UNITED STATES v. ALABAMA

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Argument of Rankin

Chief Justice Earl Warren: Number 398 on the docket, United States, Petitioner, versus the State of Alabama et al.

Mr. Solicitor General.

Mr. Rankin: Mr. Chief Justice and may it please the Court.

On Friday of this last week, the United States filed with this Court, a memorandum describing action by the Congress that we think has a very important bearing on this case and removes some of the problems otherwise involved in the case before the Court.

I'd like very briefly to call your attention to that memorandum.

It refers to the action of the Congress in passing the Civil Rights Act of 1960.

That Act has not yet been signed by the President.

The United States believe that it will be within a short time.

Justice John M. Harlan: When is the time of --

Mr. Rankin: I think it was up on the Fifth or I think by the Sixth, we will know about the action of the President.

And United States is willing to rely upon the assumption that it will be signed and that the Court should examine the case in the light of that action.

Now, that Civil Rights Act of 1960 is an amendment of the 1957 Act that was involved in this proceeding up to the time that we filed this memorandum and I think that it would govern the -- this proceeding hereafter.

As the Court will recall, it has held several times that since this in an -- an action for declaratory relief and injunctive relief, it is prospective in regard to the effect of it.

And therefore, there is no problem about what the law was at the time this case was before the lower court.

It is a question of what the law is at the time it is brought back and tried before that court.

And the court has also held that the mere fact that there are facts that have -- relating to acts that have occurred prior to the passage of the legislation does not make it retroactive.

The Reynolds case and Cox against Hart are both cases that bear upon that question.

So that the Court would properly, in examining this in the trial of this proceeding before the lower court, take into account assuming that this Act is passed, this amendment, the Civil Rights Act of 1960 would take as an amendment of the 1957 Act and try to determine what the law is with regard to the powers of the United States to bring such a proceeding in that condition.

Now, the 1960 act is very explicit in regard to the power of the United States Attorney General to bring such an action as this.

We have set it out on page 2 of our memorandum.

“The act or practice shall also be deemed that of the State and the State may be joined as a party defendant.

And if prior to the institution of such a proceeding, such official has resigned, or has been -- been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State.”

So, in this case, under the facts here, there would be two separate grounds for making the State a party, one, the absolute power to make the State a party and the other the power to make the State a party whenever the officer has resigned.

The parties, Rogers and Livingston, have both resigned in this case.

And so, it would come under both provisions of that portion of the amendment to the statute.

We do have one further aspect of the case and that is the fact that the lower court dismissed the action as to all parties.

And the United States made the Board of Registrars a party and also Rogers and Livingston, the two individuals, who were registrars and had resigned.

Though that question, we regard as a difficult question, we think the United States is right about it and we've developed it at length in our original brief, but we do not think the Court has to reach that question.

In light of the Civil Rights Act of 1960, assuming it is signed because we think that the Court should assume and the United States is willing to assume that with the State as a party, thus a state will comply with any final order that the Court enters in such a proceeding in regard to these most important rights of citizens to vote.

And therefore, we suggest that the Court need not reach the question of the individuals in this case and the effect of their resignations and that the Court can properly find that the State under the amended statute, would be a proper party and that the Court at -- would at the time the case is returned to have the power to take jurisdiction of a proceeding against the State.

Justice Felix Frankfurter: Not only a proper but a (Inaudible) as I (Voice Overlap) --

Mr. Rankin: That -- that would be -- that's right, Mr. Justice Frankfurter.

And we also suggest that it would be proper for the Court to say at -- in this proceeding that the State can be made a party and the Court has jurisdiction.

Justice Felix Frankfurter: Well, the State wasn't made a party, wasn't it originally?

Mr. Rankin: Yes, Mr. Justice Frankfurter.

Justice Felix Frankfurter: So, no -- no additions -- no additional party -- and in the -- the pleadings need not be changed at all except to release or dismiss the individual defendants.

Mr. Rankin: Yes, Mr. Justice Frankfurter.

I'm trying to address myself to the problem whether it is proper at this time for the Court without sending the matter back.

Justice Felix Frankfurter: I understand but I just want to know what is actually before us.

Mr. Rankin: Yes.

Justice Felix Frankfurter: The State is now before us as a party by your complaint.

Mr. Rankin: Yes, Mr. Justice.

Justice John M. Harlan: And was this case tried out on the merits of law or --

Mr. Rankin: No, it was dismissed.

Justice John M. Harlan: On the pleadings?

Mr. Rankin: That's right.

And so, there is no factual problem that the Court would have to consider as the lower court would have to consider in regard to this proceeding in passing upon what the Civil Rights Act of 1960 means as to whether or not the State can lawfully be made a party and whether the Court has jurisdiction to hear such a proceeding against the State.

Justice Felix Frankfurter: What was the ground of dismissing the State?

Mr. Rankin: On the ground that the 1957 Act did not permit the State --

Justice Felix Frankfurter: Did not explicitly -- was not explicitly directed against (Inaudible) was not included in the 1957 Act as to the State.

Mr. Rankin: Yes.

Justice Felix Frankfurter: It's merely argumentatively served before us.

Mr. Rankin: That's right, Mr. Justice Frankfurter and the --

Justice William O. Douglas: I thought it was dismissed as to all the defendants.

Mr. Rankin: It was.

It was dismissed as to all of the defendants.

And the United States takes the position here that if the State is a party, it will assume that the State will abide by any lawful decree of the Courts.

Justice Felix Frankfurter: Well, there wasn't a suggestion to the -- and what you've answered a minute ago, it wasn't a suggestion that no decree could be directed against the State if it -- if it either was recalcitrant or denied the authority of the Court but merely that the statute did not authorize a decree against it.

Mr. Rankin: Well, I might -- I don't think that's quite accurate --

Justice Felix Frankfurter: Well, yes but I'm --

Mr. Rankin: -- Mr. Justice Frankfurter.

The lower court seemed to have no difficulty with the -- it didn't reach any constitutional question but had no difficulty with the power of the Congress to provide for the State to be made a party if it saw fit.

The Court of Appeals doesn't seem to me as so clear in that regard and at least it's very clear that unless it is explicit, it would not assume that such an action could be permitted and it has some language to the effect that there might be some doubts or at least it wouldn't be.

[Inaudible] I think it's more correct to say it didn't reach that question.

And so it -- you can't say that they have recognized in advance that there was such a power in the Congress.

Justice Felix Frankfurter: Now, so far as your position -- so far as the Government position here is concerned, assuming one agrees with you, that the case may be decided it would be an equity suit, as of the -- as -- on the state of the law as of the time that the decree is sought to be entered or asked for.

Is -- are you going to argue here the question of power on the part of Congress to direct such a decree being entered against the State in this case?

Mr. Rankin: I don't --

Justice Felix Frankfurter: The statute is clear, is it not?

Mr. Rankin: Yes, the United --

Justice Felix Frankfurter: So, is that contested here?

Mr. Rankin: The power of Congress?

I don't think that this --

Justice Felix Frankfurter: No, that this is -- there's no contest that the statute said what it says.

Mr. Rankin: Well, I don't think --

Justice Felix Frankfurter: Or is there?

Mr. Rankin: -- they have path of fair opportunity to present that.

Justice Felix Frankfurter: Suppose that (Inaudible)

Mr. Rankin: And I don't know if --

Justice Felix Frankfurter: As far as you're concerned, are you -- are you going to present to the Court or do you conceive that to be a problem before the Court whether assuming everything you say about equitable matters, the legislation of the other there, 1960, does authorize that the Constitution constitutionally permit a decree to the end of -- in this suit and the case goes back on the merits against the State?

Mr. Rankin: The United States has taken the position that this Court should not now reach constitutional questions.

And we only ask that the Court reach the question if the statute is explicit.

We point out the legislative history as such that there was no issue about this provision.

There -- the explanation was by the Attorney General and the Deputy Attorney General that it was conceived that the United States had this power under the 1957 Act as it was but that it was to make it explicit and to have no doubt about the matter that it was now included in the Act.

And I don't think anybody will contend that it isn't there but we think the constitutional questions -- questions are properly reserved to consideration when the matter comes before the lower court again.

Justice Felix Frankfurter: All you're asking is that the decree of dismissal be -- be reversed and the case go back as a case on the pleadings solely against the State.

Mr. Rankin: I would appreciate the Court's saying explicitly that the statute does provide for the State to be made a party and I think that's proper since it isn't a --

Justice Felix Frankfurter: For the State to be retained as a party.

Mr. Rankin: Excuse me, yes that's correct.

Justice John M. Harlan: Could I ask you a question?

You expressed the general equity of principles as testifying the application of the statute to the existing action.

Do you think that such section can be read, the -- the amendment into Subsection (c) can be read as explicit -- explicitly providing for that?

It refers to any proceeding instituted under Subsection (c), Subsection (c) existing before the amendment.

Mr. Rankin: Well, it seemed to me that under Subsection (c) would be the authority for the bringing of any action of any kind and that is what this proceeding is.

Justice John M. Harlan: That's what this is.

Mr. Rankin: And then this authorizes the State to be made a party --

Justice John M. Harlan: Yes.

Mr. Rankin: -- in such a proceeding.

Justice John M. Harlan: Yes.

Mr. Rankin: And the State -- it's under your -- the decisions of this Court.

The lower court would examine the situation at the time --

Justice John M. Harlan: Why do you have to go to that?

That's my question.

Why doesn't the section provide for that?

Well, I get the same result either way I grant you but it seems to me the statute is clear that it applies for international.

Mr. Rankin: Well, I -- the United States so contends, too.

I --

Justice John M. Harlan: But you didn't mention it that the reason --

Mr. Rankin: I'm sorry, I overlooked that.

Chief Justice Earl Warren: Mr. Solicitor General, do you have any reason to believe that counsel for the respondent agrees or disagrees with your proposal to dispose of the case in this manner?

Mr. Rankin: Mr. Chief Justice, I don't know about that.

I'm sorry that --

Chief Justice Earl Warren: Well then, I don't want to --

Mr. Rankin: We haven't been able to canvass that --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Rankin: -- but because of the fact that the signing hadn't occurred.

It's a little --

Chief Justice Earl Warren: Yes.

Mr. Rankin: -- difficult for us to deal with the problems --

Chief Justice Earl Warren: We understand that.

Mr. Rankin: -- simply.

Justice Felix Frankfurter: Well, I think that for -- I noticed you're going to quarrel that, isn't it?

I feel you're about to close your brief.

I assume you -- you've said all there is to be said in the opening with all of them.

Mr. Rankin: That's what we think is all that's left to the case now.

Chief Justice Earl Warren: Yes.

Thank you.

Thank you.

Mr. Madison.

Argument of Gordon Madison

Mr. Gordon Madison: Mr. Chief Justice Warren and Honorable Members of this Court.

We came to prepare to argue with two different parts of this case.

One related to the right of the United States to sue the respondent, Rogers and Livingston who at that time the suit was filed had resigned under Alabama law, had resigned under the common law.

Their resignations had been accepted.

They had accepted other officers of profit under the State and that part of the argument had fallen to me.

The other part of the argument was to be presented by Mr. Hare, Assistant Attorney General of Alabama which dealt with the right of the United States on the 1957 Civil Rights Act to bring a suit against the State of Alabama, more specifically, whether a District Court had jurisdiction of such a suit under the 1957 Act.

Now, Mr. Rankin's secretary called our office on Friday and relayed to me the substance of a memorandum or note which he has written to the Court, as they had to learn you could do that.

And we were furnished with a copy when we arrive here, Sunday afternoon, at our hotel.

And in order to properly analyze the ramifications of what we might do here today in this argument or what we might agree to on the assumption that the President will sign the law, I believe he will.

But as of today, it is not law and we don't know what he will do.

So far as -- as that the Court will bear with me a few minutes, I would like to point out because I don't know what you all will do, will you with agree the Solicitor General, which of it?

That under the statutes of Alabama, that all officers where they may hold office or shall hold office or not, have the right to vacate those offices by resignation, the statute set forth in our brief.

Now, a little difference for the common law in that that there has to be no acceptance by the appointing authority.

But here in this case, there wasn't acceptance.

So, even the Alabama law and the common law has -- has been complied with by the acceptance of those resignations.

And in addition thereto, the very statute which permits their appointment and which says that they may hold office as Registrars for a period of four years until their successors are elected and qualified, substance of it.

Also provides that they may be removed at anytime for any cause by the appointing authority which the Governor, state auditor and the Commission of Agriculture and Industries.

Attached to these pleadings and to our motion to dismiss and to a motion which we filed -- our answer we filed in response to a motion to produce certain records is in affidavit by each of the respondents, one, Rogers and the other, Livingston in which it set forth all the facts to show that they did resign.

The resignations were in good faith.

They accepted, by the proper authority that a -- in addition had been removed from office by those appointing authorities or authority and had assumed other offices of profit.

And under the Constitution and laws of the State of Alabama both, you are prohibited from holding two offices of profit on the State at one in the same time.

Now, there had been some suggestion in the brief about that the resignations were made in bad faith.

There's nothing like that.

The whole argument was based on the assumption that they did not become effective until the appointment of their successors or -- or resignation --

Justice William O. Douglas: I think that that on what the Solicitor General said that the Government of United States is willing to go ahead with the litigation without these two respondents.

Mr. Gordon Madison: Well, that brings a lot of questions, Mr. Justice Douglas.

Since you asked me that point blank I think rather if you go to assume that the case is going -- become -- I mean the act, it won't become law, we don't deal with it on that basis.

That I'd rather think on the short period of time that I've had that the -- the rather unusual case of Rice versus Sioux City Cemetery involving, I believe Mr. -- Mr. Justice Frankfurter held the opinion of the --of the Court.

And now the Chief -- Mr. Chief Justice and Mr. Black, Mr. Douglas dissented but the reason for that dissent is not present here.

And it could be well said that the writ will be improvidently granted in this case and you sent back to the lower court -- not sent back to the lower court but the Government filed a new suit under this new act as it passed.

We will then have an opportunity to plead to the constitutionality of it.

The only difference, they may have one ready now, as far as I know, assuming the President signed it, they could file it.

There'll be only a short period of delay and it seems to me that it will preserve better everybody's constitutional right, the State -- or to raise a constitutional question.

So, during the short period of time that we -- or I may say I have, that my colleague may have some other notions.

But it seems to me that that case which was reported 349 U.S. 70 would have some direct application and bearing on what should be done here.

Chief Justice Earl Warren: Well that is --

Justice Potter Stewart: (Voice Overlap) --

Mr. Gordon Madison: (Voice Overlap) and either way it goes, we won't have to respond (Inaudible)

Chief Justice Earl Warren: Well, that case having been merely dismissed if the Government does not proceed -- try to proceed further against your clients that, only against the State.

There -- there wouldn't be any -- any bar to your raising every constitutional question down there, would there?

Mr. Gordon Madison: If Your Honor will say that this Nineteenth Amendment to 1957, Civil Rights Act --

Chief Justice Earl Warren: Yes.

Mr. Gordon Madison: -- give them a right to proceed against the State, can we raise any constitutional questions in that Court.

And if you said that, you have to give me some concern.

Alright --

Chief Justice Earl Warren: Well, --

Mr. Gordon Madison: -- Mr. Justice Frankfurter pointed out but regarding all those (Voice Overlap) --

Chief Justice Earl Warren: I don't think -- I don't think that the Solicitor General has asked us to hold it in this case that -- that in -- in his present posture that the 1957 Act so provided.

He is relying on the 1960 Act.

Isn't that correct of Mr. Solicitor General?

Mr. Gordon Madison: Well, suppose the 1960 Act is unconstitutional as a whole.

Chief Justice Earl Warren: Well, that's -- that's what -- that's what you can raise down below, cant you?

I see no --

Mr. Gordon Madison: Will there be any question if you do such a thing as that in this Court even if you should hold that, that's proper way to get rid of it.

Will there'd be any question whatsoever that we have the right to attack the constitutionality of the 1960 Amendment in the District Court in Alabama?

Chief Justice Earl Warren: Well, I -- I took it from the Solicitor General that he made no such contention that he felt he would open to that.

I may ask the Solicitor General.

Rebuttal of Rankin

Mr. Rankin: Mr. Chief Justice and the Court, the position of the Government that the Court should not go into the constitutional questions here and if those would be handled in the lower court and that when they are raised as though it was ab initio.

Chief Justice Earl Warren: Yes.

Mr. Rankin: (Voice Overlap) --

Chief Justice Earl Warren: That's the way I understood your position.

Now, do -- do you feel you're under any limitation in those circumstances?

Rebuttal of Gordon Madison

Mr. Gordon Madison: If Your Honor, please, I don't speak for the -- I'm one of the assistants in the Attorney General's office and Attorney General will know that.

Chief Justice Earl Warren: Yes.

Mr. Gordon Madison: And when it comes to the matter of telling this Court what we're willing to do or not do to, you'll have to do like you do in so many Senate hearings you have to adjourn for while for conference [Laughter].

Chief Justice Earl Warren: And --

Mr. Gordon Madison: I will say through this though, there is something about this 1960 Act that somebody needs to go into whether it's ever held constitutional or unconstitutional or whatnot.

Now, I'm just an ordinary lawyer who deals -- that deals into constitutional matters all the time.

I -- in my 27 years of practice -- the general practice of law before going into the Attorney General's office, I had to take the rough-and-tumble as it comes and goes.

And it just keeps in my mind, he has master and a servant.

And the master giving specific instructions just exactly like our Board of Registrars would give the State of Alabama, “In a constitutional argument, you must do it this way, you must not discriminate on the basis of race or color or anything else.”

And now, here comes saying and says that when the Board of Registrars does that, it shall be deemed action of the State.

In other words, the servant act the way -- and beyond the scope of employment, scope of the story, scope for everything else.

And you say that's deemed to be the action of the State.

There are lots of questions to be -- to be -- that brought these things that needs some more answers too and I have mine.

Chief Justice Earl Warren: Well, the point -- point is that -- that those should be raised down below and they should have the scrutiny of the District Court and then have the scrutiny of the Court of Appeals before they come to us.

Because it is not our practice and -- and I don't think you would urge that upon us would you, to -- to take the constitutional questions, ab initio in this in this -- in this Court without getting (Voice Overlap) --

Mr. Gordon Madison: I would urge you not to do so, Your Honor.

Chief Justice Earl Warren: I beg your pardon?

Mr. Gordon Madison: That I would urge you to do so.

Chief Justice Earl Warren: Yes.

Well, that -- I -- I would think that that proposal of the Solicitor General would -- would then give the right to the lower courts to do exactly that thing.

Mr. Gordon Madison: Now, his -- his proposal is made in the light and he must take that in consideration in here in what we should do.

That we won this case before the District Court and we won it in the Fifth Circuit Court of Appeals.

Chief Justice Earl Warren: Yes.

Mr. Gordon Madison: Now, we'd like courts and stay in one.

[Laughter]

Thank you.

Chief Justice Earl Warren: Mr. Hare.

Argument of Nicholas S. Hare

Mr. Nicholas S. Hare: Sir, I have only one thing to argue or rather to add.

I think the -- the case now has become one that it is abstract.

My argument which was devoted to showing as best I knew how, that the State of Alabama could not have been made a proper party under the 1957 Amendment, is no longer before Your Honors in view of the statement of the counsel for the other side that he is willing to rest completely on a speculative possibility that the new act may become law.

So, that reason -- nothing really for me to argue with reference to the inapplicability of the 1957 Amendment to an injunction against the State.

Justice Felix Frankfurter: How much of a speculation do you think it is?

Mr. Nicholas S. Hare: Well I noticed that the N.A.A.C.P. is greatly distressed about it being only half a loaf and would apparently prefer that the half loaf be rejected in the hope of getting a full loaf.

Justice Felix Frankfurter: But that's not within their power even to sign it to veto.

Mr. Nicholas S. Hare: No, but they seem to have considerable voice.

Justice Felix Frankfurter: At least you are not joining their field, are you?

Mr. Nicholas S. Hare: No, sir.

Now, that the point -- the point which I wish to make is this.

That in this particular argument, in this particular decision which addresses itself to this Court which is in the nature of a review of two lower court opinions, and not anything really not to review something that is speculated that we are arguing on today.

If this case, this argument and the case itself has -- if not become moot has become one of limited importance.

Because assuming that the new law will come into effect, they will travel under the new law, some aspects of the new law which were entirely different from the old like the referee, the referee section which enables the District Court to appoint referees to oversee voting registration.

Now, that in itself might make it inappropriate to take such an unusual step as enjoining a State in a governmental function.

It may not be necessary to enjoin a State.

And the only prayer in the present bill is a prayer for an injunction which apparently has mandatory injunction effect.

But it's not necessary.

It won't be necessary under the new bill.

They can -- they can get all the relief they want by the voter registrar section of the new bill.So the point of it is, there are so many things to be considered that it -- it seems to me like this Court could well say that due to the intervening circumstance, that is a passage of this law, and due to the present limited, very limited importance of this particular case because it couldn't affect another case anywhere in the United States anymore.

Because of -- assuming the new act will pass, whether or not the State under the 1957 Amendment could be made a party would never arise again.

So I say due to this limited importance now, the Court should exercise its discretion as it has done many times in the past and in particular, the case which my associate mentioned, Rice versus Sioux City Cemetery where they said, “Due to the isolated significance of this particular piece of litigation, the writ of certiorari was deemed to be improvidently granted and the writ was denied.”

Justice Felix Frankfurter: But surely there's a decisive difference between Rice and this case.

In Rice, the -- there was no such situation of a new statute concerning the claim that was ambiguously urged or ambiguously sustainable under the prior situation.

But here is a confirming statute --

Mr. Nicholas S. Hare: A confirming statute.

Justice Felix Frankfurter: -- a view of the Government --

Mr. Nicholas S. Hare: From the view --

Justice Felix Frankfurter: -- that confirming the statute, the Government have argued a basic complaint as far as the State is concerned on an argumentative -- on an a elaborate argumentative.

Of course, the brief, the -- that the State is impliedly covered in the reach of the 1957 Act.

Along comes Congress and I quite agree with you, at the moment, we are talking about a -- a measure that isn't law though I think it's very real to assume it will not be law without -- within not more than ten days from whatever today was and doctrine was just put on further, instead.

And this is confirming legislation that so often we've had in the past an affirming legislation taking away the ambiguities of litigation.

Mr. Nicholas S. Hare: Your Honor, with reference to the Sioux City Cemetery case that Your Honor is more familiar with than any other living human beings since its -- to you maybe --

Justice Felix Frankfurter: Just a little of accounts of the loss of memory by an old man.

Mr. Nicholas S. Hare: [Laughs]

In that case it was interesting that a statute had been passed after the beginning of the suit.

Justice Felix Frankfurter: Yes.

Mr. Nicholas S. Hare: And to that extent, it's just about as close as you'll find one, but --

Justice Felix Frankfurter: What the statute did is against -- one of the statutes did in the relation of the second related statute to the prior situation makes all the difference.

Mr. Nicholas S. Hare: Now, but we take the position that the -- this could not be a confirmatory -- could not be a confirmatory action because the Fifth Circuit Court of Appeals, the last word on the subject had sustained the lower court.

That the State could not be made a party and that was the status of the law prior to the argument before Congress.

So it's a new thing.

It's a new thing.

So in effect, this might -- you might say the law, assuming that it becomes a law, does permit in same instances, suit against States.

In same instances, we will -- we -- we must be sure that the particular bill of complaint or the particular complaint that they have is applicable to this particular new section.

So, that's why we feel that the case should be started over completely.

It won't be in a hardship as we see it to anybody.

Justice Felix Frankfurter: I wonder if you adhere to a State whether you would deny that on its face, 42 U.S.C. 1971 (c) on its face, I'm not -- not requiring to questions of constitutionality but on its face that is a congressional authorization for making the State a party.

Mr. Nicholas S. Hare: You mean form the old Act of the 1957 Act, sir?

Justice Felix Frankfurter: No, no, no.

I mean of 1960, no, no, no.

The 1957 argument --

Mr. Nicholas S. Hare: It -- it's this specifically.

Justice Felix Frankfurter: The 1957 Act is a debatable act.

Mr. Nicholas S. Hare: Yes, sir.

Justice Felix Frankfurter: And my question is whether you're here to state whether the 1971 (c) --

Mr. Nicholas S. Hare: That's what is --

Justice Felix Frankfurter: And move, takes that out of debate and is explicit.

Mr. Nicholas S. Hare: We say, sir that that does -- that is explicit, now.

However, it does not raise the question.

It doesn't go to some of the essential questions such as, does that confer jurisdiction, only a District Court could do that.

Chief Justice Earl Warren: The Act says so, doesn't it?

Mr. Nicholas S. Hare: That's right.

Well, -- well then does it remove original jurisdiction from this Court to do that?

Justice Felix Frankfurter: Well I mean does that --

Chief Justice Earl Warren: That's a constitutional question.

Justice Felix Frankfurter: That's right, a constitutional question.

So that, there are so many aspects of it, Your Honor.

It's almost difficult to debate extemporaneously and that's what we are asked to do today where this is a -- came as completely as a surprise to -- to us, I might say, because we expected to -- to argue the case as it had been presented by the questions and brief.

And we -- but we do urge that in view of the changed circumstances, this particular case is no longer, will be -- it will no longer be controlling on the broad scope of the law.

Is -- it will be controlling only as far as these particular parties are concerned and it has no -- has no national scope or significance.

And we feel like that no hardship would be done, anyone by dismissing the writ of certiorari because if they have a valid case and intend to push it which I'm sure that they intend to push from they said today, they can bring it over again.

If we have a right to plead to this -- in the same suit below again, no additional time it seems to us, would be lost at all except just the time of the filing of the first -- the first suit.

Chief Justice Earl Warren: Mr. Solicitor General.

Rebuttal of Rankin

Mr. Rankin: Mr. Chief Justice and may it please the Court.

All I'd like to say about the fact of our memorandum being so late is that I think that none of us in the case should be surprised at having to deal with and contemplate the effect of the Civil Rights Act of 1960.

And as soon as it was passed by the Congress and we had reason to believe that the President would sign it.

Then it seemed to me it was the duty of our office and also counsel on the other side should be considering the matter to see if they could advise this Court as to how the matter should be disposed of in -- in the light of those events.

Because it had changed the situation so materially that this Court should not have to be burdened with an examination of a situation that was so materially changed that it wasn't the same.

And in light of that, while we could only file it when we did on Friday, we were considering the matter earlier as soon as the Congress had acted and I would think counsel on the other side should too.

And with the constitutional questions and all of the rest of it left to the trial, the only thing we ask the Court to do now is to say what the Court has done before in the past, no factual problem about it all, does this statute or does it not say that a State can be made a party in such a proceeding?

And we shouldn't have to face another appeal and delay in regard to the problem of that simplicity.

I don't think that if counsel were just given many weeks, he could figure out many arguments as to whether the statute does or does not say that very thing and that's all we ask.

Chief Justice Earl Warren: Is there anything further gentlemen?

Very well.