Earl Warren: 30, James C. Kirkpatrick, Secretary of State of Missouri, et al. appellants versus Paul W. Preisler, et al. And oh yes, 31 F. V. Heinkel, et al. appellants versus Preisler, et al. Mr. Downey.
Thomas J. Downey: May it please the Court, Mr. Chief Justice. This is an appeal from the judgment and decree of the United States District Court for the Western District of Missouri, which found that the 1967 Missouri Congressional Redistricting Act did not meet the requirements of Article I, Section 2 of the Constitution. Two members of the court concurred in the majority opinion. One member of the court dissented. The Act in question was drafted and became law by the Missouri legislature in 1967 following the invalidation of a prior Congressional Redistricting Act. The Missouri Legislature has called a general assembly meets according to the Missouri Constitution for a period of six months every two years. It convenes in January and its term expires the last day of June. The legislature began considering congressional redistricting in 1967 early in the legislative session, and during the six-month period more than 16 different proposed bills were considered by the legislature. And in the final week of the legislative session, the 1967 Act was passed. It takes a constitutional majority in each House of the Missouri legislature for any law to be passed. There are 163 members of the lower house and it takes 82 votes to pass a bill. There are 34 members in the Senate. It takes 18 votes to pass a bill. The political complexion of the General Assembly in 1967 was 107 Democrats in the lower house and 56 Republicans. In the upper house, it was 23 Democrats and 11 Republicans. The Act which we have under consideration before the Court here today when it was before the lower house, received a negative vote of all 56 Republicans. The Act on original consideration in the Senate received a negative of all 11 Republicans. On final enactment in the Senate, it received the votes of 10 Republicans, one being a negative vote. Now I point this out to the Court because although the Republican Party did not consider this Act to be favorable to the Republican Party as far as a congressional redistricting plan was concerned. The leaders of the Republican Party, the House leader and the Senate leader both testified before the lower court that they considered this Act to be a reasonable legislative compromise. And that had they been in control of the legislature that in all likelihood, the political complexion of the districts would have been different. But the numerical disparities in the districts would probably have been approximately the same. That is the only significance in bringing out this particular factor. Now what was the Act that was enacted? Missouri according to the 1960 census passed a population or had a population of approximately 4,320,000 people. Missouri was entitled to 10 congressmen. Therefore, each congressional district if you had an ideal mathematical district in the state would have a population of approximately 431,000 people. The Act that was passed, there was a population disparity between the largest of the 10 districts and the smallest of the 10 districts of slightly in excess of 25,000 population based upon the 1960 census. Now, what does this mean in terms of relative strength in population or relative affect on voting rights? The largest district in percentage terms was approximately 3% larger than what an ideal district should be. The smallest district was slightly less than 3% below what an ideal district should be. The ratio of the largest district to the smallest district was 1.06. Now that is the factual situation with which we are dealing here this morning. It is appellant's contentions that this congressional redistricting plan and the population variations reflected by this congressional redistricting plan are per se constitutional and meet the requirements of Article I, Section 2 that the House of Representatives shall be chosen by the people. This Court has recognized that --
Earl Warren: May I ask if you -- it's your position that under no circumstances could this deviation be legal, or is it because of the reasons that are assigned for it to the manner in which it is done constitute the illegality?
Thomas J. Downey: It is our contention Mr. Chief Justice that this Act is legal. And that the population variations in the Act are so mindful that they are per se constitutional that the variations are per se permissible under Article I, Section 2 of the Constitution. And that the lower court --
Earl Warren: Regardless of the reasons for the deviations?
Thomas J. Downey: Yes, Your Honor. I -- if you got into larger deviations then I think motivation might be a factor.
Earl Warren: Where do you stop on the deviation?
Thomas J. Downey: And that of course is the big question. Where is the point where this much population variation is okay, and this much is all wrong? As stated by one court a number of years ago, it's easy to tell the difference between noon and midnight. But it is very difficult to tell the difference between dusk and darkness. And I think we have a situation here which on the face of it is in that realm between dusk and darkness. And --
Hugo L. Black: What is largest difference?
Thomas J. Downey: The largest difference Your Honor is slightly more than 25,000.
Hugo L. Black: Out of how many people?
Thomas J. Downey: Out of approximately 304 no -- 4,320,000 population in the State of Missouri.
Hugo L. Black: I'm not talking about the whole state. I'm talking about for the district.
Thomas J. Downey: And the largest district is 445,000 population.
Hugo L. Black: Is that the one in which there's the 25,000 difference?
Thomas J. Downey: And that is 25,000 larger than the smallest district which is 419,000 population. Now there's a factor in that larger district which I want to bring to the attention of the Court. There is transitory nonresident nonvoting population in that larger district. That larger district contains a large military reservation, Fort Leonard Wood, which at the time of the 1960 census had approximately 35,000 soldiers. The district contains the University of Missouri which at the time of the 1960 census had about 15,000 students. It contains other smaller elements of nonresident transitory population. Now when we deal --
William J. Brennan, Jr.: Mr. Downey, I gather the larger of the two was eight is it? Is that district eight --
Thomas J. Downey: The Eighth District, yes, Your Honor.
William J. Brennan, Jr.: And the smallest is district four with 419,000 is that it?
Thomas J. Downey: Yes, Your Honor.
William J. Brennan, Jr.: And they're contiguous districts, aren't they?
Thomas J. Downey: They are contiguous districts.
William J. Brennan, Jr.: Well what explains that difference between contiguous districts?
Thomas J. Downey: We have several factors. One is this factor which I spoke of, of the large number of transitory populations in that Eighth District.
William J. Brennan, Jr.: Well they're not included in the 419,000 are they?
Thomas J. Downey: They are.
William J. Brennan, Jr.: Or rather 445, they are?
Thomas J. Downey: They are included in the 445.
William J. Brennan, Jr.: That is the military population plus the college population?
Thomas J. Downey: The military population and the college population are included in the census counts. They're included in that overall figure. And that is the principle fact.
William J. Brennan, Jr.: And if you -- and if they were to be deducted from the 445, what would the figure then be for eight?
Thomas J. Downey: If they would -- if full weight was given to the population, if they were to be deducted in their entirety there would be in excess of 50,000 population taken out of the Eighth District. Now --
Byron R. White: But that would be assuming that all of those people were nonresident, but not --
Thomas J. Downey: That would be assuming that all over nonresident, yes Your Honor, which of course would be an erroneous subject.
Byron R. White: But if half -- if you took half of them, why it would cut it down by about 25,000?
Thomas J. Downey: That's right, Your Honor.
Potter Stewart: But that would make it exactly equal to the other district.
Thomas J. Downey: That would equalize pretty well. Now we think we have illustrated this pretty well by the election results in the recent election. We have put this in our reply brief and in the recent election, this Fourth District which is the smallest district. We took the vote in the congressional races. There was a contest in the Fourth District which was not much of a contest, just a slight contest. Yet, that district ranks number six in total votes cast in the 1968 election. Yet, in the Eighth District, which had a real hot congressional contest, the -- in vote it ranked fourth in total vote. Now I know that these are absolute indications of population, but there is an indication of this transitory nonvoting population. And we have also included election statistics for that district dating back to 1960 on up through 1968, and we compared the ratio of votes to population into Pulaski County which includes Fort Leonard Wood. With every county which surrounds Fort Leonard Wood. And it's dramatically illustrated that at no time that you have a ratio higher than 10% to total population in the vote of Pulaski County. And in the surrounding counties, it ranges from 40 to 50%. So the fact, the fact of this transitory nonresident population in Pulaski County is very evident from these consistent election returns over the year.
Potter Stewart: I don't understand Mr. Attorney General these ratio figures, the 10% and the 40 to 50%. What are you talking about?
Thomas J. Downey: The ratio, Your Honor is the ratio of the total number of votes in the county cast in a particular election as related to the 1960 census population for that county.
Potter Stewart: You mean -- would you give us in illustrative figures?
Thomas J. Downey: In other words, if the population of the county was a hundred thousand.
Potter Stewart: Yes.
Thomas J. Downey: And there were 10,000 votes cast in a particular election, then 10% of the population voted in that election --
Potter Stewart: Right.
Thomas J. Downey: -- and as I say in Pulaski County where Fort Leonard Wood is located, in every election there has consistently been below 10% of the population voting. And in the surrounding rural areas, the ratio has been between 40 and 50% of the total population of the individual counties.
Potter Stewart: Those counties all making up one district?
Thomas J. Downey: Not necessarily, Your Honor.
Potter Stewart: Not necessarily? Not necessarily, yes.
Thomas J. Downey: We made this comparison simply to illustrate the fact that --
Potter Stewart: That Pulaski County contain a great many transients and nonvoters.
Thomas J. Downey: Yes, Your Honor.
Potter Stewart: Right.
Thomas J. Downey: And after all, we are talking here about voting rights. We're not talking about the rights of a district. The district has no rights. It's the individual voter who has the right. And the question before the Court is whether or not the individual voter's right has been deluded or debased.
Earl Warren: Well then may I ask you this question? Are you arguing to us that the differential in the population of these districts is so de minimis that it's of no consequence under any circumstances? Or are you saying to us that the changes that have been made are justified because of these things that you are talking about now?
Thomas J. Downey: Well, I'm saying Your Honor that you have to look at the entire picture.
Earl Warren: Well I know but you got to take one or the other position or unless you want to take both, I don't know. But I'd like to know whether your percentages are de minimis to the extent that it's of no consequence what the -- what caused the difference. Or are you saying that we justify these differences because of these conditions that you have just outlined to us.
Thomas J. Downey: We say first of all Your Honor, we say first of all that these are de minimis variations that they are of no consequence.
Earl Warren: Under any circumstances?
Thomas J. Downey: Under any circumstances.
Earl Warren: Very well.
Thomas J. Downey: That a ratio of 1.06 to 1 is not a significant debasement of a vote. It's not a significant voted illusion in and of itself. There's no unconstitutional deprivation of a voting right.
Earl Warren: Even though 25,000 people have their votes lessened, and they could've been given an equal vote by having a more contiguous district than you have yourself lined out.
Thomas J. Downey: We contend, Your Honor that that 25,000 is de minimis. And that that it is not a -- it is not an unconstitutional debasement of the vote.And as I say the ratio is 1.06 to 1 and we reach a point some place where as I say between duskand darkness. We -- it's constitutionally permissible. So we say first of all this is constitutionally permissible.
Earl Warren: Well, isn't that then the ultimate question? And is this other -- is it necessary for you to justify what is done?
Thomas J. Downey: Well, I recognize Your Honor that you may not agree with that argument.
Earl Warren: Yes, alright.
Thomas J. Downey: You may come to conclusion that this is an unconstitutional debasement of a vote.
Earl Warren: Yes, yes.
Thomas J. Downey: And in recognition of that, I say that this 25,000 difference is justified in the context of this particular case.
Earl Warren: Yes, well that's what I wanted to get clear in my mind. You argued it both ways. You say that it's de minimis and if we don't agree with you, then the reasons you have assigned for the differential between these districts are sufficient to justify this Act?
Thomas J. Downey: That is my position, Your Honor.
Abe Fortas: In what congressional district is Pulaski County?
Thomas J. Downey: Pulaski County is in the Eighth District, Your Honor, the largest district.
Abe Fortas: But where you have an underage don't you, not an overage?
Thomas J. Downey: We have -- it is the largest district. The Eighth District is 25,000 plus more than the smallest district which is the Fourth District. The Eighth District has a population of 445,523. The fourth is the smallest with 419,721.
Earl Warren: Well may I ask this? Assuming that we do not agree with you that the figures are -- that the differential is de minimis. What justification is there for having a district of this shape and size, rather than to have a contiguous district that would equalize it? I'm looking at that map now, number six, and it looks to me like that's a most unusual kind of district in one that would normally be called a gerrymandered district?
Thomas J. Downey: The Eighth District of course --
Earl Warren: Yes, yes.
Thomas J. Downey: -- Your Honor. Well as I -- I've already pointed out to the Court. We have Pulaski County here with this 46,000 population.
Earl Warren: Yes.
Thomas J. Downey: And what would actually about 10 or 11,000 of that population being resident voting population. Now --
Earl Warren: Well, why do you have to go from one border of your state way over to the middle of the state in that circuitous way in order to carve out a district?
Thomas J. Downey: Well my only reply to that question, Your Honor, is that this is the legislature at work.
Earl Warren: Well --
Thomas J. Downey: Trying to agree upon districts will come within reasonable population variations and districts that will meet the requirements of the Constitution.
Earl Warren: Now for what reason? For what reasons you say they're dealing with the legislature? What reason does the legislature have for making that district in that irregular and noncontiguous shape?
Thomas J. Downey: Well, I think Your Honor that it is contiguous. It may not be as compact as it could.
Earl Warren: I beg your pardon?
Thomas J. Downey: I believe that --
Earl Warren: If you configure the microphone, please.
Thomas J. Downey: Yes, Your Honor I'm sorry. I believe that the district is contiguous. It may not be as compact as it could be. But if you will examine the remaining districts, the remaining districts do have a reasonable compactness about them.
Earl Warren: Yes. Why shouldn't this one have it?
Thomas J. Downey: And you simply -- when you get into this business of drawing districts, you get into what has been called redistricting checkers and you --
Earl Warren: What is that? Redistricting what?
Thomas J. Downey: Redistricting checkers or dominoes as it is been referred to. And --
Earl Warren: Who refers to it in that sense? Judicially?
Thomas J. Downey: Yes, I believe the Judge of the Eighth Circuit who wrote the dissenting opinion referred to it in that matter.
Earl Warren: Not in a favorable way though.
Thomas J. Downey: Not in a favorable way, no Your Honor. And the districts other than the Eighth are reasonably compact. And --
Earl Warren: Just a question I'm trying to get at. Why isn't this one? They must have some reason for making this -- the shape it is and having it cover such a great part of your state?
Thomas J. Downey: I think the reason, Your Honor, I think the explanation is that this is the district which takes in the central part of the state. The other districts do surround it. There was a county taken from the district here, and put there, and there was a lot of trading went on with this central district.
Earl Warren: A lot of what?
Thomas J. Downey: A trading of counties. According to county in and the taking of a county away, and --
Earl Warren: Well isn't that what -- isn't that what Reynolds versus Sims tried to avoid? Trading of territory in order to bring about unreasonable distribution of the districts?
Thomas J. Downey: I don't recall that factor in Reynolds, Your Honor. I know -- I recall that Reynolds does indicate that it may be permissible to maintain the integrity of a county. But I don't recall that factor in Reynolds.
Earl Warren: Could you have maintained the integrity of counties here by a change of this district that would've brought them more into conformity with equality?
Thomas J. Downey: I think, Your Honor, had we done so we would've made this district look worse. We would've made it less compact than it is. For instance, had we taken this county here and put it in the Tenth District, you would have more of a handle down here than you have now. The same if you have taken Howard County and put it up in this district, you would've had to handle on the sixth district.
William J. Brennan, Jr.: Well suppose you would take one of those two counties along the line between the fourth and the eighth, as I look back here. Are those two counties in the eighth along the line of the fourth? No, no that's right, right there.
Thomas J. Downey: Saline County, Your Honor.
William J. Brennan, Jr.: No in the eighth.
Thomas J. Downey: Oh in the eighth, Howard County.
William J. Brennan, Jr.: And below that is what?
Thomas J. Downey: And that's Cooper County.
William J. Brennan, Jr.: And what's the population of those two joint?
Thomas J. Downey: Howard 10,859.
William J. Brennan, Jr.: Next.
Thomas J. Downey: Cooper 15,448.
William J. Brennan, Jr.: Alright, right there that's 25,000 isn't it?
Thomas J. Downey: Right, yes.
William J. Brennan, Jr.: Suppose you put those two counties on the fourth?
Thomas J. Downey: That you put those two counties in the Fourth District --
William J. Brennan, Jr.: Would that equalize it?
Thomas J. Downey: You would have equalized the population. You would've still had all of these transitory populations down in Pulaski Valley.
William J. Brennan, Jr.: If you done that, the eighth wouldn't have looked any worse that does now.
Thomas J. Downey: Look pretty poor, Your Honor, in my opinion.
William J. Brennan, Jr.: Maybe it wouldn't --
Thomas J. Downey: A matter of fact it's pretty bad.
William J. Brennan, Jr.: -- be pretty poor now.
Thomas J. Downey: It doesn't look good, I recognize that. It doesn't look good. In my judgment it would look worse. Now --
Earl Warren: But it would be equal.
Thomas J. Downey: It would've equalized pure raw census statistics figures. Yes Your Honor, that's true. It would've done so. But we would've still had all of this transitory military population in Pulaski County and we would've ignored the fact the Fourth District makes them the growing area of Kansas City, an area of growing population which is growing tremendously since 1960. And we're talking about 1967 were building districts seven years later. So we would've completely ignored those factors.
Earl Warren: Do you have any other military installations in Missouri and other parts of the state than this eighth?
Thomas J. Downey: We have some other military installations but they are not of the size and significance of Fort Leonard Wood. There's --
Earl Warren: Have you taken consideration, in the consideration those installations in this reapportionment?
Thomas J. Downey: They were not taken into consideration Your Honor, because they were not of the size and significance of this Board. This is the principal military installation we have in Missouri. We have some air bases but they do not have near the numbers of personnel that we have in Fort Leonard Wood.
Abe Fortas: Well, Mr. Attorney General, the lower court was disturbed and I confess that I'm somewhat disturbed by the current fact that both the legislative committee and the legislature itself proceeded to draft, consider and enact a bill based upon, what shall I say, incorrect. I don't want to use a harsher word. Think of census figures, figures that did not truly represent the census figures for varies of these districts. And the variations between the actual census figures of 1960 and the figures that were used by the committee and represented to the legislature to be the population figures and those census figures, that difference appears to be quite material. What is the explanation of that if you can tell us briefly, because offhand it appears that the result might have been quite different in theory in a way? The result that the legislature reached might have been quite different if they had been working on the actual census figures.
Thomas J. Downey: Mr. Justice Fortas, many years ago Chief Justice Hughes in speaking before the American Bar Association made the remark that in this world of imperfections the faults of human clay are always manifested.
Abe Fortas: No, that doesn't quite work here. Because what you're talking about is some specific figures gotten from the United States census as of the 1960 census. And there's no -- there's -- the possibility of serious man engaged in the serious task making this kind of a material error with respect to a fact so easily ascertained and so objective is really disturbing.
Thomas J. Downey: Well, Your Honor the error about which we are speaking is a difference between the plan we have is a 25,000 population difference between the smallest and the largest district. What the legislature thought they had before it was a 17,000 difference or a difference of 8,000 population.
Abe Fortas: Well just take it very simply. Take the Eighth Congressional District which we've been talking about which includes Pulaski County.
Thomas J. Downey: Yes, Your Honor.
Abe Fortas: If the -- if the -- on the basis of the correct figures, the overage there is what, 3.13% overage over the ideal.
Thomas J. Downey: Yes, Your Honor.
Abe Fortas: And the overage over the smallest district is in the neighborhood of 6%, is that right?
Thomas J. Downey: Approximately 6% larger than the smallest district.
Abe Fortas: Now if you take the figures that the legislature used, the incorrect figures that the legislature used, the percent of variation in district eight, Pulaski County etcetera, over the idea would've been only 1.85, isn't that what your --
Thomas J. Downey: That's right, Your Honor.
Abe Fortas: -- submission here says?
Thomas J. Downey: Just slightly less than 2%.
Abe Fortas: And if you -- and I don't have -- now that's 1.85 over the ideal, isn't it?
Thomas J. Downey: Yes, Your Honor.
Abe Fortas: And the difference between the largest which is district eight and the smallest would've been what?
Thomas J. Downey: The smallest district under what the legislature thought --
Abe Fortas: What been around say 3% to 3.5%?
Thomas J. Downey: -- was the Tenth District with an under percentage of --
Abe Fortas: 1.88.
Thomas J. Downey: --1.88%.
Abe Fortas: So that what you're doing is comparing a 6% in approximate which is just under 6% variation in terms of the true facts as against a somewhat around of 3 to 4% variation?
Thomas J. Downey: Just under 4%.
Abe Fortas: Just under 4% variation which is what the legislature thought it was doing.
Thomas J. Downey: Yes, Your Honor.
Abe Fortas: Now, taking into account the fact which I am for one accept that we should give a great deal of weight to what the legislature does, you have the curiosity here which seemed to have impressed the lower court and I must say it bothers me that the legislature proceeded on the basis of, what shall I say again using a colorless word, incorrect figures. And those figures would come out only after the court proceedings were under way, isn't that right?
Thomas J. Downey: That's right, Your Honor. I can't account for the errors that were made except to say that it appears that they came in to the legislative deliberations in the closing days of the session when the final compromise bill was being hammered out. And there's nothing to indicate that they were anything other than human errors that crept at that time. The basic census data was being utilized. And I can't account for the miscalculations. Now there's one --
Abe Fortas: Is it a matter of calculation or don't you get from the census county by county figures?
Thomas J. Downey: Yes, Your Honor, you do. And there --
Abe Fortas: So it's not a matter of having to make a recalculation in which errors of allocation or what not might occur, because they get their figures from the census county by county and then it's a matter of putting them together, is that right?
Thomas J. Downey: Well there's a very glaring error, Your Honor, right up here in the Sixth District which contains whole counties. There's an even 3,000 population error up there. And it's very obvious that somebody hit the wrong key on an adding machine when they were doing their calculating. Somebody hit a 3 instead of a 5, or a 5 instead of 3 because it's just right on the nose. It's 3,000 and it isn't 3,001 or anything else. And I only -- my only explanation is that this was human error that crept into the calculations in the closing days of the legislature.
Abe Fortas: The lower court seems to have been so impressed by it and you would be really asked to do is to give the legislature the usual presumption of the correctness of its result. Despite the fact here that legislature was proceeding on obviously now admittedly incorrect data. It's a strange situation. I think you'd go that far with me, wouldn't you?
Thomas J. Downey: Well I don't agree that the situation is as serious as the lower court has made it out to be. I think that the difference between 4% and 6% is a pretty slight difference. And when we look at what has happened in other states where errors have crept in, when we look at the census data itself what the Census Bureau admits is an error by 3%. So if you have a 2% error in your calculations from data that is admittedly 3% in error, I don't think that that is a serious sin. When we look at what the Florida Court --
Abe Fortas: It makes it five. Three and two make five don't --
Thomas J. Downey: Pardon me, Your Honor?
Abe Fortas: Three and two make five.
Thomas J. Downey: Yes, Your Honor, I realize that.
Potter Stewart: Or it might make it one, three minus two make one.
Thomas J. Downey: And it could as well make it one. And when we look at what the Florida Court did when they were drawing districts down there and the mistake they made was far more serious than this. They thought they had 8,000 population difference between largest and smallest. But it was 48,000.
Potter Stewart: Where was that?
Thomas J. Downey: In the State of Florida in Gong versus Kirk.
Potter Stewart: Oh, yes.
Thomas J. Downey: And that was brought to the attention of this Court and this Court found nothing wrong with it. So I think that the lower court has dwelt too much upon this matter of error in calculations.
Hugo L. Black: Is there any furious argument made here supported by strong areas part of those either who support or reject the reapportionment that there's really difference in order to change the results of the district of having a Republican congressman instead of a Democratic congressman, or a Democratic congressman instead of a Republican congressman?
Thomas J. Downey: There's nothing in the record Your Honor to indicate this political factor. Of course it was there.
Hugo L. Black: Is that the argument it's made. Do they make an argument either side?
Thomas J. Downey: No, Your Honor.
Hugo L. Black: That argument is not presented to us?
Thomas J. Downey: That is not presented to the Court.
Hugo L. Black: So we can take the case as though there's no question raised in it which requires our attention, might involve a deliberate effort to shift parties in congressional districts.
Thomas J. Downey: That's right, Your Honor. As I say naturally at any redistricting plan, you have those Democratic-Republican factors involved. They were involved in this plan. And the Republicans generally opposed this plan, but once it was adopted they appeared as witnesses before the lower court.
Hugo L. Black: You mean the said Republicans?
Thomas J. Downey: The leaders of the Republican Party that --
Hugo L. Black: Who's the leader?
Thomas J. Downey: The minority leader of the House and the minority leader of the Senate.
Earl Warren: But you did tell us the legislature itself, it went strictly on party lines?
Thomas J. Downey: Yes, Your Honor. I might add this aside that there was one district created which was absolutely guaranteed to put a Republican in Congress.
Earl Warren: Was what?
Thomas J. Downey: Was absolutely guaranteed to put a Republican in Congress and --
Hugo L. Black: Well which one is that?
Thomas J. Downey: That was the Second District to the City of St. Louis that -- or the County of St. Louis that had been strongly Republican for years and years and years. And it was confirmed as a Republican District.
Hugo L. Black: That didn't change?
Thomas J. Downey: But the people didn't follow the legislature in doing that. They elected a Democrat last November from that heavily Republican district. And so --
Hugo L. Black: That showed this doesn't always work.
Thomas J. Downey: It doesn't always work. No, Your Honor. And there were also race factors involved in this plan. There was a deliberate attempt to create a district that would elect Missouri's first Negro congressman. And that was successful, that Missouri did elect its first Negro congressman. So -- but those --
Byron R. White: Is there record about that? Do you say that the record sustains that or not?
Thomas J. Downey: The census data would sustain it would be the only thing Your Honor that's --
Byron R. White: But there was no testimony to legislate --
Thomas J. Downey: There was no testimony on that point, no.
Byron R. White: -- attempted to do this?
Thomas J. Downey: No.
Byron R. White: Or there wasn't any testimony about the other matter you referred to?
Thomas J. Downey: That's right, no Your Honor.
Byron R. White: Is there any testimony that there was some effort in forming these districts to permit incumbents to run from their home district?
Thomas J. Downey: There's no testimony to that effect. It could be implied from the composition of the districts.
Byron R. White: The lower court thought that was a consideration, didn't it?
Thomas J. Downey: That's right. There was no testimony but as I say it could be implied from the composition of the districts, because the districts were drawn where an incumbent resides in each of the existing districts.
Byron R. White: Well now in making the statement you made about the so-called sure Republican district and about the so-called Negro district are you representing that these are actually the facts that really did influence the legislature?
Thomas J. Downey: These were very definitely facts that influenced the legislature Your Honor.
Hugo L. Black: Were there any findings to that effect?
Thomas J. Downey: There are not. We -- there're no record was made on that. Frankly, we didn't think it was relevant to the question of --
Hugo L. Black: Or might it not be relevant if they deliberately made the district that it was not a convenience in order to elect white men or colored men either one might have not make a difference.
Thomas J. Downey: It would be relevant only in so far as to population disparity of a district would be involved, Your Honor. That would be my opinion.
Earl Warren: Well this shape, form and size of eighth had been made for an incumbent congressman?
Thomas J. Downey: Well there again, there's nothing in the record in regard to that. But there was great deal of -- there was some controversy that crept into that picture. The incumbent congressman in the Eighth District lives in Texas County which is the southern most county.
Hugo L. Black: What county?
Thomas J. Downey: Texas County, Your Honor. That's this county right here.
Hugo L. Black: What's the county's city?
Thomas J. Downey: Houston. And he's a very popular congressman and the controversy was really this. Some of your Democratic political leaders over here and what we call the Bootheel of Missouri why would they to put him in their district, because their congressman was retiring and they wanted him. And these people in the central part of the state says “no, we want to keep him here.” So there was another factor that was involved in drafting these districts.
Hugo L. Black: Is that the -- in that district?
Thomas J. Downey: No, Your Honor. -- is Howell County which is just to the south of Texas County. Well, I've eaten into Mr. Collins's time here considerably, Your Honor. And I know that he wants to address the Court, so thank you.
Earl Warren: Mr. Collins.
David Collins: May it please the Court. The disparity between the population of the Eighth District and ideal is not 25,000, it's 13,542. So the difference, I don't think this 25,000 figure should be misunderstood. The Eighth District is overpopulated by only 13,542 people. And as the statistics in the Attorney General's brief comparing the voters in proportion to the population show the fact that Fort Leonard Wood with approximately 40,000 soldiers and the University of Missouri with approximately 17,000 people at Columbia, about 5,000 at Rolla plus the political workers at Jefferson City most of whom vote back home in their home counties would more than offset that. So that if an appropriate adjustment were made for the transient population in the Eighth District, actually the Eighth District in terms of voters is under populated. Now in the Nebraska case, Eighth Circuit Judge Johnson made a very interesting and I think pertinent comment about analyzing population figures in reapportionment cases to demonstrate the extent to which votes are diluted. And he pointed out that if you add up the actual population of the overpopulated districts and compare that to what the population should be, if each of those districts were ideal, you get the difference between those figures is the number of people that those five districts have in the aggregate that they should not have. Now in Missouri, we have five overpopulated and five under populated districts, if you add up the population of the five overpopulated districts, you get 2,194,000 some odd people. If all five of those districts were pertinent, you would have 2,159,000. So that what you really have is 34,680 too many people in a total of five districts. Then as Judge Johnson pointed out, one congressman is supposed to represent ideally 431,000 people. So if one congressman equals 431,000 people, the 34,000 excess in the five districts equals 8% of one congressman. So that you have in the aggregate in these five districts all the people. All the people in the five districts put together have been cheated out of 8% of one congressman. And it follows of course that in any one district their vote -- the people of the district as a whole, their vote has been diluted by 1/5 of 8% of one congressman.
Abe Fortas: But if you carry that kind of analysis to the state as a whole, nobody's been that is both diluted at all.
David Collins: Well that would almost be correct. It would be very minimal. But it does bring in to focus, Your Honor, that when you have the people of half of the districts of the state are only overpopulated by 34,000 people and it takes 431,000 to elect one congressman or the people to represent congressman. It points out how minimal the deviation really is.
Earl Warren: Would you mind pointing out to us the reasons that you rely on in this case for the legislature in departing from equality? The legal reasons.
David Collins: Alright sir, I will. First let me say, Your Honor, before I answer your question, I agree with what Mr. Downey has said. I contend that the deviations are so small that the reasons make no difference.
Earl Warren: Yes, I understand that.
David Collins: Right, now the reasons are these. This is a legislative function. This Court has repeatedly said that, it's a legislative function. To -- the legislature can only act by the passage of bills and you have to have the votes to pass the bills. It takes 82 votes in the Missouri House to pass. There's 161 people so you have to have 82 votes to pass. This bill got 82 votes.
Earl Warren: And therefore, you rely on it regardless of equality?
David Collins: That's right Your Honor. I don't think that you can ever have an absent court decree. I don't think you can ever have the legislature passing a bill that is any closer than a deviation or the worst deviation where you got over 4,300,000 or 13,000.
Earl Warren: That's another question whether it could or not. The question in my mind is whether you are trying to justify this Act on the grounds that it's the only bill that the legislature would pass?
David Collins: Well, I think that's obviously true from the record, Your Honor absent compulsion from this Court or some other federal court, that's true.
Earl Warren: You mean absent following the rules that have been laid down by this Court for reapportionment?
David Collins: No, I think the rules have been followed. This Court has never said that they had to be perfect. This Court has said they only have to be as close as is practicable.
Earl Warren: Yes.
David Collins: And it --
Earl Warren: But it has said that it could not be unequal for certain reasons, hasn't it?
David Collins: That's right and there's absolutely no indication in this record that there's been any reason quite was unequal.
Earl Warren: But you're telling us that the reason that you can rely on that is because it's a legislative function and that's the only bill, they could pass therefore it is all right.
David Collins: I don't think any legislature whether the map looks like this or whether it looks otherwise that you can hammer out and get the votes to pass a bill that's closer than 3% ideal. I think 3% is about as close as you can expect in the legislative process.
Earl Warren: Well if it was 6%?
David Collins: Well if it were 6%, in my judgment it would still be good.
Earl Warren: 12?
David Collins: I think the cutoff point ought to be in the area of ten. I think when you get to 8, 9 of 10% then you should look extremely close at the motives. I'm not saying that one of those couldn't possibly be justified. But I think that is the area, the critical area because of what Mr. Downey said and Mr. Justice Fortas commented about the Census Bureau acknowledges a possibility of the 3% error in their figures. Well the Eighth District here, if you ignore the transient population, the fact is it's probably dead perfect or very close to it. But if you ignore the transient population which I think is a legitimate consideration, and which the undisputed evidence in this case was they did consider that. And there was absolutely no evidence to the contrary. But if you ignore that, the 3% error could be the other way. It could be down to zero. Now, it's likewise true as Mr. Justice Fortas pointed out, it could be the wrong way and make it up to 6%. But I don't see how -- you see what the Census Bureau acknowledges a possibility of 3% error in their figures which they do, then suppose that the figures were accurate and it was dead perfect. You still might have a 3% error there.
Byron R. White: Would that be -- even then it would only be with respect to 1960.
David Collins: That's true.
Byron R. White: Then you have enormous changes I suppose in certain places in Missouri since 1960?
David Collins: That's true, that's true.
William J. Brennan, Jr.: I think Mr. Downey suggested, Mr. Collins that there are who -- wherein they vote going on population changes. Are they both districts of the increase, I take it there's an increase of population in that kind is it?
David Collins: In the fourth that's true. I don't know that that's true in the eighth. I'm not aware of any increase in the eighth.
William J. Brennan, Jr.: What you are suggesting was because of Kansas City in the fourth and its environs?
David Collins: That's right.
William J. Brennan, Jr.: There is a trend that's possible in any event in the way of increase there is if any in eight --
David Collins: Oh I'm sure that's true. Eighth is the poll that's strictly rural counties. And the only thing that would affect the eighth is the military population or the student population of the University of Missouri which is located in Columbia.
William J. Brennan, Jr.: Now that is 15, 17,000 approximate --
David Collins: Well it was about seven -- 15 to 17 then. It's over 20,000 now at the Columbia Campus and then the school of minds, as we call it down at Rolla, Missouri which is also in the Eighth District has about 5,000 people. And then the -- students that is, and then the Lincoln University at Jefferson City, I don't know what the enrollment is, but about 3,000 people there. And then you have the State Capitol at Jefferson City which has a large number of people holding political jobs down there who vote back home. So when you consider all of those factors taken together as Mr. Justice White suggested earlier, you probably shouldn't give 100% which hasn't been done. But if you gave 100%, it may have about 50,000 population difference. But all you've got to do to bring the eighth down to perfect is 13,542 people, and there's undoubtedly of that matter. And certainly it wouldn't be unreasonable upon the part of the legislature to so assume and the testimony was that they did consider this transient population in the passage of this Bill.
Earl Warren: I understood they take it under consideration in the City of St. Louis, for instance, the transitory population in a great city like that. Did the legislature consider that?
David Collins: There's no evidence in the record Your Honor that they did.
Earl Warren: You don't think there is any transitory population in a great city like St. Louis?
David Collins: Well, talking about what I think and what's in the record are two different things. There's nothing in the record that the legislature considered the chipped in the population of St. Louis City. There has been.
Earl Warren: This taking is after the fact too, isn't it? This was all -- all came up after the fact not in the legislature?
David Collins: The testimony did, yes sir.
Earl Warren: Yes but in the legislature, was it argued that there was a university in the Eighth District and there was a --
David Collins: Yes, sir, that was the testimony.
Earl Warren: Well --
David Collins: The testimony by these legislative --
Earl Warren: -- well the testimony was that what they intended. But is there any legislative record that we have that shows that?
David Collins: Not other than the testimony, no sir. There are no records kept in the Missouri legislature of the argument -- of the debates or the proceedings there. So there is not source for this other than just what you read in the newspaper or what you pick up by rumor. But there's no evidence for example, Mr. Justice Black, there's no evidence in this record concerning any consideration at all about the election or retention in office of the congressman. Nor is there any about a Republican versus a Democrat or vice versa. Nor is there any evidence in this record concerning that race or the election of a Negro congressman was in anyway considered. That's not in this record at all.
Hugo L. Black: Could the Census Bureau indicate why it conceded a possible error as much as 3%?
David Collins: I don't know the answer to that Your Honor. I'm not that familiar with those census data.
Hugo L. Black: Was there a witness from the Census Bureau there?
David Collins: No, sir.
Hugo L. Black: How did this get into the record?
David Collins: Simply a statement in the Attorney General's brief that I think this is a part of the documentary part of the -- those booklets. It's in the stipulation of Mr. Wood's statements.
Hugo L. Black: What is the stipulation? Where is that?
David Collins: I don't know the page number of the appendixes, Your Honor. I'd like to point out a couple of --
Hugo L. Black: If he knows, would you get him to tell you later so you can let us know?
David Collins: Yes, sir. We'll do that. I'd like to point out Your Honors that the Mississippi case was affirmed by this Court. The population deviations in the Mississippi case are greater than they are in Missouri. So that if this Court affirms the lower court, we will not be permitted to do in Missouri what they have been permitted to do and are doing in Mississippi. Now, I say that that would be --
Earl Warren: But did the courts agree that the difference is in the Mississippi were for the same reasons that you rely upon here?
David Collins: Well, there's no opinion of this Court in the Mississippi case.
Earl Warren: No, the courts I said.
David Collins: I'm sorry I don't understand you.
Earl Warren: Was there an opinion of any kind in that case?
David Collins: In the lower court
Earl Warren: Yes, well I asked in whatever court it was. Did they do it for the same reasons that you assert here that that's the only kind of a bill that they could get through the legislature?
David Collins: No, I don't assert that Your Honor. I have a --
Earl Warren: I thought you did, and I thought also that your colleague said that.
David Collins: Well, I don't say this is the only kind of a bill that you can get through the legislature. I simply point out that a lot of bills were introduced. There were a lot of trials made. There were reports out of committees. There were amendments, and finally when they got this bill hammered out, it passed the House by simply one vote. Now, you get in, in my judgment, you get into the proposition of whether the narrow where you make the confines within which the legislature can act and the more restrictive the rules announced by the judiciary become, and the less freedom that the legislators have, the less significant it becomes that we are entitled to elect our legislators on a one man, one vote basis. In other words, what difference does it make that my vote is equal to Mr. Achtenberg's vote in deciding who gets to go down in Jefferson City? If when he gets down there, the courts are going to tell him that he can only act within a prescribed area. Now I don't suggest that you shouldn't enforce the constitutional mandates of courts. But I do point out that when you get it down to a slice of this thin so to speak, you get to the point where it's almost a matter of announcing the results of this computer, which is what Judge Oliver suggested in the pretrial conference, re-asked the question in Mr. Downey in the pretrial conference “why didn't the legislature consult the computer complex at the University of Missouri?”
Speaker: Is that Mississippi case to which you refer cited in your brief?
David Collins: Yes, sir.
Speaker: Including the lower court opinions?
David Collins: The lower court opinion has never been published.
Speaker: But --
David Collins: It has been. I beg your pardon? Yes, sir, it is.
Speaker: In your brief that is.
David Collins: No this is -- I cite the case but my brief doesn't have the citation.
Speaker: Right.
David Collins: It's -- the citation is on page 43 of the appellant's brief.
Hugo L. Black: Of the appellant?
David Collins: Of the appellant, the Governor and the Secretary of State of Missouri. Mr. Justice Black, I now have the answer to your question about this 3% error in the population figures. It's -- it appears on -- is referred to on page 16 of the Attorney General -- of the appellant's reply brief.
Hugo L. Black: Reply brief.
David Collins: Of the reply brief of the Attorney General.
Hugo L. Black: What is the date of that brief? I don't believe I have it.
Potter Stewart: December 2nd.
David Collins: And it appears on page 53 of the appendix is the stipulation referred to there. Page 53 of the appendix and page 16 of the appellant's reply brief, and --
Abe Fortas: 53 of the appendix?
David Collins: Right.
Abe Fortas: Does your position go so far as to say that if the state laid up a noncontiguous congressional district. That is to say the selected counties at various parts of the state maybe not contiguous, that that would be constitutionally unobjectionable provided that the figures worked out alright?
David Collins: No, Your Honor, I don't think it would be. I think that compactness and contiguity is a significant factor. Population is by far the more important. But I don't think they would be at liberty just as slight counties from very --
Abe Fortas: But then your point must be that for example the congressional district number eight here does not present such a problem that is to say that the factor --
David Collins: That's true.
Abe Fortas: -- is not -- doesn't appear to be compact does raise problem. I note that Jefferson County and Texas County were both put in to the district with the majority of the other counties to form district eight, isn't that right?
David Collins: Yes sir. As I understand it they've been in that same congressional district for good many years.
Abe Fortas: No, I don't -- has Texas County been in the -- and has Jefferson County been in the same congressional district as Osage and Cole and Miller and so on there?
David Collins: I think they have.
Abe Fortas: Perhaps I've been --
David Collins: I may be in error, Your Honor but that's my thought of the -- that they have.
Abe Fortas: I may have misread some of the maps there.
David Collins: Well I think there is to be an error, but I think they've been in that same district for good many years.
Abe Fortas: Oh, I see.
David Collins: Particularly, Texas County. I don't know how long Jefferson County has been.
Abe Fortas: But in any event, you would agree then and I think this may be a modification. It's a modification what I understood you to say earlier maybe that compactness -- contiguity and compactness are permissible factors to take into account in connection with the constitutional problem facing this Court?
David Collins: Well, yes sir. I think they are. I think that they are not only permissible but I think that to at least some extent they are required, yes sir. I might point out that there seems to be a difference of viewpoint which has Judge Mathis says in his dissenting opinion is extremely significant in who has the burden of proof in this case? In fact one of subdivisions to the appellees' brief relates to that matter. Their position being that this deviation is per se bad. And they arrive at that conclusion by stating that it is a fact that this percentage of deviation is not as near as is practicable. And thereby, they assume the very thing that's in issue, and having assumed that it is not as nearly equal as is practicable they point to the language of a couple of opinions and say that “we have the burden of proof.” Now we dispute that. We say that per se, a 3% deviation from perfect is as near as equal as is practicable. Practicable being used to evaluate the legislative process, and consequently the burden of proof of demonstrating that it is unconstitutional is where that burden always is and that's on the people asserting unconstitutionality.
Earl Warren: Very well.
David Collins: Thank you.
Earl Warren: Mr. Achtenberg.
Irving Achtenberg: Mr. Chief Justice, and may it please the Court. At the outset, the appellees wish to make it clear that we do not agree with the issue as first stated in the appellant's jurisdictional statement that what the trial court held was that the legislature's plan was bad, purely and simply because a better plan could have been or was proposed. We don't think that that is the rule. We don't think the trial court held that and we're not asking this Court to so hold. What we think the trial court said was very simply and in accordance with the prior decisions of this Court that upon the evidence before it, the legislature had not developed and presented a plan which approached practicable equality of population. And further that that was demonstrated very simply, although in many other ways but very simply by the fact that there were whole counties which could've been transferred into the out of balance districts and have improved the balance of those districts. And that furthermore, the legislature in its proceedings and before the Court did not give constitutionally justifiable and rational grounds for their exceeding the reasonable variation.
Hugo L. Black: What do you say is the test? What do you argue is the test for the judges to decide?
Irving Achtenberg: We think --
Hugo L. Black: The crucial?
Irving Achtenberg: -- the test in each case must be that the Court must examine the evidence before it. Determine if there is a plan which is reasonable which approximates practicable equality of population in view of the facts in that particular state. And if it does not do so then the Court must decide if there are justifiable, constitutionally justifiable reasons for exceeding that boundary. We're saying very specifically that this Court should not, and we ask it not, to set any percentage to accept any doctrine of de minimis or to say that the situation in one state may be applied on a bare percentage formula to the situation in any other state.
Hugo L. Black: What do you suggest the legislature could've done? Could have vote about a more near approach to you.
Irving Achtenberg: If the Court please I will -- if Mr. Justice Black please, I will refer to the map which is simply an enlargement of the map appearing on page 15 of appellees' brief, was also before the Court. The only difference is that the chief -- in the BC Eighth Congressional District, I have outlined in red because it is in the state in the reproduction. Other than that it is identical, but I should point out that we do not say that the only -- is the Eighth District, because five districts are overrepresented and five districts are under represented in substantial degree. And we feel that every district must be considered in evaluating this problem. Now, Missouri peculiarly situated with regard to the structuring of its self-governmental units, so that we think that Missouri could be the shining example of how congressional districts may be drawn with almost mathematical exactness. I will give the Court my reason for that. Missouri beyond almost every state has 114 counties, and the City of St. Louis which by statute is in effect a county, in other words, 115 counties to be divided between ten congressional districts. We have the two masses of population density on the west of the state in Kansas City, the Fifth district and on the east of the state in St. Louis in St. Louis County the first, second and third districts. Those four districts do not exceed the boundaries of one county. In fact in each case, there are portions of the county left to go into rural districts. We have remaining six congressional districts to be divided among 115 counties or mathematically, we have an average of 19 county building blocks within which to structure a congressional district. Well, obviously the more building blocks you have and the smaller the building blocks, the easier it is without crossing county lines to create congressional districts of great exactitude. Now beyond that in Missouri, the fact is that there are 38 counties of the state or almost exactly 1/3 which have less than 10,000 population, which means that there is a great flexibility of shifting of all counties. In fact, with regard to the variances in this case, the variants in the Eighth District of excess of over 13,000 population, that figure of 13,000 population is more than the population of half of the counties of Missouri of each of the lines counties of Missouri. If you take the total variance of all about 26,000 -- almost 26,000 that variance is more than the population of any of 95 of the 115 counties of Missouri. In addition by the map which also appears in our brief fortuitously on the legislature's plan, there are small counties abutting the Eighth District which simply by a shifting of the abutting county. Very easy, the legislature could've made these changes. I should say that --
Hugo L. Black: What difference would that have made in the other districts?
Irving Achtenberg: This is true of every district. If we not only could shift population from the eighth to the fourth, which is of course is the one which brings the greatest in overrepresentation, but from the seventh to the fourth, from the ninth to the sixth, from the eighth to the tenth, from the seventh to the tenth. And since in the urban areas, the legislature did not hold the county lines, but in fact went to township lines, went to ward lines and even to precinct lines. We could, following the pattern of the legislature and the legislature could have shifted from district one into nine, which would bring it up to equality while if it shifted 5,000 to six which would've have dropped if ever and that difference --
Hugo L. Black: You mean 5,000 people?
Irving Achtenberg: Yes, sir.
Hugo L. Black: Splitting up the counties?
Irving Achtenberg: With -- you can take Scotland County from district nine into district six, which would bring district six up to 5,000 closer to equality. That would short district nine down to 423.
Hugo L. Black: Would that split the county?
Irving Achtenberg: No, sir. That'd be shifting a --
Hugo L. Black: Keep it in the same district?
Irving Achtenberg: That would be shifting a full county from district to district.
Hugo L. Black: Do you think it's advisable if possible, to keep the identity of the county boundaries on congressional district?
Irving Achtenberg: I think that is a consideration which this Court has accepted. I think it comes down to the practicality of the map drawing. In this case, we don't suggest that it's necessary to split county lines in the rural areas. We say only that in the city where the legislature has split county lines completely down to precincts --
Hugo L. Black: Well that's absolutely --
Irving Achtenberg: -- that we would follow their plan --
Hugo L. Black: That's absolutely necessary, I mean in the big cities.
Irving Achtenberg: I would think so, yes sir. At least it may be.
Hugo L. Black: Yes, I see in some of the very large cities.
Irving Achtenberg: And we don't quarrel with the legislature's attempt to hold the county lines where they could.
Hugo L. Black: Do you make any complaint about the structure of that eight? Just looking at it is anything it should have been division?
Irving Achtenberg: Well, I --
Hugo L. Black: With reference to the way it's built?
Irving Achtenberg: I think it is almost a two-headed gerrymander. We don't -- or two-headed salamander, we don't make an issue of that point. We think the testimony of the majority leaders of both parties in both Houses made it clear that this was what I would call a political gerrymander. Clearly the leaders of both parties were playing the legislative game, seeking to achieve their legislative purposes. Now that --
Hugo L. Black: Well, I guess they will always do that, won't they?
Irving Achtenberg: They will do it to the extent that the rulings of this Court permit, but not --
William J. Brennan, Jr.: But did I understand you to say Mr. Achtenberg that you are not defending the District Court judgment on any ground that in any event aid as a gerrymander and an infamous one?
Irving Achtenberg: Well, we think that the whole plan is a political error.
William J. Brennan, Jr.: No, no, no but are you -- are you defending the District Court judgment on the ground that eight constitutes an impermissible political gerrymandering? I don't read anything you said in your briefs.
Irving Achtenberg: Now I think you're correct sir.
Earl Warren: Well Mr. -- counsel I noticed that district eight is 13,542 above the normal. And that four is 12,260 below. That's almost equal one above and the other one below. Now, how could they without disturbing county lines take 12,000 thereabouts from eight and give it to four?
Irving Achtenberg: I think the fourth --
Earl Warren: To which would equalize the two districts?
Irving Achtenberg: I think not to arrive from the mathematical perfection, but to get within 2,000 you could shift either Howard County with 10,859 and it abuts for --
Earl Warren: Yes.
Irving Achtenberg: -- direct from district four, or you could reach almost the same result by shifting Morgan County, which again completely abuts the adjoining county with a population of 9,476 which would bring your variances in those two cases to a matter of a thousand or two, rather than the range of 26,000.
William J. Brennan, Jr.: Well are your clients concerned only of, I mean is there any practical foundation for political or something for your protest against this result? What is it, are you just concerned to raise and have decided of abstract question whether excesses and overages are wrong or is there something else that your client considers?
Irving Achtenberg: Well, if the Court please, we're in this manner of political, we have -- one can never speak for why the individual parties are there. But we're not attacking any particular line, because if they were Republicans or if they were Democrats --
William J. Brennan, Jr.: So your client's only interest in this is that it be done as the constitutional decisions require it to be, is that it?
Irving Achtenberg: I think that statement is correct and I can certainly say that that their attorneys are only proposing -- are only appearing and we appear of course as appellees.
William J. Brennan, Jr.: Well, what narrowly you know in these cases? There seem to be partisan interest served by different sides, but that's not true is that it?
Irving Achtenberg: To my knowledge, no sir. Again, this is my statement confirmed by Mr. Preisler who is one of the plaintiffs and is not in the record.
Hugo L. Black: Well is the dispute simply over that in fact that the courts have said they must be nearly like as possible in population? That abstractly, you don't think they are and that you could take it as just made a little closer?
Irving Achtenberg: I would agree with Mr. Justice's statement except that not a little closer. They could've done a lot better and could've done so very easily. There were before the legislature 60 --
Hugo L. Black: But there's no -- you have no argument of any kind based on the fact that somehow that voters are going to be heard of what is done?
Irving Achtenberg: Well we certainly have answers to their discussion on votings. We first of all of course take the position that this is not de minimis situation. 26,000 is not the proper quorum or authority. It's the votes of 26,000 people, and as I indicated substantially more than the populations of most of the counties of the state. But beyond that we feel that the motives involved here are not justifiable.
Hugo L. Black: Why?
Irving Achtenberg: Well, let me take them one by one with regard to the position which is not specifically articulated by the appellants. But generally so, they talked about the justification of legislative interplay. They used the term political compromise. They used the term practical political problem. But of course, the argument was that this was the best job that could've been passed by the legislature. I think the Court pointed out that the legislature would have to follow the mandate of the Court.
Hugo L. Black: So do you think -- do you think that's not worthy of any consideration whatever?
Irving Achtenberg: What we think that that argument sir could be used to justify any denial of equal representation.
Hugo L. Black: I mean, do you think or maybe so but do you think it has no right to have any weight at all, practical pragmatic situation of what you can do in the legislative body?
Irving Achtenberg: Well we think it is an element of the pragmatic problem to be weighed. We don't think that that --
Hugo L. Black: You do then think it should be given some weight but you don't say how much.
Irving Achtenberg: Well I have to be specific. I certainly don't think that seeking to create a Negro district or seeking to exclude Negroes, a race or gerrymander would be acceptable. We don't think a political gerrymander would be acceptable. I struggle with it simply because to talk of legislative compromise tells me very little. I really think basically my position is that the -- that it is not an acceptable ground.
Hugo L. Black: But that is a pragmatic fact of life that has to be considered, doesn't it? Is that you stated --
Irving Achtenberg: I would say no sir, because this legislature met three times on this vote. If the Court were to accept the first act of the legislature, which could've been justified by the same basis, in other words that this was the best that could get through. And on the political basis, I suppose you could say it was then the Court would have had to accept that fact.
Hugo L. Black: Now if that's true, unless you can show something, it just shocks you someway. Just so outrageous that nobody can take it. Or you can show that it aids the Republicans or helps the Democrats or does vice versa. Why should we not take into consideration?
Irving Achtenberg: Well, I --
Hugo L. Black: How do we know how much those -- they live in that district. They know how to work together and fight together and what the practical history has been before. And to be required, assume simply to acquire -- maybe they've done this good as practical unless you just split up the county from the precinct, doesn't it? How do you know that?
Irving Achtenberg: Well, I think that the history of reapportionment is, Mr. Justice Black well knows, shows that what happened after Colegrove versus Green was that the legislatures of the several states structured congressional districts which ranged as far as 600,000 from the -- one range to the other.
Hugo L. Black: I know that very well and I said it isn't that case.
Irving Achtenberg: And after the --
Hugo L. Black: That's why they said it from what the court held. But that was a big understandable on its face so outrageous and so far from what was practical that that rather answered itself.
Earl Warren: But we have --
Hugo L. Black: Without regard to the fact that the trade -- they are in the legislature and they're doing the best they can to bring them out any further.
Irving Achtenberg: I would still not accept the argument made of legislative practicability because this in effect says that in a state as in Missouri where one party has the majority in both Houses it may politically structure the district so as to be favorable to that party. And it seems to me that's wrong, and it seems to me that if it exceeds practicable population percentages, it is contrary to the mandate of this Court.
Potter Stewart: Is -- calling your attention to the table on page 55 of the appellant's brief on the merits. That purports to be a list of all states. I gather in order of -- those states are listed in order of deviation in that congressional districts from the perfect average district beginning with the smallest in deviation and ending up with the largest. Is that what that is? I appreciate this isn't your table. It's your opponent's but I assume you're familiar with it.
Irving Achtenberg: I believe so sir, yes sir.
Potter Stewart: And that shows Missouri to be the what? The eleventh best in the country from the point of view of size of deviation?
Irving Achtenberg: I just count it, yes sir that is correct.
Potter Stewart: And I don't know that it appears here. How many of these others have been judicially approved? We do know that Mississippi has been which is 12.
Irving Achtenberg: And I believe Florida which --
Potter Stewart: Florida is about twentieth.
Irving Achtenberg: If I might address myself to that?
Potter Stewart: And Missouri -- well I was going to ask you, do you quarrel with the accuracy of this -- the factual accuracy of this table?
Irving Achtenberg: I don't quarrel with the percentage variations. I do quarrel with using percentages as a standard for judging one state as against another state. I would like to speak to that point.
Potter Stewart: Well, I agree with you on that. I did speak to that point in some length in dissenting in the Lucas against the Colorado General Assembly. I don't think our 50 states are fungible goods either.
Abe Fortas: May I ask you, sorry, may I ask you this question? You may want to answer it after lunch, it works to be all right for me. Your argument seems to me in one respect in a way depends upon burden of proof. And your brief I guess that the burden of proof to burden of justifying deviations from the ideal is on the state. Now I wonder if it is impossible that the question of burden of proof may be a little more complex than that. And where you have what appears to be a gross for non-permissible variation, whatever figure you may target figure one may have in mind. If I have 10% in particular. Whatever target figure in the particular circumstances one may have in mind, where there is a mathematically large or a gross deviation from the one man, one vote mathematics. But then the burden is on the state to justify it. But may it not be that where and perhaps this is such a case, and this perhaps this is such a case that where the variation is relatively modest that the burden may then be on those attacking the plan. That is to say that you're trying now to bear that burden in one respect by saying that the state could do better and could come to a closer approximation of the mathematically ideal. So my brother have asked you whether you have other complaints about the plans, such as political gerrymandering or other attempts to keep incumbents in office or whatever it may be? And as I understand it, your answer to that has been no. But what I'm saying to you is that isn't it possible that where the figures of such that the mathematical deviation does not appear gross that the burden is then on the other party, namely the party attacking the plan.
Irving Achtenberg: Well, Mr. Justice Fortas it seems to me that the burden does not shift when we get into this matter of the weight of the evidence. I would say that the burden rests with the proponents to justify their plan. Perhaps, visibly or on examination of simple figures, they might sustain the burden of going forward and then perhaps we have a burden which we have assumed in this case.
Abe Fortas: There is certainly may be a more accurate way of stating it.
Irving Achtenberg: Of showing that that they have failed in that regard and that they have failed to justify what we consider substantial variances under the peculiar situation in Missouri.
Abe Fortas: But if you assume that they have -- the state has before its burden by showing that these figures are within tolerable range, then the only thing you've been talking about thus far is that they could've done better?
Irving Achtenberg: No sir. Our --
Earl Warren: We'll recess now Mr. --
Irving Achtenberg: To continue with my answer to Mr. Justice Fortas's question. It's our position that the appellant, the attorneys representing the state did not meet the burden of proof and we think, well quite specifically the lower court so held. And in both the statement, the opinion of Judge Oliver and Judge Collinson, they both indicated that the burden of proof had not been met by the proponents of the plan. But of course we recognize that this Court must examine that and we will continue to argue that they have not. Then I would like to continue somewhat from the map one additional piece of evidence of the 10 congressional districts. One might say quite clearly that the first three in St. Louis and St. Louis County which are exclusively urban and suburban, and five which is Kansas City, Jackson County but exclusively Kansas City. Three of those four are well over populated which means of course if they are well under represented, three out four. Now, the Eighth District has been characterized in the appellant's brief as in the group of predominantly rural. But the fact is of course that it has major cities and it extends well into the urban area of St. Louis County. So that we may in effect consider it as a mixture and for the purposes of my argument, I would ignore it. This leads five predominantly rural congressional districts, and four of those five are under populated and therefore over represented. So we have a classic Reynolds versus Sims situation. We have the rural areas strongly favored three out of four over represented against the urban areas under represented three out of four. I would like to speak to the question raised both in the briefs and the arguments as to the percentage comparisons with the Florida case, Gong versus Kirk and the Mississippi case, Connors versus Johnson. First of all the Court will recall that in both of those cases, this Court affirmed the lower court. There was not the situation which we have in the instant case where this Court is being asked to review the weight of the evidence and reverse the trial court. Second of all and although I realize there is dispute between the appellants and the appellees and between the majority decision of the court below and the dissenting opinion, as to what the issue was before this Court in Connors versus Johnson. We still hold to our position that the only issue raised there was the issue of racial gerrymander. And so this question of as equal as practicable by population really was not presented to the court and therefore the court did not fully consider and weigh the question of percentage variances. But more than that, I think we must go to the concepts behind structuring of districts to see why comparisons between states are little and perhaps no value. There are various factors, the total population of the state the population distribution in the state. Are there dense urban areas? How many dense urban areas? How are they in relation to rural areas? The number of counties, large or small the size of the counties, are they easily movable? The location of the counties as in the particular plan, are they so located that they may be shifted from one district to the other. In other words, the total geographic relationship of thence large counties to the rural sparsely populated counties. Now in considering these factors as I illustrated before, Missouri is an ideal situation where if the extreme of having, or two dense populated areas in two corners of the state and in the interim after the state, we have these 115 counties to be divided roughly 20 to a congressional district. Now how does this relate? Just for illustration, and I do not cite these examples to argue the comparisons specifically but two examples which illustrate why the problem could well be different in other states? Let us take first New York. New York with 17 million population as opposed to Missouri's four million. With 41 congressional districts has only 62 counties. This means as a matter of actual fact in the maps before this Court in the case to follow that the congressional districts in no case had more than four or five counties to a district. So your building blocks were large, and the flexibility was very limited. So you might well argue that the percentage is significant in that state but have no significance when you discuss Missouri situation. The same thing to a different extent is true in Gong versus Kirk in Florida. Florida has 12 congressional districts, but instead of Missouri has a 115 counties, it has 67. And the distribution there was such that in six districts, only three counties were involved. One district four counties, in four districts it rose to nine or ten, and in only one district did it rise to the level of the flexibility of Missouri which has in that case they consolidated 23 counties. So it seems to me that we come back to the fact that percentages simply are not meaningful. The test should be a good faith effort to be the best that can be done. And we submit that in Missouri, the legislature failed by a long shot.
Potter Stewart: Mr. Achtenberg, fully understanding your position that percentage comparisons per se are not very meaningful. Let me call your attention again to the table on page 55 of the appellant's brief on the merits which indicates as you agreed that Missouri seems to be the 11th best state in the union from the point of view of percentage deviations. And I notice here that in the legend on the bottom it indicates that two asterisks means that the data has been verified by court opinion. And I noticed that that's true of the following states that have larger deviations than Missouri. Mississippi, Montana, Florida, Alabama, Illinois, Kansas, New Jersey, and New Hampshire that the data has been verified by court opinion. Would it be accurate or inaccurate to infer from that with those of had court approval?
Irving Achtenberg: Well, I certainly can't speak of specific knowledge of each of those cases. I certainly gather that the courts reviewed the question. In no case were those matters before this Court if I'm correct.
Potter Stewart: Well it was in Florida, we agree.
Irving Achtenberg: For the Florida case yes. Other than that, I would simply say that he issues are different in each case. The geographic, the geopolitical arrangements of the states were different. Perhaps there were factors. Perhaps in some of those cases justifiable variations were obtained for reasons not existing in the Missouri situation.
Potter Stewart: Yes, what my explicit question was when it says here that the data has been verified by court opinion. Does that mean that those plans had been approved by court decision? You don't know the answer to that?
Irving Achtenberg: No, sir. I would assume it does so in it. I would now like to go to the question raised by the appellants with regard to the -- what they view as the peculiar nature of the Eighth Congressional District. I would first point out that there was virtually no evidence before the Court that the legislature considered student population, transit population or military population. The only testimony was that of two of the representatives who stated that they saw this as a factor. The fact is there are no statistics before this Court. There were no statistics before the lower court of what the situation is in any other of the nine congressional districts. And I would like to speak to that point. They speak of the state university in the eighth, but in the fourth the adjoining district at the opposite end of the scale, there is Central Missouri State College, a state college. There are the schools in Kansas City. There are as throughout the State of Missouri numerous sectarian colleges. On the question of the military establishment of Fort Leonard Wood, in the fourth district again at the opposite end of the scale, there is Richard Scabauer, an army base. There's Whiteman Air base, and again throughout the state, I presume if there were table, we would find that there are these situations in various districts of the state. Certainly in each of the rural districts, there is a state college. There are -- the Osteopathic College in one of the districts. There are enumerable with the Midwestern tradition of small colleges. There are colleges throughout the state and without a statistical analysis of this, it seems to me it's completely without meaning to argue that there was some legitimate consideration given to the Eighth Congressional District. It simply isn't so. The same argument, it seems to me applies with regard to the question of population trends. We just really don't know. First of all there is no evidence in this case. Second of all the fact is I think we don't know, the statistics are not adequate. They are rough. We have some ideas, but where our ideas also in the case that there is growth in the eighth and there is growth throughout the state. Comparably held that affects the situation, the evidence does not exist in this case.
Abe Fortas: Can you, without too much trouble, indicate what were the lines of the Eighth District before this redistricting? Was Jefferson County in that same district?
Irving Achtenberg: Frankly, I can not sir. I think Jefferson was. I'm not sure of that. The gentleman indicates that's correct. But I don't have the line of the district?
Abe Fortas: There's no map anywhere in these papers, is there that shows district lines before the redistricting?
Irving Achtenberg: I think not. Does any other counsel? In 257 F. Supp., I'm told that it does appear. I believe I'm correct in this however that the neck or the tail which extends into St. Louis County is a new innovation which picks up substantial urban populations to throw into this Central Missouri District.
William J. Brennan, Jr.: Are there any improper counties you describe with the legislature?
Irving Achtenberg: Well, I would certainly have to be bound by the record and by the statements of the appellants' counsel. The statistics before the Court indicate a favoring of the rural area versus the city areas. It's testimony of counsel indicates that there were -- and I think that the testimony of the legislators. When they speak of legislative considerations, there can only be two things they are talking about. They're either talking about personal considerations keeping a particular representative or a Senate -- a congressman within his own district. Or the other alternative is favoring the district from a political, from a partisan political standpoint. So when all the legislatures testified and when the appellants argued about legislative compromise, they're talking about one or both of these things. It can't be anything else. They're not talking about geographic or map drawing adjustments. They're talking about the political consideration which we feel are irrelevant and are not constitutionally justifiable --
Potter Stewart: What's the make up of the present congressional delegation from the State of Missouri, 10 members of the House of Representatives?
Irving Achtenberg: Can somebody answer that? Nine and one.
Potter Stewart: Nine Democrats and one Republican. Used to be eight and two.
Irving Achtenberg: Correct.
Potter Stewart: Until last November, or rather until last week.
Irving Achtenberg: If the Court please, it seems to the appellees' in this matter that in weighing this case there is a consideration that should be considered. The appellants talk about a flood of cases coming before the Court. It seems to me that if the flood must come, it must flow. However, it is certainly debatable what causes the flood. We think it may well be that creating a safety zone, a haven of refuge by establishing a de minimis or a reasonable figure will establish a zone within which the legislature based upon their past history, will then seek to gain their partisan political considerations. As result of which perhaps more cases will come before this Court, and we think that the Court would do well to stand to its present standards which is simply that of approaching practicable equality by population. I'd like to summarize by quoting from Reinhold Niebuhr who said “The vision of a just society is an impossible one which can be approximated only by those who do not regard it as impossible.” Perhaps mathematical equality may be impossible. But equality of a voter's rights will only be achieved when those charged with the task seek equality and do not view it as impossible. Thank you.


Warren E. Burger: We will resume arguments now in Mobil Oil against Higginbotham and others. Mr Benjamin you may continue.
Jack C. Benjamin: Mr. Chief Justice and may it please the Court. At the recess yesterday, I believe, I was attempting to answer a question from Mr. Justice White. I was seeking to remind the Court of how the maritime law has evolved over the decades by an interrelationship of both nonstatutory and statutory law, decisional law, augmenting statutory law. The Jones Act and the Death on the High Seas Act in state statutes have all been complementing one another over a period of years. Further, I believe this Court has answered that question in the Gaudet case and I have read just briefly from Footnote 22. I am taking it out of context. "Nothing in the legislative history of Act suggest that Congress intended the Act's statutory major of damages to preempt any additional elements of damage, for a maritime wrongful death remedy which this Court might mean appropriate to effectuate the policies of general maritime law."
Potter Stewart: What Act is referred to that, Jones Act or --
Jack C. Benjamin: Death on the High Seas Act sir.
Potter Stewart: Death on the High Seas Act. Thank you.
Jack C. Benjamin: One further point about the exclusivity of the Death on the High Seas Act, and I refer the Court --
William H. Rehnquist: But the Death on the High Seas Act had been applicable on the fact situation of Gaudet?
Jack C. Benjamin: No, Your Honor it would not --
William H. Rehnquist: Then that was dicta that you are just reading, wasn't that?
Jack C. Benjamin: Yes, it is dicta. It is not really part of the Ratio decidendi the case yes sir, but it is illustrative of what the Court's feeling was concerning the applicability of the general maritime law beyond territorial limits?
John Paul Stevens: You did take it out of context, didn't you?
Jack C. Benjamin: I did take out of context. I said I did so to save the time.
John Paul Stevens: May I ask you some to take you through (Inaudible) Mr. Benjamin? How could Congress then had been trying preempt the cause of action that had been decided, didn't exists in 1920? That footnote, as you read it, says that the Congress was not trying to be preclude some additional damage remedy on the High Seas. Is that right?
Jack C. Benjamin: It was not intended by Congress.
John Paul Stevens: Couldn't it be intended by Congress? There was just no cause of action at all and here it covered by the statute, was it?
Jack C. Benjamin: There was Your Honor before the Harrisburg. Prior to the Harrisburg --
John Paul Stevens: Yeah, but over the time the statute was enacted Harrisburg had been decided, so there is no cause of action, so how couldn't Congress had been deciding anything about damages except what it puts in the statute, it has been enacting. I just do not -- I do not quite understand how this footnote even helps you even reading it the way you do. Might be I have missed something, I do not know. It was a very confusing area.
Jack C. Benjamin: I believe the opinion of the Court was dealing with whether or not there was anything inimical in the interest of the maritime law to complementing the Death on the High Seas Act by nonstatutory damages and that is the context in which I believe this footnote is written. Further, the language of the Act itself may indicate that the Act is not intended to be exclusive because Section 764 reveals that with respect to elements of damages recoverable under the Death on the High Seas Act, by expressed provision the incorporation of foreign law is permitted to supplement the damages recoverable under the Act. So that if an accident occurred involving a Japanese shipping company, for instance, and the law of Japan permitted the recovery of nonpecuniary losses, a seaman, in those circumstances and his survivors, could then augment the pecuniary losses provided for under the Jones Act and Death on the High Seas Act by the Law of Japan.
John Paul Stevens: Mr. Benjamin let me ask another question? Supposing you are right we rule it, and then supposing that day after the Court decides you are right, Congress repeal the Death on the High Seas Act, would that affect any change in the law? (Inaudible) all of that statute if we agree with you? Any need for it at all.
Jack C. Benjamin: To answer you on this question Mr. Justice Stevens, I believe that the general maritime law concepts would be broad enough to cover most of the provisions under the Act, except for those which have not been defined by a jurisprudential development, such as statutes of limitations, beneficiaries and alike.
John Paul Stevens: But even on statute limitation if you are right -- that statute of limitation in the Death on the High Seas Act would not necessarily bar a Marine type action, would it?
Jack C. Benjamin: No it would not. In my opinion the doctrine of laches would apply to a Marine Type --
William H. Rehnquist: In Congress' serving attempt to this Court, Congress can enact a statue providing for a specific limitation on admiralty or providing for a specific limitation on damages, and this Court can come along and say, "We do not care what Congress said. We like it this way."
Jack C. Benjamin: Your Honor's question addresses itself to the separation of powers account for in Constitution, and I respectfully attempt to answer that Mr. Justice Rehnquist by saying that in the maritime field, the courts have filled the void.
William H. Rehnquist: But there is not any void here. Congress is active.
Jack C. Benjamin: But Congress' action does not provide an adequate remedy.
Warren E. Burger: But isn't that for Congress rather than this Court to say?
Jack C. Benjamin: Well, as I thought the Court answered in the Gaudet case there was nothing in the Act, which prevented the Act from being augmented by decisions permitting additional elements of damage.
Warren E. Burger: Is that ordinarily to rule with respect to legislatively created cause of action this time?
Jack C. Benjamin: Well, the legislative created cause of action, may it please Mr. Chief Justice, was intended to create a jurisdiction, in a jurisdiction only in the Federal Court. Now, the measure of damages was held to be adequate, was throught to be adequate by the Congress in both the Death on the High Seas Act and the Jones Act, but the maritime law was a constantly moving body of law. It was a constantly advancing body of law. Today every state in the Union has wrongful death statutes, and every state in the Union -- I withdraw that -- and the majority of those wrongful death statutes permit the recovery of nonpecuniary losses. So, it does not offend my sense of justice for the Court to augment statutory elements of damage by nonstatutory elements of damage.
William H. Rehnquist: You say this law was both moving and advancing. I take it, you mean something more than change. By the way that what do you mean by advancing?
Jack C. Benjamin: Well, Mr. Justice Rehnquist, the maritime law has always held a special solicitude for seaman and for those who garb the hazards of the sea and has always sought to give rather than to withhold a remedy.
William H. Rehnquist: Then why is it necessary to advance it all if it is always been this way?
Jack C. Benjamin: Because time has changed and social concepts changed, and the maritime law --
Warren E. Burger: What the particular change, would you rely on to support your position?
Jack C. Benjamin: Well, the fact that most of the states, the majority of the states, have provisions in the wrongful death or Acts which allow the recovery of nonpecuniary losses.
Warren E. Burger: Congress surely must be aware of that.
Jack C. Benjamin: Well, of course the Congress has not acted since 1920 and I am not sure there has been any movement for legislation concerning the Death on the High Seas Act in recent years. There has been with regard to the Jones Act, I am aware of. I would like to touch upon another point the petitioner raises. If this Court restricts the applicability of the maritime law to territorial allowance, the three mile limit, it may then return to what is known as a locality test which was denounced by the Court as a test alone at least for jurisdictional purposes in the Executive Jet case by way of illustration. A widow of a seaman who was fairly injured as a result of the breach of a maritime duty within the three mile limit could recover nonpecuniary losses and the widow of the seaman who was fairly injured on the high seas as a result of the breach of same maritime duty could not. This is basically unfair. It illustrated further those are always aware of the amount of field activity off the coast to Louisiana. Boats and ships are constantly moving from the shore line and to the high seas. It would impose a most onerous burden upon litigant. If he were entitled or, if his survivors were entitled to recover nonpecuniary losses within the three mile limit and the litigants were not positive of where the injury or death occurred. Louisiana's coastline as Your Honors know from arguments in other cases involving boundaries of meander, islands appear, disappear and reappear, and it is quite difficult to ascertain for a litigant where the boundaries are. In addition, the locality test is just in basis and unfair and unrealistic test. Now, I would like to touch just briefly upon the Court's decision in the Barbe case which petitioner brought out. The Barbe case concerned itself with the survival provisions of the general maritime law. Barbe court recognized the existence, and I use that language because I believe what this Court did in Moragne was recognized the existence. It restored what was once known as a cause of action for wrongful death under the general maritime law. It did not create a cause of action. The Barbe court recognized the cause of action. Under the survival provisions of the general maritime law using the same, reasoning the same methodology as this Court did in Moragne and Gaudet. It allowed recovery for conscious pain and suffering of the decedent, but denied recovery of funeral expenses for some reason which has been categorized as absurd by some on the basis that funeral expenses would have been incurred at some future date anyway and of course if that logic would carry out, there would be no reason for Wrongful Death Acts because people are bound to reach the terminal stage with life. We think the decision of the Barbe court was completely illogical and would create additional anomalies than those which existed pre Moragne. Finally, I would like to touch upon the Gaudet decision. The principal reasons for dissent by some members of the panel of this Court in Gaudet were present in the Gaudet case and do not exist in this case or in these cases. In first place no suit was brought by the decedent prior to death presumably decedents were killed instantaneously and there is no problem of Res judicata or collateral estoppel. Secondly, there was no possibility of a double recovery as the Court was concerned with.
John Paul Stevens: Mr. Benjamin, even though those facts are arguably would apply to your reasoning within the whole concept of Gaudet applied in high seas.
Jack C. Benjamin: It would apply Your Honor yes. As I said the recovery for losses society -- although not permitted under the provisions of the Jones Act and Death on the High Seas Act or permitted by statutes of most states and consistent with the advance of the maritime law and its special solicitude --
Byron R. White: Had there been any suggestions to Congress that Congress catches the Death on the High Seas Act up to the modern trend?
Jack C. Benjamin: I did not hear the last part of your question sir.
John Paul Stevens: Had there been any suggestions to Congress that the Congress amended the Death on the High Seas Act as for the times as you would go?
Jack C. Benjamin: I do not believe they have been Your Honor.
Byron R. White: At least time that has not amended.
Jack C. Benjamin: In recent years it has not amended. I would like to conclude by reminding the Court that both Death on the High Seas Act and the Jones Act need not be relegated as the Fifth Circuit said and some of the commentators have said to briney deep not to scrappy or to the level of nonstatutory statements. They may remain as a basis for recovery for pecuniary losses and may be augmented by the remedy annunciated by this Court in Moragne and Gaudet for the recovery of nonpecuniary losses with substantial uniformity to the law and substantial justice to the litigants. Thank you.
Byron R. White: I suppose you would say that the statute keeps this Court from reversing itself and utterly doing away with a cause of action for Death on the High Seas Act. That is at least the function of the statute.
Jack C. Benjamin: I would not claim that Your Honor.
Warren E. Burger: Veru well Mr. Benjamin. Mr. Schumacher do not have anything further?
Jack C. Benjamin: Thank you Your Honor, I choose not to.
Warren E. Burger: Thank you gentleman. The case is submitted.