UNITED STATES v. BARNETT
Legal provision: 18 U.S.C. 402
Argument of Archibald Cox
Chief Justice Earl Warren: Number 107, United States, Petitioner, versus Ross R. Barnett et al.
Mr. Solicitor General.
Mr. Archibald Cox: Mr. Chief Justice, may it please the Court.
This case is here on certificate from the Court of Appeals for the Fifth Circuit.
I shall present the opening argument on behalf of the Untied States and Mr. Leon Jaworski, who was the counsel in the court below by special appointment, will make any rebuttal.
The question presented is whether the defendants were charged with criminal contempt of court or intentional violation of an order of the Court of Appeals, are entitled to trial by jury.
Defendants claim a jury on two grounds.
By statute, under the provisions of the United States Code that provides for the trial of certain contempt charges by jury when the contemptuous acts are also crimes, and second by the Constitution.
Our answer to the statutory claim will be that it is effective for two independently sufficient reasons because the statute by its terms is applicable only to contempt to an order of a District Court and this was an order of a Court of Appeals, and second because the statute expressly accepts charges of violation of an order entered in an action maintained by the United States, and this in our view was such an action.
Our answer to the constitutional claim is that the trial of contempt charges by the Court for the charges violation of the Court's order addressed to the -- to a party, has been in the established part of our constitutional law since the founding of republic.
The legal issues arise because the Governor, the Lieutenant Governor of the State sought to arise -- to have array the whole colloquy of the State against a final adjudication by the federal court.
The contempt with which they are charged caused rioting, loss of life and the need for federal troops to uphold the law of the land on the campus of the University of Mississippi.
We're not concerned here with the details of those tragic events, but a careful understanding of the incidents leading up to the entry of the order in precedent and to its violation is essential to understand both how the United States came to seek this order and also why it was entered by a Court of Appeals rather than a District Court.
For that reason, I want to take some little time carefully to state the sequence of events leading up to the order.
In January, 1961, James Meredith applied --
Justice William J. Brennan: I missed you Mr. Solicitor General, for what reason are you going to go into this?
Mr. Archibald Cox: Because I think I'm concentrating on the facts insofar as they show first, how it came to be that the United States sought this order for violation of which United -- Barnett is charged with contempt and second, how the order it came to be made by a Court of Appeals rather than by a District Court.
I think that both of those becoming important in the discussion of the legal argument, but I shall try to confine myself to the facts so far as a deal with that did not go into the extraneous events.
In January, 1961, as I have said, James Meredith applied for admission to the University of Mississippi at a term beginning in February.
In May, after a long delay in getting any answer from the University and a final rejection, he filed a complaint in the District Court alleging that he was the victim of racial discrimination.
The case then wound its way through the courts including a four-month delay by the District Court in acting upon a motion for interlocutory relief, preliminary relief after the hearing on that motion had been completed.
On June 25th, 1962, the Court of Appeals handed down an opinion, finding that Meredith had been the victim of racial discrimination and directing the entry of an injunction requiring the University officials to admit Meredith.
The mandate issued in due course on the 17th of July.
On July 18, Circuit Judge Cameron, who had not been a member of the panel, issued a stay of the mandate that had already in fact gone down.
The panel of the three judges who had heard the case then invited briefs from the parties on the question of the stay and later filed on July 27 an opinion vacating the order of Judge Cameron.
The panel also recalled the mandate and amended it to set forth specifically the exact terms of the injunction to be entered by the District Court requiring Meredith's admission to the University.
In addition, the Court of Appeals issued its own injunction requiring the trustees and University officials to admit Meredith and to refrain from discrimination and respect to his continued dependence.
Twice more than Judge Cameron issued a stay and as many times, they were vacated by the panel, but he issued a third stay.
The private plaintiff brought the case here.
Justice Black vacated all the stays and on September 13, 1962, the District Court finally entered an injunction in accordance with the mandate of the Court of Appeals.
The full term that --
Justice Potter Stewart: Was Mr. Justice Black's order itself in the nature of an injunction?
Mr. Archibald Cox: It was in -- it was in the nature of an injunction in addition to vacating the stay, good as I recall up until the District Court had entered the mandate.
I don't think it's purported to go beyond that point.
Justice Potter Stewart: So, it had the -- any conduct here was not even arguably any contempt of (Voice Overlap) --
Mr. Archibald Cox: I would think not, not only for that reason but probably also because Justice Black's injunction was limited to persons acting in active concert with the named defendants and at least, the contempt -- contemptuous act charged in the eventual citation here were actually could not be said to be an act of concert or participation with the University trustees.
Indeed, they were designed to support the University trustees from doing what they had agreed to do when the question was brought (Inaudible).
So, I think we would have a very hard time for both reasons.
I mentioned and wish to emphasize it because events began to move very fast at this point that the full term of the University was to begin on September 20.
And since Meredith was a transfer student, that not -- not only was the first day on which he might register but it was the proper day for him to register at the University and begin attending classes a little later.
On September 16th, Governor Barnett moved to block Meredith's enrollment by issuing a proclamation of interposition characterizing the decree of the federal court as a direct usurpation of power by the Federal Government and directing all State officials to disregard it.
Let me emphasize that this in all subsequent acts of Governor Barnett were not simply defiance by a single individual.
It was action by the Governor of a State seeking to nullify the injunction by arraying against the full power of the State.
The public officials and the police as well as all the members of the party list that he could arise.
What had been a private lawsuit up to that point was thus converted into a deliberate challenge to the supremacy of the Constitution and the adjudicatory powers of the federal court.
Accordingly, on the 18th of September, the United States applied to the Court of Appeals for an order permitting henceforth to participate in all proceedings in either the District or the Circuit Court.
The Court of Appeals declined to act until it ascertained from the District Judge but the District Judge would not enter the order requested by the United States.
The appellate court then entered an order permitting the United States to participate as it requested in either court and gave it the right to initiate further proceedings, including proceedings through injunctive relief such as might be appropriate in order to preserve the due administration of justice and the integrity of the judicial processes of the United States.
Justice John M. Harlan: General, was the Government's application -- an application would be admitted as a party or as a friend of the Court?
Mr. Archibald Cox: Well, it -- it spoke of being admitted as amicus curiae, but it also stated expressly what it wished to be given permission to do.
And the permission was not only to file briefs and to prevent argument, but to initiate such further proceeding, including proceedings for injunctive relief and including proceedings in contempt as it might be necessary to uphold the integrity of the law.
We take that the --
Justice William J. Brennan: Well, Mr. Solicitor -- might that have been done in an original action?
Mr. Archibald Cox: I suppose it might.
We think this was an independent ancillary action --
Justice William J. Brennan: Tantamount to a proceeding.
Mr. Archibald Cox: Tantamount to a proceeding initiated by the United States.
Justice Tom C. Clark: It was in the name of amicus, wasn't it?
Mr. Archibald Cox: The label as amicus curiae was there but the order -- perhaps I make it clear.
The order contains these operative parts and I would think the operative parts spoke more effectively than any label that was put on it.
Justice Arthur J. Goldberg: Did the Court of Appeals (Inaudible) original action of the United States?
Mr. Archibald Cox: Not of -- not of an original action.
No, I was thinking more of a character and proceeding in the manner of jurisdiction.
It had an ancillary jurisdiction.
I think it might also had an original jurisdiction -- had a jurisdiction even though not ancillary in this sense, Justice Goldberg.
It consulted with the District Court.
The District Court had made it plain that it would not grant the relief.
Therefore, the Court of Appeals was exercising reviewing, a revisory jurisdiction, not by direct appeal, but under the oral writ statute which of course has done in many cases where there is urgency, but if it was original, it would of course have to have been first in the District Court.
On September 19, after the Government obtain --
Justice John M. Harlan: May I ask you one more question?
I'm sorry to interrupt you.
Was the -- was the Governor given an opportunity to be heard in opposition to the Government's application relief to intervene?
Mr. Archibald Cox: Not at that time.
The Governor at that time had not been brought in as a party.
He was not brought in as a party until the --
Justice John M. Harlan: Right.
Mr. Archibald Cox: -- early -- on the 24th and 25th.
This in effect simply set the stage for the United States to come and apply for such orders as it might be necessary to deal with this challenge to the authority of its courts.
On September 19, that's one day before Barnett was due to register at the University, a state court issued an injunction directing Meredith not to enter and requiring the University officials not to register and enjoining numerous federal officials including those in the Department of Justice and the United States Marshals from doing anything intended to enrolling at the University as a student pursuant to the decrees of the Court.
The federal officials then removed that case in the District Court and asked the District Court to dissolve the injunction.
Also, Meredith as I have said was scheduled to enroll at the University the next day on the 20th, the District Court denied -- refused to act promptly on the motion and set it down for a hearing on September 24th after at least three in most of the fourth day, possible day for enrolment had expired -- had passed.
On the 20th, in the morning, the United States also applied to the District Court for a temporary restraining order prohibiting Meredith's arrest for a local offense and rejoining the implementation of a state statute just passed which made it a state crime for anyone to enroll Meredith or to attempt to enroll him pursuant to the decree.
The United States sought an injunction against the enforcement of that statute.
The District Court enjoined Meredith's arrest, but it again declined the further relief that was necessary to implement the mandate of the Court of Appeals that there'd be no discrimination in the enrolment of Meredith which was to take place on September 20.
Again, it set the hearing for September 24th after their mandate would have been forwarded for at least three days.
Later on September 20th, the United States applied for the necessary orders in the Court of Appeals.
That Court, as it states in its certificate, required Government counsel to offer the District Court a second opportunity to take steps to implement mandate, the earlier decree.
But when the District Court again refused to act, the Court of Appeals issued its own temporary restraining order enjoining enforcement of the state statute and enjoining enforcement of the state court decree.
Still on September 20th, Meredith attempted to register at the University and then he was rebuffed by Governor Barnett from the trustees who named as registrant.
The United States then moved to the District Court to cite certain administrative officials of the University with Chancellor, the Dean, the Registrar in civil contempt.
The hearing was held on September 21st and on that day, the District Court dismissed the citation.
Justice Tom C. Clark: What order was that based on, the civil contempt on what order?
Mr. Archibald Cox: That would have been based on the original decree of the District Court if my memory is right.
Justice Tom C. Clark: Within the Court of Appeals.
Mr. Archibald Cox: No.
That proceeding was in the District Court.
The proceeding I just mentioned was in the District Court.
Justice Tom C. Clark: And the District Court decided it for civil contempt.
Mr. Archibald Cox: Yes.
And the District Court dismissed the citation.
Justice William J. Brennan: Now, it would not have been the order I think that entered in the District Court after Mr. Justice Black's statement.
Mr. Archibald Cox: On the merits, yes.
Now, we did also apply on September 21st to the Court of Appeals for an order requiring the Board of Trustees to show cause by its members should not be held in civil contempt.
After the District Court had denied relief in the proceeding against the administrative officials, the proceeding in the Court of Appeals was broadened to include the administrative officials.
At the hearing on that application, on September 24th, the Board of Trustees and the Registrar now being squarely faced with an adjudication of the Court of Appeals, directed to them indicated that they were ready to comply with the Court decrees.
And the Registrar announced that he would be available in Jackson, Mississippi at 1 p.m. on the 25th of September, that would be the next day, to register Meredith.
On that same day, the 25th -- excuse me, the 24th, the arrangement proposed by the trustees was embodied in a specific order of the Court of Appeals, requiring the Registrar and the Trustees to register Meredith the next day at 1 o'clock.
That same evening, after learning that Governor Barnett had again declared his intention to prevent Meredith's registration, the United States applied directly to the Court of Appeals which had been proceeding with the cause that very afternoon for a temporary order restraining Governor Barnett, his agents, and employees, and so forth from obstructing Meredith's enrolment and his continued attendance at the University.
It's for the alleged violations of that order of September 25th, directed specifically to Governor Barnett that the defendants were later charged with criminal contempt.
On September 25th, Barnett, after service of the order physically barred Meredith from restraining at the Jackson office of the University.
Justice William J. Brennan: Now, excuse me Mr. Solicitor, this is an order of the 25th of the Court of Appeals?
Mr. Archibald Cox: Yes.
Justice William J. Brennan: Now, was that ever followed by any -- the entry for any order in like terms in the District Court?
Mr. Archibald Cox: No, sir.
That was the only order ever directed expressly to Governor Barnett and it was made in the Court of Appeals which on that very afternoon, had been -- had the cause before it, and which had arranged for the registration of Meredith in a specific order entered that afternoon -- the afternoon before, excuse me.
Justice William O. Douglas: Who moved that order?
Mr. Archibald Cox: The United States sir.
Justice William J. Brennan: And it's for contempt for the (Voice Overlap) --
Mr. Archibald Cox: For the violation of that order that this --
Justice William J. Brennan: The civil contempt proceedings, were on the order entered in the District Court --
Mr. Archibald Cox: That's correct.
Justice William J. Brennan: -- much earlier.
Mr. Archibald Cox: Yes.
Justice William J. Brennan: And the criminal contempt proceedings are simply and solely on this order (Voice Overlap) --
Mr. Archibald Cox: On this order, which is I emphasize the only order ever addressed to Barnett except for subsequent one making that same more to more permanent.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: Under Rule 65, those are limited to persons acting in active concert or participation and as I have suggested a moment ago, you see here the named defendants were read.
They had been faced with the questions squarely and they had yet said, '"Yes, we will comply with the law of the land."
And then Governor Barnett came and prevented them according to the allegations from doing what they were attempting to do under the decree and we would surely have a very difficult time under those circumstances in ordering that he was an hater or (Inaudible).
Rule 65 was intended to cut down the sweeping decrees that used to be issued as both Your Honor and I know well, it lubricates the likelihood.
It was intended to limit and it requires of participation with the named defendants.
On the 25th, as I have said, Barnett physically barred Meredith from registering with notice of the order and the next day, Lieutenant -- Lieutenant Governor Johnson did the same thing.
Those two Acts on the 25th and 26th, formed the basis of the first specific charge of criminal contempt against these two defendants.
On the 27th, Meredith started for the campus, but was turned back because according to the subsequent charges, Barnett and Johnson willfully failed to take measures necessary to preserve law and order at the University and instead, encouraged the state highway patrol and various deputy sheriffs -- sheriff to prevent Meredith's entry.
Now, the incidence of that day formed the basis of the second specific charge of criminal contempt.
On the 28th and 29th of September, Barnett and Johnson were found in civil contempt and ordered to stand committed and to pay fines.
And less before October 2nd, that would be the following Wednesday, they showed that they were in full compliance with the Court's decree and intended to comply in the future.
On Sunday, September 30, after the civil contempt procedure, Meredith entered the campus in one of the buildings by arrangement of the Governor.
As it's well-known, a large crowd gathered and rioting began.
The state highway patrol and the large number of sheriffs, deputy sheriffs were present but they failed to act.
It was violence upon a tragic scale.
The President of the United States then dispatched military personnel to Oxford to restore order.
The third specification is that Barnett knowing that the failure of the state highway patrol to maintain peace and order under campus on that day would result an obstruction of the injunction nevertheless, in violation of his obligation under the order of September 25th, willfully failed to exercise his authority to maintain law and order.
Two later incidents should be mentioned.
On October 2nd, Barnett's attorneys appeared back in the Court of Appeals and stated that the Governor was in full compliance with the order of September 25th and intent would comply in the future to the extent of his ability.
On October 17th -- October 12th, counsel retracted the statement that Barnett intended to comply with the orders of the Court.
A week later, they asserted that the Governor reserved the right to determine whether compliance with the orders was consistent with his position is Governor of Mississippi.
And on the same day, the Court, all seven judges sitting unanimously denied motions to resolve -- to dissolve the restraining order.
With Barnett and Johnson, refusing to give assurances of compliance, the Court of Appeals instructed the Attorney General to institute proceedings for criminal contempt.
On the subsequent proceedings in the Court of Appeals, it suffices for present purposes since the case is here on certificate to say that the defendants did properly raise the claim of a jury trial.
The Court of Appeals heard the argument en banc.
The judges being evenly divided on defendant's right to a jury trial, they certified the question to this Court.
The first question then is whether the governing statutes provide for trial by jury or trial by the Court.
18 U.S.C. Section 402, which is printed on page 58 of the Government's brief provides, I'll skip the unimportant words, any person willfully disobeying any lawful writ, etcetera, decree or command of any District Court of the United States, or any court of the District of Columbia, by doing any act or thing, therein or thereby forbidden.
If the act or thing so done, it will be such a character as to constitute a criminal offense shall be prosecuted for such contempt as provided in Section 3691 of this Act.
The next paragraph makes an exception for any suit or action brought or prosecuted in the name of or on behalf of the United States and then it goes on to provide that the accepted cases and all other cases of contempt not specifically embraced in this Section, shall be punished in accordance with the prevailing usages at law.
Justice Byron R. White: Mr. Solicitor General, when did the -- the Act -- the Governor (Inaudible) accept, when did they become crime under some other laws?
Mr. Archibald Cox: They became crimes under a -- the Civil Rights Act of 1960 I think it was.
Following the events in the Casper case in Tennessee and the events at Little Rock, a statute was enacted making obstruction on the decrees as federal court's crime.
Justice Byron R. White: So that if this was occurred anywhere in the 1950s under this statute, there will be no right (Voice Overlap) --
Mr. Archibald Cox: There'd be no possible right under the statute and while we don't make anything as prior to Your Honor so we're glad too.
It is -- this of course was quietly reverse of what the Clayton Act was directed at.
But the Clayton Act was directed to dissolve some batteries, fights on the picket line, trustees of the property, or things normally doubt with the breaches of peace of which the sweeping labor injunctions ran against and which were then privately prosecuted without a jury.
Here, the just of the offense is the challenge to the adjudicatory powers of the Court.
Justice Byron R. White: But you make no -- say you make no suggestion I take it that (Inaudible) were not (Voice Overlap) --
Mr. Archibald Cox: We -- we have -- I don't display how many help I can get but we don't predicate in the argument on that.
We have assumed that so far as that goes, they have been made crimes and that therefore so far as that point goes, Sections 21 and 22 of the Clayton Act would be applicable here.
Justice William J. Brennan: I -- I gather this argument you're now making Mr. Solicitor is on the premise that this was another Court of Appeals order that was violated, whether District Court order?
Mr. Archibald Cox: No, no.
I'm just about to submit that this case is not covered by Section 402, first, because Section 402 applies only to charges of contempt to a decree of a District Court.
Justice William J. Brennan: Just by (Inaudible)
Mr. Archibald Cox: Just by one sentence with that Commission.
The words of the statute that speak only of any person disobeying any decree or command of any District Court of the United States or any court of the District of Columbia.
Section 3691 to which Section 402 refers you, provides whenever a contempt charge will consist of willful disobedience of any lawfully writ and so forth, of any District Court of the United States.
Now, there's no possibility that the use of the words District Court resulted from some inadvertence or mistake of the compilers.
Sections 21 and 22 of the Clayton Act from which they were derived also speak of the -- of the same words of any District Court of the United States in both Sections.
Now furthermore, in Section 20 of the Clayton Act, which deals with certain acts that may not be enjoined by federal courts, the term used is any court of the United States.
Now, the contrast again emphasizes that it was not inadvertent.
And if there were any doubt in few of the words, the legislative history would dispel it represented in Clayton.
Let me backup one step.
The early bills proposed by Representative Clayton and this all began with the 1896 presidential campaign applied to all courts of the United States except the Supreme Court.
Then, at the first Congress to pass in 1912, the bill recommended by the Judiciary Committee was limited to the District Court.
Now, Representative Clayton explained this on the floor.
He spoke of the criticisms of his earlier bill and showed how they've been meant.
He said the next criticism was that it provided for contempt in courts where there were no jurors.
We answered that by confining the operation of this bill to the Circuit Courts.
He obviously meant the old Circuit Courts which issued many labor injunctions.
And we exempt its operation in the courts of appellate jurisdiction, and there were similar statements by other members of the Judiciary Committee.
In 1912, the Clayton contempt bill passed the House Representatives but it was defeated by the Senate.
After the new administration took over, however, the provisions were included in the broader Clayton bill that we now know as the Clayton Antitrust Act and were enacted into law.
The Committee Reports at that time expressly refer back to the 1912 bill and indeed they even incorporate the 1912 bill, the reports on the 1912 bill by reference so that there could be no doubt that it was taken with that history in the direct line of dissent.
Respondent's chief argument, if I understand it, is that the inclusion of the words any court of the District of Columbia somehow show that the words District Court be in Court of Appeals.
Now the argument as I understand it, is that the phrase any court from the District of Columbia includes what is now the Court of Appeals for the District of Columbia Circuit, that they would be entitled to a jury trial, that to deny litigants before other Courts of Appeals, the jury trial required in that Court would deny citizens of other states the privileges available in the District of Columbia and if that would violate Article 3 Section 2 of the Constitution which guarantees the citizens of each state, all the privileges and the immunities of citizens in the several States.
The obvious defect is that Article 3 Section 2 does not apply to congressional action.
Second defect is that the District of Columbia is probably not a State for the purposes of Article 3 Section 2.
Third, it is rather unlikely that the term any court of the District of Columbia was meant to include more than the nisi prius courts which were not then known as Federal District Court but as municipal courts and as the Supreme Court for the District of Columbia.
Justice Potter Stewart: Well, whatever is intended of any (Inaudible) that the language embraces the Court of Appeals for that (Voice Overlap) --
Mr. Archibald Cox: I -- well I suppose it does.
I would think it would but I don't think the tail could wag the dog.
I don't think that the fact that that Court of Appeals is included is evidence of the word District Court includes other Courts of Appeals.
Justice Potter Stewart: Well, I don't think that's quite the argument.
I think you -- you set out fairly the argument.
It is only as I understand it and I may, I may misunderstand you but it's only that -- or it's basically that if the person in the Court of Appeals in the District of Columbia has the right to a jury trial in the criminal contempt -- contempt proceeding, then it's a denial -- perhaps a denial for equal protection, I grant you that's not on the Fifth Amendment but the Bolling against Sharpe as a -- that it's a denial, some -- some kind of a constitutional right not to accord him -- not to accord, states the same (Voice Overlap) --
Mr. Archibald Cox: I was -- first, I would suggest that there's nothing in the concept of equal protection as read into the Fifth Amendment that requires identical procedures, judicial procedures in the other Federal Districts and Circuits to those required in the District of Columbia.
I was trying to suggest in addition, Mr. Justice Stewart, that if there is any constitutional problem, I think there's none, but if there is any constitutional problem, then -- and the Circuit Court was faced with choosing between whether the words District Court mean Circuit Court and choosing whether the term any court of the District of Columbia includes the Court of Appeals for the District of Columbia, it might well say "No, that usage is broader than what was required" and avoid the constitutional issue in that manner because the legislative history is so (Inaudible) that Congress intended this requirement to apply to courts where there are jurors.
This was said over and over again.
It was said after this language was put in on the floor of the Senate as well as before.
So I don't think it has -- it has to be decided here because there's nothing to the argument on the Constitution.
I simply say if I'm wrong as to that, that there are two ways out and I think that every indication would be that the District Court means District Court and that the general term was perhaps a little broader and intended, but I don't think that needs to be resolved now.Defendants also argue that even if Sections 402 and 3691 are not ordinarily applicable to violations of an order of an appellate court, they apply here because the Government could have chosen to prosecute Barnett and Johnson in the District Court.
I've already indicated that the Government had no choice in this matter.
In the first place, the Court of Appeals directed the Attorney General to institute prosecution.
Now, this was not something initiated by the Attorney General in the first instance.
In the second place, the Courts really had no choice.
The order which Barnett and Johnson are charged with violating was literally and substantially an order of the Court of Appeals.
That was the only order specifically addressed to Barnett personally.
It was the only order that he clearly disobeyed whereas I've said the other injunctions were not addressed to him and were limited under Rule 65 of the Rules of Civil Procedure.
Justice William J. Brennan: What about Judge Bell's argument in his opinion Mr. Solicitor that he must abide the statutes acted, where the District Court only act as the District Court?
Mr. Archibald Cox: That seems to be that Court of Appeals was not acting as a District Court.
This is somewhat along the same line as the intimations in the opinions below that the Court of Appeals ought not to have entered this argument, that it somehow was improper and should have left the matter to the District Court.
It's not -- I think to say, that the order was made by the Court of Appeals --
Justice William J. Brennan: Well, I gather that Judge Bell proceeds to that.
Mr. Archibald Cox: Yes.
Well, I've -- just one -- one more sentence.
There's nothing in the certified question the challenges, the propriety of that order and I think also so far as the propriety of entering that order goes, if the question was brought -- that was unanimously settled by the judges in the Court of Appeals when they refused to dissolve it and of course, it was before this Court on a petition for certiorari which this Court denied.
Now, that's a part of my answer was -- is that the order was properly made by the Court as a Court of Appeals.
The other part of my answer of course, is that this was the only order addressed to Barnett.
Now, I go beyond that.
I don't wish to stay on simply having this adjudicated because it seems to us that the Court of Appeals acted with eminent propriety.
The Court of Appeals which settled has jurisdiction to entertain ancillary proceeding, bringing in new parties in order to protect and effectuate its mandate.
Here, I think he could have acted in the first instance as was done in (Inaudible) case years ago.
Even so, at every possible stage, almost up to the very end, the court below did differ to the District Court, gave it an opportunity to do these things.
It acted only when that part either couldn't do anything as during the time of Judge Cameron stayed when there's a practical manner the District Court couldn't be expected to act or after the District Court had been given an opportunity and declined to Act.
That was true not only because it couldn't act at the time of Judge Cameron's stay.
It was true when the United States applied it for the order of amicus curiae when Judge Brown called the District Judge.
It was true and we sought the stays against enforcement of the state statute and against enforcement of the state decree and the court below declined to act promptly.
It was partly true with respect to the proceedings for civil contempt but not entirely.
That was the course of the hearing in the Court of Appeals.
I emphasize again that the University officials agreed to register Meredith on September 25th.
It was after that that the United States learned that Governor Barnett apparently intended to block the effectuation of that order of the Court of Appeals made that very afternoon.
Now surely at that stage, it was proper to go to the Court which at that time had the cause before it and to seek this incidental supplementary relief directed to Governor Barnett forbidding him to frustrate its article.
Justice William J. Brennan: Well, I gather this argument that is that whatever the reason that the Court of Appeals acted as it did earlier on the 25th, it did act and entered an order disobedience of which then its representative of the Court was threatened by some proposed action of the Governor's and then as an instance to that order, you got this order.
Mr. Archibald Cox: That's true.
Justice William J. Brennan: And that was the only Court to which it could have gone --
Mr. Archibald Cox: At that stage (Voice Overlap) --
Justice William J. Brennan: -- against this order.
Mr. Archibald Cox: Certainly it was the proper court ability.
I would like and I would also emphasize since you go back over the events, as I tried to state it, that the Court of Appeals at that stage was apparently the only court ready to act promptly in a manner in which its mandate had already been frustrated for four critical days.
Justice Tom C. Clark: Did Meredith have an injunction also?
Mr. Archibald Cox: Meredith went before the Court of Appeals and sought a supplementary injunction on September 25th, yes.
Justice Tom C. Clark: It did on the same language as the one which (Inaudible)?
Mr. Archibald Cox: Not -- not exactly.
Justice Tom C. Clark: But it's the same -- the same party list.
Mr. Archibald Cox: It was -- it was directed at much of the same party, yes.
Justice Arthur J. Goldberg: Could that be suggested Mr. Solicitor General that this order (Inaudible)
Mr. Archibald Cox: Oh no, no.
There's no question.
And that was made very clear during the presentation in the Court of Appeals on the argument of this point.
There had been some discussions.
No, we have proceedings for contempt of our arguments if I may put it colloquy and that brings me of course to a point which I must cover very briefly.
The second reason that we urge that the defendants are not entitled to a jury under the statute is that the only section has barred too and 3691 carefully accept contempts committed in disobedience of any lawful writ entered in any suit or action, brought or prosecuted in the name of or on behalf of the United States.
The order of September 25th that the defendants violated, was entered we submit in a suit or action brought and prosecuted by the United States.
Let me emphasize first the nature of the proceeding and then come back to the statute.
The United States obtained the order in prosecuting its own independent sovereign interest in the integrity of the processes of constitutional adjudication.
Until mid-September, the case of Meredith against Fair was a private actual order to enforce what Meredith said for his constitutional right.
United States didn't participate.
We had no statutory authority to participate.
When Barnett issued his proclamation challenging the adjudicatory powers of the federal court and arrayed against them, everything he could in the State of Mississippi then the entire process of the constitutional adjudication was assaulted and the power of the law was attempting to be settled in law.
The interest that we were asserting was the interest, the public interest, the sovereign interest in the advocacy of court decree, in the rule of the law if you will and the power of federal courts to adjudicate constitutional issues had not simply Meredith's private interest.
Now, our position before the Court as I said before we think is determined by the operative provisions of the order and that arguments based on the label of amicus curiae are wholly beside the point.
Similarly, we think the debates on Civil Rights Legislation of 1957 are wholly beside the point.
Those debates were concerned with the right of the Attorney General to sue to enforce a private citizen's constitutional right, the kind of right that Meredith was enforcing that he initially brought this action, but that was no longer the issue.
That right had been finally and conclusively adjudicated that the issue that arose where the United States intervened was the question of the effectiveness of the Court's adjudications and it was that that was challenged.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: We were not labeled intervener.
I didn't mean it in any technical sense.
Whether we were not in substance of intervener might be debated, but certainly we were not labeled intervener and I didn't mean to -- we participated.
We were given the right to institute proceedings what we instituted we think, it could be properly labeled a supplementary ancillary -- an independent ancillary action, independent in the sense that it was our action, ancillary in the sense that it was ancillary to the proceeding then in the Court of Appeals and previously in the Court of Appeals.
And it was described as an ancillary action by the Court of Appeals unanimously and the declining to dissolve the order against Barnett when that question arose later in October.
But even if there were doubt about the technical nomenclature, the very words of the statute make it plain that the exceptions concerned with substance, I submit, rather than form.
And certainly this order was in substance entered at the suit of the United States.
The statute has very broad term which is any suit or action brought or prosecuted in the name of or on behalf of the United States.
But the sense as explained in both the House of the Senate was that when the Government goes to court to enforce a public right, the statutory requirement of a jury trial is inapplicable.
I've quoted from the debates in my brief.
There's no need to take the Court's time to read them here.
They do state that it was intended to leave the United States with every power to enforce its judgments and demands that it has not that is before the enactment of the statute.
So, that we think on both -- either ground, this is not a case in which there was a statutory right to a jury trial.
I turn now to the defendant's claim that regardless of the statutes, they have a constitutional right to trial by a jury on the charge of willful defiance of the order and decree of an appellate court.
Our first answer is this -- it's except by -- except as change by statute, trial by the Court against the party for violation of a decree directed to it has been part of the fabric of our law throughout the life of the republic.
Indeed, it seems to me that if anything can be said to be law in the sense that it binds the Court as well as the litigants is the constitutional power to punish a party for contempt of a decree directed to him without the intervention of a jury.
That principle, as the Court will recall, is expressed in an unbroken line of precedent in this Court.
It was specifically adjudicated as recently as Green against the United States where the Court held after full consideration that the Constitution does not require trial by jury for criminal contempt.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: Well, I assume that when the Court -- I assume that when the Court spoke of the incidence of a criminal prosecution that it was speaking generally without attempting to --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: Well, I would simply say that that was not an instance of defiance of an order of a court which has historically and for very good reason, I should submit in the moment be regarded as a separate and distinct thing.
I can't -- with all respect, I can't' believe that either the Court or Your Honor intended to overrule the case in that language.
But of course, I don't think --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: Well, I --
Justice Arthur J. Goldberg: This actually was the (Inaudible)
Mr. Archibald Cox: That's true.
I emphasize again.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: The -- well, I would say that the Court was not there concerned where a party is not only violating a decree of a court addressed to him which constitutes contempt, which is always from a special branch of the law and then I can't believe that it was addressing itself to that.
Now, I shall go on in view of one comment Your Honor, you may.
I had to point out that here we were far less concerned with punishment than with future compliance.
I'd like to defer for just a moment my remarks on that point but I intend to direct myself to it specifically.
I was seeking to emphasize the extent to which this rule has been part of the fabric of our law.
I mentioned the decisions in this Court and I think it consist practices in the lower courts for more than a century and a half. The state courts interestingly enough have followed the same rule.
Except this change by statute, I believe that every state court including the Courts of Mississippi.
All that a court has power to punish a party for contempt to which decrees without the intervention of the jury.
The Congress, the legislative branch has also repeatedly acted upon the view that the Constitution does not require trial by jury in cases of criminal contempt.
That view was implicit in the Judiciary Act of 1789 which was enacted by Congress that contained very many members of the Constitutional Convention and would of course propose the Bill of Rights including the Sixth Amendment.
The contempt statute was thoroughly discussed and revised in 1831 after the trial competes with the trial of Judge Peck.
Both the debates of the revision proceeded upon the understanding that the courts have power to punish parties for violation of court orders without the intervention of the jury.
Beginning in 1896, there was the continuous debate upon a contempt bill that led up to the enactment of the provisions of the Clayton Act that we've been discussing.
And again, the distinguished constitutional lawyers who took part in that debate accepted the premise that the Constitution does not require a jury.
Indeed, the issue that they discussed was whether the Constitution permits the jury and of course, it's now settled that it does.
The Clayton Act proceeds on that view so does the Norris-La Guardia Act in 1932 and the debate in the Civil Rights Act to the provisions of the Civil Rights Act enacted in 1960.
Thus, I think I'm amply warranted in saying that the rule for which we contend is deeply woven into the fabric of our law.
I submit also with all deference that the issue was not one that requires reexamination, especially not so close on the heels of the decision rendered after full deliberation in 1958.
Unlike a goodly proportion of the cases of which constitutional precedents have been reexamined, there's been no change in the social and economic conditions that give rise to the precedent.
The old doctrines have not lost their probable meaning in the light of new facts nor has experience demonstrated that the consequences of the doctrine were different that was supposed.
The procedure is exactly the same as it's been followed for over a century and its impact on this defendant will be just the same as in all other cases.
Nor do I think that it can be argued that the rule of constitutional law has had intolerable consequences, were cited to know evidence in increasing resort to the power to prosecute the criminal contempt.
There's no suggestion of widespread gross abuse of power.
The greatest danger misused of the power and to punish criticism of the Court has been confined, has been met by statute and by Court decision.
The use of injunctions in labor disputes was another abuse because it circumvented jury trial and provided a method of private prosecution instead of public prosecution, and that was cured by the Clayton and Norris-La Guardia Acts.
The existence of such statutes and I would like to stress from this point, also shows that this is an area in which Congress not only has the power to legislate but that it can be expected to legislate effectively.
For the Court to adhere to the settled law here, would neither progress nor perpetuated justice.
Congress moreover could change the law selectively picking and choosing between the different cases but it has done this in the past.
It chose to bar views of contempt power by providing juries in appropriate cases without interfering by -- with trial by the Court where that form of trial is indispensable to upholding the rule of law and securing compliance with the parties.
Now, what I have said thus far, of course, argues that Green against the United States is a sound constitutional decision which should not be reexamined.
There are three features distinguishing this case with brief.
So, that even if that decision were thought to be erroneous, or someone wish to hold the question of it, it would seem to us that still a jury trial in the present case would consistently be refused.
In other words, whether dissented of which to reserve judgment, as I say, could still hold that defendants were entitled to a jury trial -- not entitled to a jury trial in the present case at reserved judgment on the case like Green.
In the first place, in Green, the contempt was of a District Court.
Here, we deal with a contempt proceeding instituted by the appellate court for violation of its own decree.
The dangers of arbitrariness, unconscious prejudice, diversity on the part of any judge, subject these judges are to human limitations are minimized by the participate --participation of at least three and perhaps more judges of an appellate court.
Again, requiring a District Court to summon a jury where punishment is necessary to vindicate its process is arguably so close to the normal procedure in the District Court for punishing other offenses of law that the exceptional cases can and therefore should be assimilated to the usual case, but of course with the Court of Appeals, a jury has never been part of its procedure and there's nothing to which to assimilate it either in that court or in the appellate jurisdiction, and not the original jurisdiction of this Court.
The Court of Appeals has no facilities for summoning the juror.
The statutes don't provide how it should be frozen or when should it come.
Indeed, the logic of the defendants' argument is that neither a Court of Appeals nor this Court in the exercise of its appellate jurisdiction has power to punish for contempt.
If for example according to the logic of their argument, the Chief Justice should make an order staying the execution of a prisoner in the State Capital case and the warden went ahead and executed the prisoner, this Court would have no power to punish the violation.
Justice Potter Stewart: Well, that was the Shipp case, wasn't it?
Mr. Archibald Cox: That example is based on the Shipp case.
Justice Potter Stewart: But how -- how common is it that -- how many times have ever been criminal contempt proceedings in the Courts of Appeals?
Mr. Archibald Cox: We collect those cases that came to our attention in a footnote in our brief.
I would say, it maybe a wild guess that we cite somewhere around 15 cases.
Justice Potter Stewart: You found that many?
Mr. Archibald Cox: Oh, yes.
I say 15 Justice Stewart.
Justice Potter Stewart: Well, that in an order magnitude.
Mr. Archibald Cox: I would say so.
They're on pages 52 and 53 and it's --
Justice William J. Brennan: What's the procedure they found (Inaudible)?
What's the procedure they found, take evidence before the --
Mr. Archibald Cox: Sometimes -- sometimes it has been agreed.
This was done in the Shipp case, the parties stipulated that a master might take evidence.
Justice William J. Brennan: I would suppose there had been some NLRB.
Mr. Archibald Cox: Some of the cases I've mentioned, one of them that I recall is an NLRB case.
Usually, civil contempt has been adequate.
Usually, the fight has been over the computation of back pay or something like that and the proceeding has been in civil contempt.
The criminal contempt is very rare because fortunately, it's very rare to have this kind of defiance of court orders.
In the Court of Appeals, I mentioned the defendants recognized the logic of their argument.
They said, "Yes, the Court of Appeals" and by analogy of this Court, the exercise of its criminal jurisdiction have no contempt power.
That would mean according to the settled law that no one could punish the defendants for contempt of this order because the law in the language of the statutes seems to confirm it is that only the Court whose authority is violated, they punish for contempt.
My second reason --
Justice Byron R. White: Do you mean the -- do you mean the Court of Appeals here could not have directed the Unites States (Inaudible) criminal contempt proceedings by the District Court?
Mr. Archibald Cox: That would have been a very, very great question about it Mr. Justice.
The statute speaks of a court punishing people for violation of its authority and no other.
And the cases going back to Ex parte Tillinghast, 4 Peters 208 when -- In re Deems, which say that only the Court at which the contempt is directed if I may put it that way, it was the authority that held in contempt has power to take cognizance of it.
Justice William J. Brennan: Well, is that to suggest that there'd be no power in the Court of Appeals, remit to -- the Court of Appeals behalf the trial of a contempt?
Mr. Archibald Cox: That is certainly the implication on those cases.
I -- I had to take to impress them farther than they go.
There are the square holdings.
There is one District Court case at which the District Court did under the statute I think remit a case to another District Court.
Justice Byron R. White: Is this critical to your argument?
Mr. Archibald Cox: No, sir.
I'm trying to suggest -- not at all.
Justice William J. Brennan: Because (Voice Overlap) --
Mr. Archibald Cox: I'm trying to suggest that there are grounds for distinguishing what I may call the dissent in Green from the present case.
What is the business of appellate court --
Justice William J. Brennan: Because actually 42 (b) consent is really held different charges or rather non-charges before different judges, aren't they?
Contempt on --
Mr. Archibald Cox: But usually in the same court.
Justice William J. Brennan: They're the same court but somehow it's surprising.
Mr. Archibald Cox: As Justice White said, I -- I don't regard this as of the essence of my argument, I do point out that the important distinction is that this is contempt of an appellate court, the other cases were the District Court which are accustomed to deal with juries.
Second, although we argued in Green, and I believe we'd argue again, that there was a continuing challenge in Green's conduct to the effect to this of judicial decrees.
Still, from the standpoint of one who rejected that argument or wished to reserve judgment upon it, the quality of the contemptuous conduct in the present case is altogether different.
Green was concerned with a normal enforcement of the criminal law to the prosecution, bail and surrender (Inaudible).
Well, the defendants simply disobeyed the order and to surrender himself on what -- as if he had broken away from the Marshal or escape jail.
In the present case, Barnett not merely disobeyed the order of the Court of Appeals, he was engaged in a calculated effort to prevent others from complying that he was summoning a whole power of the State to vitiate and set aside the adjudicatory powers of the federal courts.
His attempt to nullification challenged the power of the Court to act as a Court, it wasn't simply disobedience.
They threatened, as I say, that principle of constitutional adjudication, the supremacy of the Constitution, not the whole rule of the law.
So that I assume for a moment that in dealing with simple disobedience to a court order, that because of the ordinary administration of criminal justice, it may be appropriate to provide for the intervention of a jury where that historic power, not only to find facts but to acquit a defendant and disregard of both the law and the fact, exercising an arbitrary power of dispensations.
But in vindicating its authority to adjudicate and bind the parties by a forcible decree, a court should not be left dependent upon the unanimous support of 12 jurors, anyone of whom, if he were in sympathetic to the basic adjudication, could block conviction and best stay in the defendants to nullify the law.
Our Constitution guarantees the rights of unpopular minorities.
The courts are rightly, zealously protected, but the judicial protection may also improve hollow if the vindication of the courts decree could be prevented by the whim of a single jury, sympathetic to a lawless man or to a lawless state official.
Then at this --
Justice Potter Stewart: (Voice Overlap) your point is that in this case, and in the Court which is the unpopular minority?
Mr. Archibald Cox: The court decree was entered in this case as there might be numerous cases we think of.
This decree was entered to sustain the constitutional rights of an unpopular minority.
And I say that if the authority of a court to make such a decree is subject to attack and the decree cannot be vindicated except by referring the issue to a body run from the very populous, that is attacking it then the protection of the unpopular minority is likely to prove very slim indeed.
Justice Potter Stewart: Was this an argument that you -- in an ordinary criminal case or the --
Mr. Archibald Cox: I don't think the --
Justice Potter Stewart: -- unpopular criminal defendant, isn't it?
Mr. Archibald Cox: I don't think that the unpopular criminal defendant is challenging the integrity of the judicial process, the legal process in quite the same way.
Justice Arthur J. Goldberg: You mean they're challenging the integrity of the law.
Mr. Archibald Cox: I think he is realistically.
I think realistically, he's -- he's violating it, he is disobeying it but I don't think he under minded.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: No.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: No, no, no.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: But this is a reason I suggest for distinguishing this case and for maintaining the power that the courts historically have had.
If I may perhaps put it this way, then we'll bond to another point that may really add to this, Justice Goldberg.
So long as one thinks, it appears to me, of the Court, the Government as suppressing it to -- a -- a precedent to few free people then the power of the jury to intervene becomes an important safeguard.
But as soon as one begins to think of the law as an instrument for protecting the weak and the oppressed, as an instrument for securing constitutional rights of minority, of protecting us if you will our better selves against our worst self, then, there is a different and more complicated problem.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: No, that brings me -- that brings me to the third essential difference between Green in the present case.
If Green with decree -- commanded Green to surrender himself for commitment, he disobeyed.
Later, he came in and was committed.
His acts were all complete, the decree was exhausted. The Court was concerned wholly with punishment for past events.
Justice Hugo L. Black: Was that a crime?
Mr. Archibald Cox: It was not a crime at that time.
No, it was not, Your Honor.
Justice Hugo L. Black: Is it now?
Mr. Archibald Cox: Yes, sir.
In -- in the present case, quite the reverse is true or was true with the contempt citation issues, I'm speaking of at that time.
The original decree and mandate of the Court of Appeals required the University not only to enroll Meredith but to permit him to continue to assess and obtain an education without discrimination.
The order directed to Barnett imposed those same continuing obligation.
When the Court issued the citation for criminal contempt, the decree far from being spent, imposed future obligations upon Barnett.
The Court was still concerned with his future compliance at the contempt proceeding, although it was labeled criminal because it did look in a sense of punishment, it was ended vindicating to bind the course of the Court's decree so that Barnett would not resume a future course of nullification of those very decrees.
In other words, this was not a situation in which civil contempt was an adequate mean of securing affiance, of enforcement.
The black and white distinction between civil contempt which were described in the classroom as a means of enforcement, criminal contempt or we describe there as a -- as solely concerned with punishment, does not always fit the realities of life of court decrees.
It's true enough to say that when a defendant is imprisoned, until he signs the deed of returns an heirloom, if there's no punishment that while he's sent to jail coercively, he is not punished because he has the key to the jail in his pocket as we're saying.
Whereas if he destroys the heirloom or fails to surrender himself in violation of a decree so far as the decree is spent, then the situation is essentially punishment because future compliance with the decree is impossible.
The distinction is not so simple, where the decree imposes on the defendant a continuing obligation to refrain from unlawful acts that he has committed in the past and may commit again at any time for some period in the future.
The sheriff, to take an example, who engages in a course of intimidation or coercion, prevents citizens from exercising their constitutional rights say to keep them for registering the vote or to keep pickets and other labor organizers in the company town from exercising the right of free speech, is no threat while he is imprisoned.
The problem of enforcement arises as soon as he is free unless there is some effective punishment for past violation.
In the present case, Barnett could scarcely frustrate the decree while the troops were at the University.
The problem that faced the Court of Appeals both when it ordered the Attorney General to institute this proceeding and later was essentially one of restoring the principle of Government according to the laws under normal conditions so that there would be compliance with the adjudicated obligation without the need fore force.
Justice Arthur J. Goldberg: Mr. General, (Inaudible)
Mr. Archibald Cox: In the first place, that was -- he was ordered – I have two comments on that.
First, that was directed primarily at enrollment and I am now seeking to emphasize the obligation not to interfere with its continued attendance which would become a problem.
He had promised to --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Archibald Cox: Second, Mr. Justice -- second, Mr. Justice Goldberg, I wonder really whether its civil contempt, it was proper to impose imprisonment or a fine or something that took place in the past unless you do something in the future.
I -- I don't know the thinking of the Court of Appeals but it confronted there and of course the very problem that I say, exist now.
That there is no way here of compelling Barnett to comply with the decree in the future and I emphasize that this is a continuing decree unless there is a power deciding for contempt for each violation as it occurs.
But he could scarcely -- he gave no assurance that he would not resume his prior course of conduct.
The events that you referred to with civil contempt led his attorneys one stated in open court, that he would comply with the order insofar as he was able.
But 10 days later, they retracted that and a little after that, Barnett issued a public statement reserving (Inaudible) himself as Governor, the right to decide whether or not he would comply with the injunction.
The only way that probably still essentially one of compliance and I submit to you that the only way, the only available process for preventing nullification was to -- for the Court to have available power to impose some punishment each time, a subsequent violation occurred and that seems to me what the contempt proceeding looked to.
Justice Arthur J. Goldberg: Because I'm trouble by you Mr. Solicitor (Inaudible) --
Argument of Charles Clark
Chief Justice Earl Warren: United States, Petitioner, versus Ross R. Barnett et al.
Mr Clark, you may proceed with the arguments.
Mr. Charles Clark: May it please the Chief Justice of the United States and Honorable Associate Justices.
At the outset of my portion of the argument, I would like to recall to the Court's attention that what we are dealing with here is criminal contempt, not civil contempt.
We are not looking to a procedure in the court below which has, as any of its intention, the enforcement of orders of the court.
These orders have been enforced.
James Meredith has attended the University of Mississippi.
He has graduated from that institution.
The function of judicial process in this case has run its course to completion.
The possibility of frustration or nullification of that process has passed.
This is criminal contempt.
The species or variety of the contempt power of the court that looks to punishment, criminal punishment --
Justice William J. Brennan: Do you seek testing the case is moot?
Mr. Charles Clark: No, sir, Your Honor.
Criminal contempt is a term-honored form of the contempt power.
We are here concerned with how that power can be exercised under the constitutional safeguards of the United States of America, and the point that I make is that, while civil contempt is a procedure in which the court is seeking to have its decree enforced and to bring the parties who might be thought to be recalcitrant into compliance with this decree, this form of civil contempt has none of the procedural safeguards that this Court has been willing in the past to apply to criminal contempt and what this Court is seeking to do is to punish, is to inflict a penal sanction, is to vindicate, reek vengeance upon someone who it says it has reason to believe has, in the past, violated its decree or come across its decree.
This is the point that I would make, sir.
On page -- well, Your Honors don't have this.
We ask that the argument yesterday be transcribed and we were furnished last night with the copy of the transcript, and the Honorable Solicitor General points out in his argument that, in this particular situation, we are less concerned with punishment than with further compliance.
This causes me to want to begin at the point of urging to Your Honors that there is a very vital distinction between civil contempt which seeks to bring about compliance, which imposes a conditional sanction.
Just as the Court of Appeals did here when it said to the Governor and the Lieutenant Governor "now, if this order is not complied with and your compliance is not shown to this Court by the 2nd day of October, then fines of $10,000 a day and imprisonment will be imposed upon you.
Bring yourself out of the area of conflict with our decree."
This was a civil sanction for the purpose of this argument.
I think that they departed from the statute when they imposed both fine and imprisonment, but that's an entirely side issue.
I think they exceeded their statutory powers.
But, that was civil contempt and as Your Honors pointed out in your questions to counsel opposite here yesterday, I believe it was Mr. Justice Goldberg, this civil decree was entered and after its entry, Meredith did attend the university and did graduate there from.
Justice Arthur J. Goldberg: (Inaudible) contempt, it's described.
Mr. Charles Clark: Your Honor, the criminal contempt proceedings were not commenced until an order was entered by the Court of Appeals on the November, 15, 1962.
At the time of the entry of this order, James Meredith was enrolled in the University of Mississippi and had been, since the 1st day of October, 45 days.
The Honorable Solicitor General also says that the constitutional phase of our argument is controlled by the decision of these Court in Green versus United States.
We take a contrary position.
We say that it is not controlled by the Green case for the reason that, in this situation, the Congress of the United States, at the instance of the Attorney General of the United States, passed a law.
It was part of the Criminal Code Section 1509 of Title 18.
It made that interference with court decrees by persons who were not parties to the proceedings a violation of the criminal law of the United States of America and permitted the imposition of criminal sanctions.
This was not so in the Green case.
Bail jumping was not an offense at the time that Gilbert Green left the area of the courtroom.
Justice John M. Harlan: What do you do with the case of United States against Shipp?
Mr. Charles Clark: If Your Honor please, the distinction that I would make to you immediately in the Shipp case, borne out from my examination of the records of the case in this Court, is that Shipp did not demand a jury, as was his constitutional right and of course, it was his constitutional prerogative to waive his right to jury which he did because the record of this Court shows that the Shipp-defendants considered to the taking of the testimony by a commissioner.
So, I would --
Justice John M. Harlan: Did that case turn on a procedural point?
Mr. Charles Clark: No sir.
They just -- the constitutional issue which I make to Your Honors here this morning just wasn't erased.
Of course the defendant does not have to be accorded a trial by jury where he's willing to waive that right.
I think this is acknowledged by everyone, sir.
I believe that that is the vital distinction between what we urge to Your Honor here and the Shipp case as controlling precedent.
Shipp was not tried with a jury and I might say, it would be appropriate at this time to comment on the fact that the Solicitor General pointed out that, at one page in his brief, he had delineated approximately 15 cases of criminal contempt tried in the courts of appeal.
I have done my best to become acquainted with every one of those cases and I make the statement without any fear of contradiction to Your Honors that not single one of those cases involved the demand for a trial by jury.
There were two really comparable cases or a group of them.
One of them was not actually cited by the Solicitor General in his argument.
They both drew out of the matter that was here before this Court, styled in re McKenzie.
A receiver had been appointed in State of Alaska around the turn of the century, I believe it was in 1900 exactly, to become -- to operate certain gold claims in the State of Alaska.
Then the Ninth Circuit granted an appeal from the order refusing to dissolve the receivership and in the course of its granting of that order by a single judge of the Court of Appeals, it issued a stay.
Then, the claim was made that Mr. McKinley, the receiver had violated the stay order of the single judge of the Court of Appeals by refusing to turnover to the other defendants, in the -- the other parties in the receivership proceedings the gold dust and gold nuggets that he had possession of at that time.
Out of this refusal and by the way, Mr. McKenzie had a conflict between the orders of the District Court and the orders of the Court of Appeals but, out of this situation, there grew two criminal contempt cases in the Ninth Circuit, one in which Mr. McKenzie was jailed for six months and one in which his attorney was jailed for three months for giving him the advice that the order -- the stay order did not mean that he had to turn over the gold.
These two cases, I say, grew out of that, but I have examined the records that are here before this Court, in your library upstairs, and there was no demand by Mr. McKenzie or by his attorney for a trial by jury.
So, again, the issue was not raised in that case.
The other comparable case was In re Door, D-O-O-R.
This was a case in which the use of the mails to transmit obscene matter was charged in connection with an investigation by the postal department, and Door was acted upon by the Court of Appeals in the sense that he was enjoined pending the time the appeal of this case was to be tracked and they claimed that he violated -- again, the Ninth Circuit claimed that he violated that injunction that was on him.
Door did not demand a trial by jury and the opinion of the court and the Court of Appeals expressly says so.
I do not think that there has ever been a situation in which a demand for a trial by jury of an offense -- correction -- a demand for a trial by jury in a criminal contempt proceeding where the subject matter of the alleged contempt was clearly a true crime, as opposed to amounting to a crime under the common law or equal to a crime, was a true crime if proved where a demand for a constitutional trial by jury was made and refused.
I do not believe that this Court has ever had that question before and I believe that it is a question of first impression and not controlled by the Green case.
Justice Potter Stewart: There are such cases where the man put to trial by jury was made and it was granted?
Mr. Charles Clark: Your Honor, in the Court of Appeals, I do not know.
Of course there have been many criminal contempt cases tried by jury under the terms and provisions of the Clayton Act.
Justice Potter Stewart: Yes, yes.
Mr. Charles Clark: But I know of none -- I know of none in the Courts of Appeal.
The other cases cited by the Solicitor General in his brief all involved appeals for administrative procedures.
and of course, the very first time that these matters ever reached a court of law is when they come into the Court of Appeals and of course, there is no such thing as contempt of an administrative proceeding and where NLRB or FTC enters a requirement that a person perform a certain thing or do a certain act and then an appeal is made from that and the Court of Appeals says, "Yes the order is valid now, obey it.”
Then the only type of contempt power that could be exercised would be a contempt of the order of the Court of Appeals.
and this is what was involved in every other one of the proceedings cited by the Solicitor, none of which bore any evidence of a demand for a trial by jury.
Justice Arthur J. Goldberg: Mr. Clark, under your statute, 1509, is it your contention that there is a (Inaudible)
Mr. Charles Clark: No, sir, Mr. Goldberg -- Mr. Justice Goldberg.
I do not make that contention and I have expressly excluded it from my brief.
I do not --
Justice Arthur J. Goldberg: Now, is it applicable to the actual situation of the defendant?
It would be punishable under the statute, wouldn't it?
Mr. Charles Clark: It could be punished under the statute.
It would be crime.
But, here, we are talking with, again, a species or subspecies of the contempt power in which the court itself, with its own eyes, sees the matter.
It -- it's in the focus of the court's hearing and in the focus of the court's eyes.
We do have a case that control that, in re Terry, in which --
Justice Arthur J. Goldberg: Wouldn't it be punishable?
Can the court punish the statute here?
Mr. Charles Clark: Yes, sir.
and the only point that I make to Your Honors is that there is a need for the immediacy of the remedy in that case which I think differentiates it from any other claim of a right to proceed summarily where something has happened hours, days, weeks, or months later.
There is not the same urgency to correct the situation that interferes with the administration of justice.
I know that Your Honors are familiar with the works of Mr. Edward Livingston.
Mr. Livingston would have only, Your Honor, taken this person out of the way of the court.
Where his obstreperousness was interfering with the conduct of a trial, he would have just had him physically removed for the day and then, if he came back the next day and persisted in his conduct, he would have removed him again.
He would have never imposed a penal sanction.
I would not go that far with Your Honors.
I recognize that this creates a situation that could break down a trial, and the point that I would make with you above all is that what I am urging here is not anything that's going to keep a court from functioning.
What I am urging to you is that, when you impose a penal sanction in a criminal trial, it ought to be done under the Constitution of the United States by a jury procedure where the defendant demands it.
This, I think, is a simple summation of what my constitutional point is to you.
If I may, I don't want to be presumptuous to the Court but, just for emphasis, Article III Section 2 Clause 3 of the Constitution says, and of course has said since the day it was written, that the trial of all crimes, except in impeachment cases -- except in impeachment cases, shall be by jury.
There's only one exception in that statue.
It's an exception of a procedure that is sui generis, if one ever was.
I mean, the trials of impeachments are really peculiar animals under the law, but that's the only exception and I make the point with Your Honors that it's a much stronger point in my favor because the exception is there, that it would be if it had not been there, even though trials by impeachment are clearly provided for elsewhere in the Constitution.
Here, they thought it necessary to call out this right in the Savings Clause that save to the citizens the right to be tried by juries in this country for crimes.
From a great dissatisfaction with the way the Constitution was originally written, the Congress, in its first meeting, put into the Constitution the Bill of Rights and here again, in the Sixth Amendment.
In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial by an impartial jury.
I submit to Your Honors that they are words that leave absolutely no room for any other construction in a case such as we have here where a court is seeking vengeance, where a court seeks to punish a past act.
I think that the Constitution very elaborately and very precisely defines exactly what my client's rights are and I think that this Court should make a holding in this case which will enforce those words of the Constitution in cases of this type.
The prosecution has been able to develop absolutely no history that will support any other construction, except for the fact that, in old cases, this Court ruled that criminal contempt was not within the purview of these sections.
If Your Honors please, this is a different case from those cases even because this is a statutorily defined crime if the defendants are guilty of this act, and that issue has never been before you.
But, assuming for the sake of this argument, the validity of Terry and Debs and the other cases that have made these holdings, I say to Your Honors, the error is one of the commodities that does not improve with age and this Court, I urge with the utmost deference and respect, should recognize that older decisions which do not grant this right are error.
The Constitution has meant different things at different times in this nation's history and yet, its words have never changed.
So, what I urge the Court to do here is not an unheard of thing.
When I urge you to depart from the spirit of past decisions in the constitutional field, I'm not urging something that's never been argued to you before and I am very sure, will not be argued to you again.
I don't think that the Constitution is a dead document and I think that this Court will constantly be asked to examine its decisions in the constitutional field.
But, let me emphasize that I make this point only in argument because I do not concede that this case that we have here today has ever been before this Court before, and I make the point only that the spirit of other decisions which would indicate a contrary result ought not be allowed to control this case because I don't think that they are on all fours with the case.
I don't think that they were the issue that we have here before us.
One bit of support comes from Mr. Madison in his original argument to the Congress for the adoption of the Bill of Rights, and I have never seen it quoted heretofore, and if I may ask Your Honors indulgence to call it to your attention.
He said in Congress, “In the declaration of rights which England has established, the truth is that they've gone no further than to raise a barrier against the power of the crown.
The power of the legislature is left altogether indefinite.
Although I know that whenever the great rights trial by jury, freedom of the press, or liberty of conscience come in question in that body, the Parliament, the invasion of them is resisted by evil advocates.
Yet, their Magna Carta does not contain any one provision for the security of those rights.
Respecting which, the people of America are most alarmed.”
He included the right to a trial by jury under the Sixth Amendment in his demands for First Amendment protection and in his differentiation of the Law of England and the Law of the United States in this regard.
Continuing, "But, although the case may be widely different and it may not be thought necessary to provide limits for the legislative power in that country, yet, a different opinion prevails in the United States.”
This quotation is from 1 Annals of Congress, page 436.
Justice Arthur J. Goldberg: I don't think it detracts anything from your reference, but I think that has been quoted quite a number of times.
Mr. Charles Clark: Thank you, Your Honor.
Justice Tom C. Clark: I --
Mr. Charles Clark: As I --
Justice Tom C. Clark: That -- that does not mean that it shouldn't continue to be quoted.
Mr. Charles Clark: Thank you, sir.
I acknowledge two errors.
I acknowledge the error in not finding the Kennedy versus Mendoza case.
I think it certainty is a very applicable case and my only excuse is that, because it did not dovetail into contempt and was such a recent decision, I missed it.
Well, Mr. Justice Moody spoke the same thing for the court in Twining versus New Jersey when he said that if the procedures of England were brought to this country by our Constitution, then the procedures of the first half of the 17th century would be fastened upon American jurisprudence like a straitjacket, only to be loosened by amendments to the Constitution.
That would be to deny every quality of the law but its age and to render it incapable of progress or improvement.
Justice Tom C. Clark: I want to be sure that I understand your argument.
As I understand you are saying when this Court, in considering a constitutional question which has previously been decided in one way reaches the conclusion that that former decision was wrong, it's its constitutional duty to overrule the old case.
Mr. Charles Clark: Yes, sir, Your Honor, and if I may just make one additional distinction.
I make this only by way of argument because I basically do not concede that this is even governed --
Justice Tom C. Clark: I understand.
Mr. Charles Clark: -- by US versus Green -- but, I say, if Your Honors say that the spirit of Green moves into this area, then I do say to Your Honors, respectfully and with deference, that Green -- the Green decision ought to be amended to the extent that I urge here today, that where a -- an act is clearly defined as a breach of the criminal laws of the United States, then it ought to be punished in the way that the law provides for crimes to be punished.
Justice Tom C. Clark: Did Green ask for a jury?
Mr. Charles Clark: No, sir.
Green -- the Green demand came before this Court on a demand for indictment by a grand jury.
One of the issues that we raise in the court below which they didn't have any difficulty with, of course, because of the decision in the Green case.
They overruled our motion to dismiss the criminal contempt charges for lack of a grand jury presentment in indictment.
But, that was the issue in Green, as I concede it, Mr. Justice Clark.
Justice Tom C. Clark: Why didn't they hold it before issuing an exam by jury?
Mr. Charles Clark: It did not contain -- it did not reach the issue, as I understood the case, of a demand for trial by a petit jury in regular criminal proceedings.
It discussed the application of the Constitution to criminal contempt.
Justice Tom C. Clark: How do you distinguish then, unless you (Inaudible)
Mr. Charles Clark: No, sir.
Debs -- in the Debs case, the jury issue was involved.
And in the Debs case, the thing that I pointed out to Your Honors, the distinction that I would make would be that the case, here, is an area where Congress has defined the acts as crimes, as true crimes.
In the Debs case, this was an injunction granted to allow the mails, they said, to continue to flow.
I think that the quotations in the case from the leaders of the strike from Eugene Debs and his so-called lieutenants indicate that they considered it to have a strike-breaking effect rather than the effect of preventing or allowing the mails to continue to flow.
I made that issue in my --
Justice Tom C. Clark: It was defined (Inaudible)
Mr. Charles Clark: Yes, Your Honor.
The -- the court issued an injunction.
And of course, in the labor field, I think that with Clayton and then reinforced by Norris-LaGuardia when this Court's decisions concerning Clayton were thought to be not adequate enough to suit the wishes of Congress later, by the Norris-LaGuardia Act, they strengthened the rights of labor to be exempted from the types of procedure that we have here, but this is only in labor cases.
In the Kennedy versus Mendoza decision, the court quoted from Ex parte Milligan and if I may, again with the Court's indulgence, just add a sentence or two immediately following the Court's quotation there, “Because of the fact that the Eminent Solicitor argues that the courts need to have this power.”
This is -- this is why it should be done because, without it, we are not going to have satisfactory administration of justice.
I'd like to reply more in detail to that argument in just a minute.
But, for now, let me say I address myself only to the question of whether need can create a right.
The court in Ex parte Milligan said no doctrine involving more pernicious consequences was ever invented by the will of man.
Then, that any of its provisions to the Constitution can be suspended during any of the great exigencies of government.
Such a doctrine not only leads to anarchy or despotism but the theory of necessity, on which it is based, is false.
The Government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.
I say to Your Honors, further, that the Constitution impliedly recognizes the right to trial by jury in addition to the direct recognitions that I have just referred to, in that, the Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law.
I think that this Court's holding in Griffin versus the People of Illinois clearly indicates what this Court means by due process of law.
and I am not urging that I would write the Equal Protection Clause into the Constitution of the United States for the federal prerogative sub silentio.
But, I say to Your Honors that you have already decided in the Detroit Bank case and in others, such as Griffin, that when an action establishes or when a procedure establishes a markedly different path for two people that are identically circumstanced and situated, that it does not accord due process of law.
and I think that this is exactly what happens.
On the first day, when the Government had reasonable grounds to believe that the defendants in this case were interfering, in anyway, with the orders of the District Court of the United States or of the Court of Appeals, they had the right to take the information that they filed with the Court of Appeals, and form an affidavit, and make a criminal charge against these persons.
This was their prerogative and I submit to Your Honors, their only prerogative, insofar as criminal sanctions were concerned.
And I -- let me again emphasize, I do not speak of civil contempt.
I do not speak of any of the multiple ways that a court might choose to say to a person who is obstructing its orders or interfering with compliance with these orders that “unless you move aside, this court will impose a civil sanction on you.”
I'm talking about now punishment.
I'm talking about punishment for the past.
This is something that should be processed under 1509, and I think to say to the Government, “well, if you don't feel like proceeding under 1509, just go back to the court and start an independent ancillary action in the Court of Appeals that has no original jurisdiction, and then cite the defendants for criminal contempt and you get around to trial by jury that way.”
I just don't think that this can be made to square up with due process of law and --
Justice John M. Harlan: Going to Mr. Justice Black's order of vacating the stays, the (Inaudible) have it and the rule in (Inaudible) who ran against the Government.
Do you think this Court would have been without power to aid and govern the Court in contempt?
Mr. Charles Clark: No, sir.
I would say this.
The Solicitor made a point that I think provoked the Attorney General to ask Congress to pass 1509 and this was that the processes of injunction are normally construed not to reach to non-parties, except those persons who are acting as agents or in a conspiracy with the parties.
and he has taken a position here that this did not include the Governor --
Justice John M. Harlan: I'm not so sure --
Mr. Charles Clark: -- in so --
Justice John M. Harlan: -- you did on the hypothetical.
Mr. Charles Clark: Oh, alright sir.
Absolutely not, there isn't -- there is nothing in the argument that I make to this Court that would interfere in one whit with the exercise of the imposition of civil sanctions to bring a defendant into compliance with an order.
Surely, this Court, the Court of Appeals, the District Court, any court has the right to impose civil sanctions and say to a defendant “now, unless you comply, you will find yourself punished thusly by imprisonment.
You go to jail until you are ready to comply or you pay a daily fine.”
This is a very theoretical distinction on fines which I think the courts have not gotten around to making, but it's too far-fetched to go into here.
But, these civil sanctions in which the defendant carries with him the power to avoid the punishment by correcting his action are not in any way encompassed within what I argue to Your Honors today.
I'm talking about solely punishment.
and I submit to Your Honor, and I don't want to evade the issue with you, I submit to you that if your procedures, insofar as Mr. Justice Black's injunction had been concerned, had been criminal procedures, then I certainly would have -- would think that we were as much entitled to a jury in this courtroom as we would be to any -- in any other courtroom in the land.
Justice John M. Harlan: Where would --
Mr. Charles Clark: We all live under the Constitution.
Justice John M. Harlan: Where would you even try it under those circumstances, here in the District of Mississippi as your own?
Mr. Charles Clark: In the district in which the alleged crime was supposed to have been committed.
Justice John M. Harlan: The alleged crime, on your hypothesis, would have been committed in the District of Columbia and in contempt of Justice Black's order.
Mr. Charles Clark: Mr. Justice Harlan, I wished that I was capable of answering your question.
I just don't know, sir.
I don't know which it would have been.
I don't know whether the place where the contemptuous or the allegedly contemptuous acts were physically done or the site of the court --
Justice John M. Harlan: Well I --
Mr. Charles Clark: -- controls --
Justice John M. Harlan: Let me reiterate my question into the context of the present case.
Assuming you are right and you prevail, your argument would have been the Governor is entitled to a jury trial.
Where would the trial take place, in Louisiana District?
Mr. Charles Clark: If Your Honor decides, with the point that I urge here, that the Constitution of the United States accords a right to a trial by jury, then it would have to be, in my opinion, in the State of Mississippi.
and we have additionally urged, I might say, to Your Honor that the matter awe upon the proper judicial administration to be remanded to the District Court for the conduct of the trial.
This is a criminal action.
The court as the -- as the Eminent Solicitor argues in his brief, the court is not involved in any way.
It simply sits as the judge, as the arbiter of the courtroom, and governs the proceedings.
So, I see absolutely nothing to the claim of the Solicitor that only the Court of Appeals could preside at the trial.
I think the court could do just exactly what was done by the District Court in Texas and send the case to any court having jurisdiction for a regular criminal processing.
I think this is what the Constitution means when it accords due process.
I think this is what the Constitution means when it accords the right to trial by jury.
Justice Hugo L. Black: Where does it provide that the jury must be selected?
Mr. Charles Clark: From the District in which the act --
Justice Hugo L. Black: Is that what the Constitution provides?
Mr. Charles Clark: Well, let me get our bounds on the Constitution.
I have reference to the Sixth Amendment in my mind, but I want the exact words before Your Honors.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.
And my discussions with Mr. Justice Harlan were meant to indicate that my doubts are where does the crime occur?
Justice John M. Harlan: What is --
Mr. Charles Clark: Does --
Justice John M. Harlan: -- the crime in your view?
Mr. Charles Clark: If there was a crime, if what these people are accused of doing had been done, it would have been an interference with or an obstruction to a court order.
Justice John M. Harlan: Where did that court sit?
Mr. Charles Clark: This, again, puts me on the horns of a dilemma if you mean to use this case because we had an order of the District Court of the Southern District of the State of Mississippi that was as much contempt as any other.
We had the charges here.
Those are of a Court of Appeals which sits in Atlanta, and in New Orleans, and in Houston, and in other points in the Fifth Circuit.
Justice John M. Harlan: Hence, which are contempt of the court -- the order of the Court of Appeals.
Mr. Charles Clark: Yes, and I just don't know whether when the Constitution means -- when the Constitution says where the crime shall have been committed, it means, in the case of the contempt of a court order, the place where the acts were done, which occurred in both the Northern and the Southern District of Mississippi or whether it means the place where the court that issued the order sat.
In other words, does the contempt occur in the act or does the contempt occur to the presence of the court?
and this is what I mean to have a dilemma about.
Justice Hugo L. Black: But, after the Constitution was adopted, the trial occurred in the Supreme Court in which the Court called upon a jury and tried it before you and charging the jury would be judge of both the law and the fact.
From what area was that jury selected?
Mr. Charles Clark: Your Honor must have reference to Brailsford --
Justice Hugo L. Black: Brailsford against Georgia.
Mr. Charles Clark: I -- I wished that I knew, sir, but I don't.
I don't know the answer to your question, Mr. Justice Black.
Justice Hugo L. Black: What has that brought up?
Mr. Charles Clark: It cited Philadelphia --
Justice Hugo L. Black: Was it Philadelphia?
Mr. Charles Clark: My understanding was that there were two other jury matters before the Supreme Court in related -- or in unrelated cases, but about the same time.
But, I am unable to supply the Court with any information.
Justice Tom C. Clark: How many did you get in this Texas case, what's the title of that?
Mr. Charles Clark: It's the --
Justice Tom C. Clark: Is it in your brief?
Mr. Charles Clark: Yes, Your Honor, just one second.
Justice Tom C. Clark: I get it, just a second.
Mr. Charles Clark: It won't take but a --
Justice Tom C. Clark: Is that a state court?
Mr. Charles Clark: Yes, Your Honor, it was two District Courts in the State of Texas that were involved.
Justice Tom C. Clark: You don't have a federal case on it, do you?
Mr. Charles Clark: They were federal courts -- Federal District Courts, yes, sir.
The Federal District Court in one district referred the contempt to the place where the act was committed for the trial of the alleged contempt of court, and this is the only --
Justice Tom C. Clark: The one federal --
Mr. Charles Clark: It was Houston versus North Texas Motor Freight Lines, Inc. Houston and North Texas Motor Freight Lines, Inc. versus Local 745 and the citation is 27 F.Supp.154.
Justice Tom C. Clark: One federal court in Texas transferred it to another federal court in Texas?
Mr. Charles Clark: Yes, sir.
Justice Tom C. Clark: It didn't involve the Court of Appeals at all?
Mr. Charles Clark: No, sir, District Court only.
But, the District Court there interpreted the meaning of the Constitution as --
Justice Tom C. Clark: That --
Mr. Charles Clark: -- to be jury of the district where the act was committed rather than where the court sat.
I think the court sat in Dallas and they referred the matter to Houston is my best recollection.
I might call to Your Honors' attention that I've made a call to typographical error to be made in the brief and that the correct citation of that case is page 154 of 27 Federal Supplement instead of the citation.
Justice Arthur J. Goldberg: Well, there is the fact that there had been the summary contempt power that you say exist.
How it can exist?
It can exist by necessity.
Is that why it exists?
Mr. Charles Clark: If it exist --
Justice Arthur J. Goldberg: If by necessity, where would you position it from Georgia?
Mr. Charles Clark: The summary contempt power, sir?
Justice Arthur J. Goldberg: (Inaudible)
Mr. Charles Clark: Is -- I only mean to imply to you a bigger bite than I -- than I'm asking the Court to take.
But, here, I recognize the fundamental distinction to an immediate interference with the ongoing of the trial.
In other words, when the court is on the bench and someone creates a disturbance in the presence of the court, which will not allow the trial to continue, then whether you call it criminal or civil, I think this is probably the real problem, the court has the right to get this obstruction out of its way summarily.
It would have to have.
Justice Arthur J. Goldberg: and that, you say is just an extension --
Mr. Charles Clark: That's right.
Justice Arthur J. Goldberg: That exists.
Mr. Charles Clark: Yes sir, and the only thing that I say, Judge, is my basic puzzlement is whether or not it's truly penal or civil.
I think that it was -- it's a form of civil contempt actually, unless the court says “go to jail for six months.”
Justice Arthur J. Goldberg: Well, doesn't the court adjust this issue?
I think, in the Terry case, when the marshal was assaulted and the circuit court sat on just the facts before it said (Inaudible), that's obviously a criminal sanction.
Mr. Charles Clark: Yes, sir.
Justice Arthur J. Goldberg: Well, I found it difficult that your Constitution (Inaudible)
Mr. Charles Clark: Let me just say this then, Mr. Justice Goldberg.
I pray to admit that point from my argument.
I agree with the rationalization that you make entirely and I think that, as I say, that the need is -- must answer to civil sanctions.
and if Terry -- if I were arguing to this Court in Terry, I'd take the same position I take here today if my client had been sentenced to six months in jail as Terry.
I believe Terry was sentenced to six months.
Mr. Justice Field was involved and I -- that's my recollection.
They had a continuing fight and of course, as a result of this matter, the case of In re Neagle came up, which has been cited in the Court in another connection.
But, continuing Mr. Justice Black, this section of the Constitution provides in the district wherein the crime shall have been committed, which district shall have previously been ascertained by law.
and my only question about where it would go, whether in New Orleans or one of the other spots where the Fifth Circuit sits or into Jackson, Mississippi.
and by the way, they were sitting in Hattiesburg, Mississippi at the time that they originally issued the amicus order to the United States.
The panel of the Fifth Circuit which issued the order was sitting in Hattiesburg which is in the Southern District of Mississippi, which is one of the points where the alleged contempts took place.
Justice Hugo L. Black: As I understand your point, as far as it's concerned, does not depend at all on the question of where the case would filed but where jurors would have to come from.
Mr. Charles Clark: No, sir, except that I say this, Mr. Justice Black.
If this Court holds, as I submit that it should, that the right to a trial by jury is a constitutional right, then I think that you must accord us the full constitutional right and the only thing that I tell you is so that I'm not prepared to state to this Court categorically where the district is located that has this criminal element in it.
I just don't know so -- whether the court was concerned that the place where the court sat --
Justice Hugo L. Black: What you say -- what you're arguing is not --
Mr. Charles Clark: But has to come from the district.
Justice Hugo L. Black: And it isn't wherever the Constitution required a crime to be trialed.
They are required by the Constitution to give a trial by jury.
Mr. Charles Clark: At that point, and take the jury --
Justice Hugo L. Black: That's why --
Mr. Charles Clark: -- from that district.
Justice Hugo L. Black: -- you go here, isn't it?
Mr. Charles Clark: Excuse me, sir?
Justice Hugo L. Black: That's so far as your argument goes --
Mr. Charles Clark: Yes sir.
Justice Hugo L. Black: In this case, isn't it?
Mr. Charles Clark: Yes sir, that they must follow the Constitution completely and not halfway.
I just don't think that --
Justice William J. Brennan: Well, as I understand the --
Mr. Charles Clark: -- we can have some of it.
Justice William J. Brennan: I gather this from Judge Bell's opinion that the court was asked to certify or he's discussed whether to certify it, as an additional question, if respondents are entitled to trial by jury for the criminal contempt and may the order to show cause charging him be referred to the District Court where the alleged acts of contempt were committed to trial and that the court, as a court, would not certify that question.
Mr. Charles Clark: That's correct, sir.
Justice William J. Brennan: and the only question we have is whether you're entitled to a jury trial not where, if you are, it's to be held.
Mr. Charles Clark: But, Mr. Justice Brennan, I understood Mr. Justice Black taking a step further and say -- ask me what I would say about the district, and my only point is, being frank with the Court and candid with the Court, that if the holding of the Court is that trial by jury is a right granted to us under the Constitution of the United States, then necessarily, when this case gets back to the dis -- to the Court of Appeals, they're going to have to decide what district the alleged crime was committed in and that's where the jury is going to have to come from.
Now, whether the jury will come to Court or the Court will go to the jury is, again, something that's not included in my argument here.
But, do you see what I mean, Your Honor?
Justice William J. Brennan: I see what you mean but, from the standpoint of what we are to do, when we agree with you that you're entitled to a jury trial, are we to go on then to say where the trial is to be held?
Mr. Charles Clark: No, sir.
I think if Your Honors decide that it's a constitutional right, then, of course, there's the Constitution and the court below must interpret the Constitution, commence it with the other decisions of this Court in that area.
If you say we have a trial -- a right of trial by jury under statutes -- under the Clayton Act statutes, then this leaves the district question open completely.
But, I would say that if you decide on the constitutional basis, I think you would necessarily foreclose one area of decision by the court below, sir.
Do I make myself clear on that?
Justice William J. Brennan: Yes, you do.
Mr. Charles Clark: Alright.
Justice Tom C. Clark: You don't --
Mr. Charles Clark: Mr --
Justice Tom C. Clark: -- contend that further (Inaudible) is qualified here in the case (Inaudible) being the object of the contempt.
Mr. Charles Clark: We've never made that contention, no, sir.
Justice Potter Stewart: Did I understand Mr. Clark, that you, in answer to my brother Goldberg's question, concede that if, during the course of a trial, one of the witnesses or one of the spectators threw a bottle of ink at the judge and hit him on the head and -- two or three times, that the judge would have summary power to hold him in criminal contempt and sentence him to jail for 30 days?Did you concede that they -- yes, he has power?
Mr. Charles Clark: For the purpose of my argument here, yes, sir.
Justice Potter Stewart: Well, then, what happens to your constitutional argument if, for the purposes of your argument here, you make that concession and you told us before you can't -- the Constitution either goes all the way or it doesn't and yet, this is -- if you have a right to trial by jury, you have a right to trial by jury?
Mr. Charles Clark: Mr. Justice Stewart, I would say that the cases of the past are the reason and the statute of the rule of this Court, 42 (a), are the reason that I would not urge this issue to you now.
It's not encompassed within the question that I have, except by indirection.
But, I do want to say to you and to Mr. Justice Goldberg that, on a rational basis, I think that the only power that the judge ought to exercise even in a summary situation is the power of removing the obstruction quickly and efficiently from his courtroom.
Justice Potter Stewart: Well, you may then so --
Mr. Charles Clark: Then, dealing with the -- then dealing with the contemptor under regular criminal process.
Justice Potter Stewart: Well now, you say you think that that's what ought to be done.
Is that what you think the Constitution requires?
Mr. Charles Clark: Yes, sir.
Justice Potter Stewart: So, in other words --
Mr. Charles Clark: Well, it's just --
Justice Potter Stewart: -- you're asking us --
Mr. Charles Clark: It's so far out -- it's so far-field from my argument.
It's my own --
Justice Potter Stewart: It doesn't seem to me that it is far-field from your argument at all.
If the -- the Constitution either requires a jury trial or it doesn't.
Mr. Charles Clark: Yes, sir, and I -- rationally, logically, exactly what you say is so.
This would be my contention if I were here in the Terry case.
I would contend that Terry was unconstitutionally dealt with by being sentenced to six months in jail.
I would urge to Your Honors the adoption of the philosophy of Mr. Edward Livingston that these contempts ought to be pushed aside -- these contempt orders are ought to be pushed aside immediately by the court, so it can get on with its business.
But, when it comes to dealing with a true crime that the court ought to deal with that person charged with that crime under the regular criminal processes of law and not summarily without a jury.
Justice Potter Stewart: Well, now we're talking about what ought to be done or ought not to be done.
Then, we're talking about questions of policy.
What I'm asking you is about -- is a question of what the Constitution requires --
Mr. Charles Clark: The Constitution require --
Justice Potter Stewart: -- but must be done.
Mr. Charles Clark: The Constitution requires exactly what I urge to Your Honor this moment.
It requires --
Justice Byron R. White: (Inaudible)
Mr. Charles Clark: Yes, sir.
Justice Byron R. White: The ordinary crime, otherwise, punishable under the criminal law.
Mr. Charles Clark: Well, Mr. Justice White, I'm not making myself clear to the Court and it concerns me.
If I will make the appearance here that counsel did in the Terry case, I am bound to claim, and I believe emphatically, that the Constitution of the United States would have demanded that Terry be sentenced to six months in jail only after he had been found guilty by a jury, if he had demanded a jury.
Justice Potter Stewart: But if your --
Mr. Charles Clark: -- this issue was in the Terry case.
Justice Potter Stewart: But if you're suggesting that there are some contempts of Court which aren't subject to the jury trial provisions of the Constitution, you have to arrive at some way of construing those out of the words of the Constitution.
How would you do it?
Mr. Charles Clark: It's not a question of construing a matter of the words of the Constitution.
It's a -- it's question of differentiating between what is a civil sanction and what's a penal sanction.
I say that anytime a penal sanction is imposed, it must be imposed under the terms of the Constitution providing for punishment crimes.
Justice Byron R. White: You don't think --
Mr. Charles Clark: And --
Justice Byron R. White: You don't think sentencing a man for -- to jail for six months for throwing an inkwell at the judge is a criminal sanction?
Mr. Charles Clark: It's -- it's a purely criminal sanction, as I say.
In that case, I would have to contend --
Justice Byron R. White: But there was a --
Mr. Charles Clark: -- and would contend --
Justice Byron R. White: -- jury trial?
Mr. Charles Clark: That the -- that the right of that defendant had been breached in the sense that, if he asked for a jury trial, he must be accorded under the Constitution.
Justice Byron R. White: I misunderstood you.
I thought that --
Justice Hugo L. Black: I presume if --
Mr. Charles Clark: Well --
Justice Hugo L. Black: -- you're arguing --
Mr. Charles Clark: I see no -- I see no other way around that.
I -- this is -- this is an absolute bar.
As I say, the only -- the only hesitancy I had to answer you in the first place was because it's not the immediate point that I have here.
It's just something that I had pretermitted from argument because it was not the case before the Court.
It's not to certify the question.
Justice Hugo L. Black: I presume, if you're arguing the policy, you would say that where the judge tried the case and somebody threw an inkwell at him was a typical example of why the -- one of the reasons why the Constitution provided that there should be trial by juries.
Mr. Charles Clark: Yes, sir, and this Court has even --
Justice Hugo L. Black: By juries drawn generally from the community, not biased on one side or the other.
So, I suppose the judge would be slightly biased if the man had thrown an inkwell at him.
Mr. Charles Clark: This Court -- this Court had said that --
Justice Hugo L. Black: (Inaudible)
Mr. Charles Clark: Then he could --
Justice Potter Stewart: Where he threw inkwell at a member of the jury.
It had the same case, wouldn't you?
Mr. Charles Clark: Yes, sir.
This Court has said though, Your Honor please, that where time and circumstances do permit, and I think that the rule says so too, that where time and circumstances permit, that the matter of contempt should be referred to another judge for hearing where it's going to be a summary trial.
Let me, at this juncture in the argument, if I may, make a retort or rebuttal to the Solicitor's argument of yesterday.
He admits that the United States had no right to participate in Meredith versus Fair on behalf of either of the private litigants.
But, he says, when it occurred to the Government that a violation of Section 1509 had occurred that “they,” and I quote him literally here, “accordingly, went to the Court of Appeals and there, commenced” what on page 33 of my transcript he describes as this, “a supplementary ancillary independent action."
I believe that these words are self-contradictory.
I don't believe that you can have a supplementary, ancillary, independent action.
If it's ancillary, it's not independent.
If it's independent, it's not ancillary.
I would also take issue, completely and categorically, with a statement made by the Eminent Solicitor in the course of his argument that he was faced with the dilemma of a District Court which would -- which either couldn't do anything during the time of Judge Cameron's stays or, after he had been given the opportunity, it declined to act.
As I read the federal rules, and I have reference to Rule 7 (b), any time that a person moves a District Court to perform an act, it being a court of record, that motion must be made in writing.
and if any article of this argument of the Solicitor is to be taken so as to prejudice the least of my client's rights, then I think that this Court is required to get the full facts.
I have here on the table a certificate from the Clerk of the District Court of the Southern District of Mississippi which says that there never was a motion filed by the United States of America for leave to intervene in the District Court of the State of the Southern District of Mississippi as amicus curiae throughout the entire history of the merited proceedings.
We are here on this prong of his argument contending about conversations that are completely deposed of the record.
Later in his argument, he says that, at a stage in the procedure, the Court of Appeals required him to make a second entreaty to the District Court to be allowed to act in that court, and that that second entreaty was denied and that it is shown in the certified record here before this Court.
When Mr. Jaworski replies to my argument, I would ask him to enlighten both the Court and myself as to where this second appeal occurred.
The only thing that I am able to find in any part of the certificate before this Court relating to an intercession or a motion or a plea for the District Court to perform any act that it did not perform was that the Court of Appeals said that it "ascertained" that the District Court was unwilling to admit the United States into it's court as amicus curiae.
I find nothing else in the certified question, and I made the point in my brief that this matter is not in the record.
Justice Arthur J. Goldberg: Are you questioning that that is the issue, whether it's in the record right now?
Do you say that the Court must be able to, certifying the question in this Court, misstate the fact?
Mr. Charles Clark: Mr. Justice Goldberg, I am saying that if a man is to be treated with -- for a criminal offense that could result in the deprivation of his property and his liberty, that whatever is going to affect his rights are to be shown in the record of Court.
Justice Arthur J. Goldberg: I understand.
That's your legal concession but I ask you whether you're questioning the accuracy of the facts you have stated.
Mr. Charles Clark: I am unable to do that, sir.
I think that, whatever judge of the court would be involved would be the final arbiter of that.
I know nothing of it.
and I only point out to you that if it's to have the slightest affect on the defendants rights, then I think the Court ought to get the record before it and I think the record ought to be the basis for its action because I do take firm issue with the Government.
The only time that Judge Mize was asked to do something by the Government in the form of written plea that he acted on, he granted the injunction against Meredith's arrest.
He proceeded on one-day's notice to try the Chancellor of the University, the Registrar of the University, and the Dean of the School for civil contempt.
He did arrive in an acquittal of civil contempt that day.
But, let me point to Your Honors that those same three people were immediately taken before the Court of Appeals and charged in that court with the contempt of an identical order, and there's an order on the records of the Court of Appeals finding that those people are not in contempt and were never in contempt of the court's order.
So, he's been affirmed in that action and he did not refuse to act.
He did not delay justice, and I make that in the most positive manner that I can make to state.
I have gotten too verbose.
I think that the Court should consider the basis for the decision that it's asked to make here in this case and I think that the Court should be cognizant of the fact that, so many times, you've pointed out yourselves that this Court doesn't have the power of the sword or the purse.
The way that this Court brings about its desired results is by appealing to the minds and the hearts of men as a basis that what we say is right.
You don't just write a decree out and say “judgment for the defendant.”
The Court tries to say why a judgment for the defendant ought to be issued.
The Court tries to say why a case ought to be tried in a certain way.
This is because the basis for enforcement comes from an appeal to reason.
This is nothing but a piece of paper.
The Mendoza decision, nothing but a piece of paper, except that when people read the words on it, it appeals to them.
It has a meaning to them and they are willing to abide by it.
I -- I say --
Justice Potter Stewart: Suggestion --
Mr. Charles Clark: Also --
Justice Potter Stewart: Is it your suggestion that they should be willing to abide by that decision, or any other, only if the reasoning appeals to them?
Mr. Charles Clark: No, sir, but I say that this is the basis of the judicial power, Mr. Stewart -- Mr. Justice Stewart.
This is how it functions.
It doesn't function because the judiciary has the right to call up the Army.
In every case, if it's going to involve that, it has to get over into the Executive Department.
You're familiar, of course, with --
Justice Potter Stewart: Yes, yes.
Mr. Charles Clark: With Hamilton -- I mean, with the statement that Jackson made.
Mr. Justice Marshall had made his order, let him enforce it, and Mr. Justice Warren put it more aptly than I can.
We must remain vigilant to preserve the principles of our Bill of Rights lest, in our desire to be secure, we lose our ability to be free.
and I think that this is the rational principle that I would appeal to the Court on, that necessity is not the governing doctrine.
That this Court has the power in civil contempt, just as every other court does, to deal with any contemptuous act and bring about compliance.
Nobody nullified the decree.
This is not -- this is not the situation that we have.
The Solicitor talks of jury trials which would deny a court its right to vengeance, but I would speak of the glory of the English law.
He speaks of whims of unsympathetic jurors, and I would talk to you about this principle, excellency.
He speaks of the certainty of enforcement, and I would speak to you of the birthright of free men.
Chief Justice Earl Warren: Mr. Jaworski.
Argument of Leon Jaworski
Mr. Leon Jaworski: Mr. Chief Justice and may it please the Court.
In the few minutes that remain for argument, I should like to emphasize the points that we consider to be controlling of the answer that's to be given to the one question that was certified to this Court.
I went on September 10, 1962, Mr. Justice Black vacated the several stays that were granted by Judge Cameron to the mandate of the Court of Appeals.
Mr. Justice Black further ordered, in very plain language, that the judgment and mandate of the Court of Appeals shall be effective immediately.
and of course, there was added also that, pending final action by this Court on the petition for writ of certiorari, the respondents be, and they are hereby, enjoined from taking any steps to prevent enforcement of the United States Court of Appeals judgment and mandate.
Bearing in mind now that there was this order that the judgment and mandate of the Court of Appeals shall be effective immediately, it was found that there were efforts to obstruct.
It was not until eight days later, September the 18th, after these efforts to thwart became apparent that Meredith's enrolment at the University would be interfered with in every way possible, that the United States applied to the Court of Appeals for an order allowing it to appear in the case.
Now, this was the act of a government that was deeply concerned about the preservation of the administration of justice and the upholding of the integrity and authority of the judicial processes of the United States courts.
The Court of Appeals entered the order, allowing the United States to appear in the case.
And while the court, in authorizing the United States to appear, did designate the United States as amicus curiae, it went much further.
The designation of the United States as amicus curiae in cases similar to this situation had occurred in both the Fahlbusch cases and the Bush cases, and it was used again in this case.
But, the order of the court is the instrument to which we will look to see what authority the United States was given to appear as amicus curiae in the case.
In every respect, may it please the Court, the United States was given precisely the same rights, the same authority that any party to a suit could be accorded.
It was authorized to enter the case “with the right to submit pleadings, evidence, arguments, and briefs and to initiate proceedings for injunctive relief and proceedings for contempt of Court.”
So, in a real sense, may it please the Court, the order entered and here involved emanated from an action brought or prosecuted in the name of the United States.
Justice Hugo L. Black: In what kind of cases was that authority given?
How broad is it?
I haven't looked at it.
Mr. Leon Jaworski: It was given in the case in which the United States -- in this case which it appeared --
Justice Hugo L. Black: I'm not talking about this case.
Mr. Leon Jaworski: Oh, I beg your pardon, sir.
Justice Hugo L. Black: The law, what kind of cases can the Attorney General appear in and make it a Government case, insofar as the right to trial by jury is concerned --
Mr. Leon Jaworski: When --
Justice Hugo L. Black: What authority is that?
Mr. Leon Jaworski: Well, Mr. Justice Black, when the administration of justice and its processes are at stake, as was true in this case.
Justice Hugo L. Black: Is that the abstract statement.
Mr. Leon Jaworski: Yes sir, but --
Justice Hugo L. Black: What is the authority?
Mr. Leon Jaworski: It has been done.
Justice Hugo L. Black: When is he allowed?
What kind of -- can -- as between any two litigants in the Court, does that mean -- I'm asking you this to find out, does that mean that the Attorney General can appear and whenever he, by his own choice, decides to appear, that deprives a man of a right to a trial by jury which he would otherwise have had?
Mr. Leon Jaworski: Mr. Justice Black, I would say that it has been done in other cases, of course, in the Fahlbusch and Bush case.
But the precise basis for its being done is because the court is powerless unless it has the assistance of someone else to help it enforce its orders.
Justice Hugo L. Black: Well a --
Mr. Leon Jaworski: Those are the --
Justice Hugo L. Black: Assuming that to be true, that I fully agree with what you've said about the necessity of the Government having that power and wisdom in its exercise is necessary to achieve end to justice.
What I'm asking is with reference to a situation where the statement is and may be a threat that when the Attorney General does appear, the right to a trial by jury of the litigants as bequeathed, which existed before, can be taken away by his mere choice of the appearing in the Court.
What kind of cases are those?
Are they limited in any way?
Mr. Leon Jaworski: Well, they're not limited in any way.
No, sir, except that, of course, we do have a statute that expressly provides that where the United States is a party, and that's where the right emanates from, that where the United States is a party to the proceedings, where the United States brings the action and prosecutes it, that the right of trial by jury that is given under Sections 402 and 3691 do not apply.
Justice Arthur J. Goldberg: The rest of the validity on the case and with the Court of Appeals putting aside the jury question for both, then, imagine bearing the involvement in the Court of Appeals.
The Court of Appeals then permitted a third party to come in, following the extension in your present proceedings for injunction in that action.
Unless you basically filed in the District Court where they prosecuted arrest?
Mr. Leon Jaworski: I think that's correct, normally, they are --
Justice Arthur J. Goldberg: Now, this injunction --
Mr. Leon Jaworski: But --
Justice Arthur J. Goldberg: -- by the (Inaudible)
Was their intention described in the action by the ancillary to (Inaudible) Government issued on the day they got an injunction, wasn't it?
Mr. Leon Jaworski: It was an independent restraining order, that's correct.
Justice Arthur J. Goldberg: And you submit they have never taken the rest of that (Inaudible) in this type of procedure and kept it on sanction?
Mr. Leon Jaworski: Well, there have been other cases in which it has been, Your Honor.
Now, if you -- if you ask whether there's any that this Court has written on that particular subject, I cannot cite you to a particular case.
Justice Arthur J. Goldberg: Even a court case is going to follow Bush here?
Mr. Leon Jaworski: The Bush case.
Justice Arthur J. Goldberg: Is there anything in your argument of the fifth (Inaudible)
Mr. Leon Jaworski: It certainly did, sir.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Leon Jaworski: They order to gave at the authority to proceed as a party when it proceeded, yes, to ask for injunctive relief.
I do know that it was given particular right to so appear.
Justice Arthur J. Goldberg: It wasn't then that had subject the legislation in its own terms here and the Government asked us you to (Inaudible).
Mr. Leon Jaworski: I'm not familiar with that, Mr. Justice Goldberg.
I should add of course that, in both, the Fahlbusch case as well as the Bush case, this Court refused the writ of certiorari.
Now, perhaps the word “amicus curiae” was not the choice that's almost accurate designation to use.
But, are we going to disregard what the Court actually said on the power that was given and if we did, of course we would be substituting a form for substance.
Chief Justice Earl Warren: Is the record --
Mr. Leon Jaworski: Not as well --
Chief Justice Earl Warren: Is the record adequate here to show there was a second order and what it was, the one that Mr. Clark was talking about?
Mr. Leon Jaworski: The record here, may it please the Court, that we have that shows the matter that was brought into issue is contained in what the Court -- the four members of the Court who wrote the opinion of the four contains and it does set forth.
Chief Justice Earl Warren: What does it say?
Mr. Leon Jaworski: On page 5, may it please the Chief Justice, it has said that, on September 18, 1962, this Court Judges Brown, Wisdom, and Bell, after first ascertaining from the District Court that it declined to enter an order in this form, entered its order allowing the United States to appear in the case.
The order is cited.
It -- appearing from the application, United States filed a stay that the interest of the United States to the due administration of justice and integrity of the processes of its courts should be presented in these proceedings, and so on.
And then, the order specifically set forth what I've mentioned a few minutes ago as to the power and the authority that was given.
I should like, because --
Chief Justice Earl Warren: That's in the record, is it?
Mr. Leon Jaworski: It is sir, yes.
And I should also say that in the question certified the Court specifically points out that the amicus curiae in this case was given the right to initiate proceedings for injunctive relief.
That is a part of the certified question that is here submitted.
There has been, from the time that this Court first commented upon the question of contempt trials -- criminal contempt trials, there has been followed the belief of principle that there was an inherent in the Court the right to vindicate its authority to enforce its orders, to protect itself from insult, as one of the cases of this Court says, without the necessity of calling upon a jury to assist in the exercise of its power.
and this Court has always considered that the exercise of such a power was necessary so that the lawful judgments of the Court maybe respected and enforced.
It has pointedly said that, to compel obedience to its orders, it must have the right to inquire whether there has been disobedience and that the submission of the question to a jury would operate to deprive the proceeding of half of its sufficiency, as it was said in the Debs case.
Chief Justice Earl Warren: Is there any limit to the sanctions that the court can impose under your theory?
Mr. Leon Jaworski: Under the criminal contempt proceedings?
Chief Justice Earl Warren: Yes.
Mr. Leon Jaworski: No, Your Honor.
Chief Justice Earl Warren: None, whatever?
Mr. Leon Jaworski: None, whatever.
Of course it would have to be reasonable.
It would be subject to review.
Justice William J. Brennan: Well, yes, but the amount of punishment is certainly subject to review here.
Mr. Leon Jaworski: That's correct.
That's what I say.
Justice Tom C. Clark: We've done this --
Mr. Leon Jaworski: That it has been done.
Justice William J. Brennan: We've done it several times.
Justice Tom C. Clark: This case in --
Mr. Leon Jaworski: That's right.
Justice Tom C. Clark: Out in California.
Mr. Leon Jaworski: That's right.
Chief Justice Earl Warren: I just ask what your theory was.
Mr. Leon Jaworski: Yes, sir.
It is clear from a --
Justice Hugo L. Black: In a -- in a statutory limitation?
Mr. Leon Jaworski: No sir, not at all.
Justice Hugo L. Black: So, the limitation is whatever this Court could be persuaded was too much --
Mr. Leon Jaworski: Correct, Mr. Justice Black.
Justice Hugo L. Black: At that time, isn't it?
Mr. Leon Jaworski: And if this Court has exercised that right of limitation.
I see that my time is up.
Chief Justice Earl Warren: If you have a closing sentence or two, too, you may make it there --
Mr. Leon Jaworski: Mr. Justice Warren, I --
Chief Justice Earl Warren: In order to --
Mr. Leon Jaworski: I very much appreciate it because there's one thought that I wanted to convey to the Court.
There is no greater menace, no greater threat, in my opinion, to the proper and orderly administration of justice than the willful disobedience of court decrees.
Isolated but notorious instances of contempt that are not effectively dealt with, with every possible deterrent being used, will soon multiply to common place occurrences and I submit that our system of justice should be insulated, as was done in the Green case, against this threat by retaining the effective deterrent that the Green case pronounces.
Now, I have a high regard for the trial -- right of trial by jury, Mr. Chief Justice and other members of the Court, but if the court decrees are not to be evade --
Justice Hugo L. Black: I presume you would give it in every kind of case, except a crime that involves the courts.
Mr. Leon Jaworski: I would give it in every kind of case, except in the cases where I saw that the very administration of justice will be completely destroyed --
Justice Hugo L. Black: and I --
Mr. Leon Jaworski: Unless there are effective means found --
Justice Hugo L. Black: Is my statement --
Mr. Leon Jaworski: -- Mr. Justice Black.
Justice Hugo L. Black: -- wrong that you believe in the trial by jury, as the Constitution guarantees it, in the case of every kind of crime except one which involves a crime connected with the courts?
Mr. Leon Jaworski: That is certainly true, Mr. Justice Black, and this Court has so said itself in the Green case, as it did in one or two other cases.
And I would say, again, that if court decrees are not to be evade, what is the right of trial by jury worth?
And if court decrees are not to be evade, may it please the Court, what is the Constitution worth?
Justice Hugo L. Black: That was the argument that was made in the finding of the jury that convicted William -- refused to convict William Penn, wasn't it?
Mr. Leon Jaworski: I wasn't aware of it --
Justice Hugo L. Black: You've got to have some --
Mr. Leon Jaworski: -- Mr. Justice --
Justice Hugo L. Black: -- kind of court order so that the jury couldn't decide the case if it's too dangerous.
Mr. Leon Jaworski: I don't think it's too dangerous, Mr. Justice Black, but I just think that there is needed every sort of insulation and every sort of deterrent against the violation of court orders.
It is that vital to the administration of justice.
Thank you, Mr. Chief Justice.