They will get together and merge that and work that out. And, this employment protection is not in -- directed just to all employees. It is directed to the employees who are working on the Railroad. That's the same thing that, at the time that the merger takes place, it's the same thing as an African-Western agreement applied to the employees who working as of the date of the agreement, June 18, 1958. That's who got this preservation of their employment relationship with the Railroad and that, Your Honors, is what we say would be done here. Insofar as the statements Mr -- I see my time has expired. If there are no more questions, I thank you --
Earl Warren: I was just wondering, Mr. Mahoney, about the -- the attitude of the House Oregon of these various unions is concerned, and I notice the quotation from your own House Oregon entitled Four Years Full Pay. Does the law provide that any employee who has been in the service of a railroad four years or more and loses his job because of a merger or coordination must be paid his full wages for four years? If he has been a railroad employee less than four years, he must be paid his full wages for a period as long as his previous service. No such protection and compensation have ever been guaranteed by law to the employees of any other industry and the railroad workers secured these unprecedented benefits through the Brotherhood of Maintenance of Way Employes in a cooperative movement with the other Standard Railway Labor Organizations. Now, I understand from the briefs that that same attitude has been taken by -- by all the various brotherhoods.
William G. Mahoney: Well, Your Honor, the -- of all the excerpts that the appellees could find, that excerpt and the excerpt from, I think it is, the Conductor's Journals are the only two which really state that this is -- this is pure dismissal pay. This is pay you get when you're dismissed. And, I say they took that position very probably, I don't know why, they took the position very probably because they felt that -- because they have, as a matter of fact, been for nothing but compensation protection. That was what they were after. They felt that was what they got. They may have assumed. I don't know, that the second sentence did nothing else. As a matter of fact, the -- the same thing was said of these same unions in the New Orleans case and the Commission's construction of that statute as meaning -- as having the four years as a ceiling, a maximum, and this Court held that the four years wasn't a maximum. It was a minimum, and it had always been assumed by everybody up until that point, practically, that the four years was a maximum and not a minimum. So that, I suppose, if you get right down to it, your -- where something like this where one of your own clients has said right at the beginning that this is the dismissal way, that he was wrong about his interpretation of that statute as implied to him. As I understand, Abraham Lincoln once said, when that questioned was thrown to him in the afternoon, he said, "I might have been wrong in the morning, but I know I'm right this afternoon." And, that is really the -- the only defense to that state. Thank you, Your Honor.
Earl Warren: Thank you.