CARTER v. JURY COMMISSION
Legal provision: Equal Protection
Argument of Norman C. Amaker
Chief Justice Warren E. Burger: arter against the Jury Commission of Greene County, Alabama.
Mr. Norman C. Amaker: Mr. Chief Justice and may it please the Court.
This case arising from Greene County, Alabama is on appeal from a three-judge court for the Northern District of Alabama.
Like the Turner case heard at the close of yesterday's session concerning Georgia's jury selection law, the issue posed is that of the constitutional validity under the Fourteenth Amendment of Alabama statute which vest successive discretion in jury officials in that state in the selection of jurors.
Our submission is that the use of statutes such as these in those states like Alabama which have a demonstrated history of discrimination against black people in the jury selection process is the major cause of the continuing phenomenon of racial exclusion of blacks from the opportunity for jury service in state courts.
That's a phenomenon which is all too common place as this Court's experience in jury discrimination cases for the past 90 years attests.
Unknown Speaker: Supposing you didn't have this history of discrimination, would you still say the statute is unconstitutional?
Mr. Norman C. Amaker: If you didn't have that history of discrimination, I would say that the statute is susceptible of abuse and therefore, if a different kind of demonstrated injury were made to appear that the Court would have to hold the statute unconstitutional.
Unknown Speaker: I'm going to sharpen the question.
Supposing there was no evidence that it was affirmatively demonstrated that there had been no discrimination other to say about the statute?
Mr. Norman C. Amaker: I would say that the statute is vague, lacking in standards, susceptible of abuse.
I would say that the Court would knock the issue of whether the statute was constitutional would not be present because there would be no history of the application of the vague standards to a situation in which one could demonstrate that constitutional rights had been violated.
That's not this case.
Every single -- all of the vagueness cases in this Court, the free expression area and the criminal area are cases in which some litigant came to the Court and said that the cause of these vague standards which give excessive discretion to officials, my constitutional rights are being violated and until a case of that kind reaches this Court, and it reaches this Court in this case and in Georgia and it has not as for example in Wisconsin or Maine, the kinds of questions that we were discussing yesterday.
The Court obviously has no occasion to declare the unconstitutionality of the statute.
But that has been the consistent pattern of litigation and decision making in this Court.
Chief Justice Warren E. Burger: Then it is the statute as applied that is the --
Mr. Norman C. Amaker: Only in --
Chief Justice Warren E. Burger: -- back in the complaint, isn't it?
Mr. Norman C. Amaker: Only in a very narrow sense.
If what you're talking about is the matter in which the jury officials have used their discretion, which is what this --which is what the issue here is concerned with, then you're talking about -- then that's a different question from the way the District Court addressed the question.
They simply said that if we issue an injunction, which tells these jury officials that they are no longer to discriminate that that's sufficient.
What I say is that does not deal with the problem of discretion.
That does not deal with the capability for discrimination that the statute invites, and therefore the only way that you can deal with that is to deal with the source of the problem which is the statutory standards itself.
That's exactly what this Court did in some of the cases that we cited in our brief involving discrimination against blacks in voting.
That's what this Court has done in all the vagueness cases that have come before it.
This is by now no novel doctrine in this Court.
You know in challenging this case, therefore Alabama's jury selection statute, I stressed of the outset of firm belief that this longstanding problem of racial discrimination in jury selection will not be solved, unless the Court respond to this challenge by voiding to provisions of the statute involved here and requiring the use of fairly administered objective standards for determining what person shall be listed on the roles of perspective juries on the State.
Justice William J. Brennan: What would be your suggestion Mr. Amaker as to objective standards?
Mr. Norman C. Amaker: The kind -- one suggestion, I think it's exemplary only are kinds that the Congress enacted in dealing with the same problem in the context of the federal jury selection system.
After the key man system had been exposed as an apparatus whereby discrimination was being practiced against groups and the groups involved avail of principally Negroes.
In the federal system, Congress responded to that challenge by enacting the jury selection in Service Act of 1968.
Justice William J. Brennan: Am I right that Congress was asked to enact those same standards for selection of state jurors?
Mr. Norman C. Amaker: It -- well, let me show up in that they -- the proposed, there were two Bills.
They were both part of the 1966 Civil Rights package.
Now the Bill with respect to federal jury selection was taken out and enacted last year.
The Bill that was proposed in 1966 passed the House.
Now, they were in that -- there was in that Bill, Sections 203 (a) and (b) which together gave to the District Courts the judgment of whether they could require objective criteria in the state jury selection process.
So it is pretty clear that the response --
Justice William J. Brennan: Does that Bill suggests what the criteria would be?
Mr. Norman C. Amaker: The Federal Act does and they are --
Justice William J. Brennan: What I mean, one that where the related selection of jurors in the State?
Mr. Norman C. Amaker: So far as I know Mr. Justice Brennan, it did not state what they should be.
The Federal Act stated the very simple ones of age, residency, absence of a felony conviction and the ability, the simple ability to read and write the English language as determined again objectively, not subjectively as determined by a person's ability to fill out a juror qualification form.
Now, that is the system that is in fact in operation throughout the federal system.
As I indicated in my reply brief in this case, District Courts throughout the country who have been faced with suits of the kind that this is an affirmative action seeking injunctive relief have directed or suggested to state officials that they ought to take a look at what the Congress did with respect to that federal statute, as a means of remedying the problem.
That means to me is that it is pretty clear that 90 years of litigation and the repeated admonition to jury officials that they must reform their system really hasn't worked.
And the only kind of reform that is an essential step is to deal with the source of the problem which is the discretion vesting statutes like the one involved in this case.
Justice Potter Stewart: But do your really think that's the source of the problem, or do you think the source of the problem is simply an unreconstructed intention required to discriminate on the basis of those who were the job of picking juries?
Mr. Norman C. Amaker: Well, it's pretty clear Mr. Justice Stewart that that's true, but if the question that you have to ask is what can you deal with, what can a court deal with?
How do you remedy the problem?
Justice Potter Stewart: Well, now --
Mr. Norman C. Amaker: I don't think that it's possible for this or any other court to remedy that problem by an injunction which says, administer the statute fairly.
The Court has done that consistently for 90 years.
What it can do consistent with the decisions in this Court under the vagueness doctrine is to deal with the State enactment which permits those unreconstructed attitudes to be effective.
Justice Potter Stewart: But on this case, and I'm just looking at a paragraph in your own brief on page 10 in which you summarized the injunction that was granted, it was against systematic and exclusion of Negroes from the jury roll of Greene County, and also an order requiring at a new jury roll showing the race and if available the age of each juror be filed with the court within 60 days, and a report showing the procedure used in compiling it.
Now, isn't that the way to get at this rather than to excise a couple of adjectives from the statute which --
Mr. Norman C. Amaker: No, that isn't the way to get at it.
If that were the way to get at it, Mr. Justice Stewart, you would not have the constant re-appearance of these jury discrimination cases in this Court and in courts throughout the nation.
And why I'm talking about the nation, I'm talking about the courts in that Southern Tier States where the problem has past persisted.
And just excising the language isn't effective.
What you have to do is to require that there be objective standards.
It doesn't strike neither that is such a tremendous problem.
Now, there are 22 states to be sure which have similar language.
Unknown Speaker: You mean that we write the standards?
Mr. Norman C. Amaker: Pardon me?
Unknown Speaker: You mean that we should write the standards?
Mr. Norman C. Amaker: Oh!
I don't think so.
I don't think -- I think that the Court can say one of the district judges in cases we've cited here simply said, "We suggest to you that you use objective criteria and to help you, we refer you to what the Congress did in the Jury Selection Service Act."
I don't think that there would be really anything wrong with the Court indicating what kind of objective criteria would be desirable, but I think that it's important for the Court to indicate that there must be some kind of objective criteria.
Of the States in the union, there may be 22 which have this kind of vague language and you can document that in a number of them.
It has been used and employed for discriminatory purpose, and that's why the case is here but that still means that the majority of the States have not found it necessary to operate a fair jury selection system by using language of this sort.
My own submission is that when you have language of this sort and you put that, you give the discretion to persons who are then reconstructed in their attitudes and who are all white in a community like Greene County which has a black majority that you get the kind of results that are shown on this record, and those results have been documented for several years.
There was a prior case in the District Court showing what happened and there was declaratory relief there, that didn't work.
Now, when you issue an injunction to jury officials, it was really telling them to do better.
It seems to me that that has been the decision making process in this Court for decades.
Chief Justice Warren E. Burger: Are there some states which have more precise standards that which still practice discrimination in this regard?
Mr. Norman C. Amaker: There may be Mr. Chief Justice.
I don't know about the case.
What I do know is that the cases which have come to this Court and the cases in which this issue has normally raised are cases which have states -- which have standards like these.
Chief Justice Warren E. Burger: Well, are all the Southern States using vague standards are some of the 22 --
Mr. Norman C. Amaker: Well, not --
Chief Justice Warren E. Burger: -- all of the 22 including the Southern Statesdon't
Mr. Norman C. Amaker: Well, not all of them.
Of the 22 are, I think there were seven are Southern States.
That's one out of three.
If by defining Southern States, you're talking about 11 or 12, I get it.
That's still a majority.
But the question it seems to me is really not how many states are or not employing language of this kind.
It's the abuse creating mechanism that language of this kind gives.
And again, I resort to what this Court has done on the vagueness cases traditionally.
That's exactly what was done in United States versus Louisiana and some of the other cases that we've cited here.
There is a second issue that's presented here and that is whether the District Court in this case and on this record, should be upheld in refusing what we think is an essential element of the relief to which appellants are entitled in this county with its history of racial exclusion of blacks from the opportunity for jury service.
That is the vacation of the all white jury commission of Greene County, Alabama.
Justice Potter Stewart: Which has state the jury commissioners are appointed by the Governor?
Mr. Norman C. Amaker: They're appointed by the Governor who was a -- who's named at the complaint as a defendant.
Justice Potter Stewart: Unlike yesterday's case --
Mr. Norman C. Amaker: Unlike yesterday's case --
Justice Potter Stewart: -- where they were reported by superior court judge.
Mr. Norman C. Amaker: -- by the judge, right.
Justice Potter Stewart: And what's your suggestion as to the remedy that should be accorded in the event we agreed with you on the merits of this point.
Mr. Norman C. Amaker: Well, I start from the proposition that the District Court had a record of discriminatory action of a long period of time taken by jury officials all of whom were white.
I look at the statement in Louisiana v. United States which indicates that the District Court when dealing with this problem of racial discrimination has the duty to render a decree that will give effective relief.
Now, it is true that as on our first submission, an essential first step is to get rid of a vague standards and to require objective criteria, but it is also pretty clear that there may well be a time lag between the time that that relief becomes effective and that in any event, it is a practical impossibility to excise all discretion from the administration of laws.
On that basis then, it seems to me that in a community, the majority whose citizens -- the vast majority whose citizens are black, where you can demonstrate that white officials have consistently discriminated and there is no easier demonstration to make than on this record.
That as an essential item of relief, the District Court in order to give the complete relief to which the parties here were entitled should have required the appointment of some black members to the jury commission.
Justice Potter Stewart: Now, as I understand it Mr. Amaker, there are three jury commissioners in each county?
Mr. Norman C. Amaker: That's correct.
Justice Potter Stewart: Appointed by the Governor of the State.
Mr. Norman C. Amaker: Appointed by the Governor for an indefinite period until the successor is appointed by --
Justice Potter Stewart: And your suggestion is that the Governor of the State should be required to appoint what, at least one of the three, or two out of three, or he should be requiring to appoint jury commissioners which reflected so far as possible the percentage of population of each county of that way?
Mr. Norman C. Amaker: Well, I don't think that you have to go that far.
I think what the Court had before it was a situation in Greene County.
The District Court could state as a matter of its discretionary relief.
It could state that at least one, it could divide -- it could perhaps even order an election and in the county like Greene with now with the blacks on the voting roles and abundance for the first time they put there in the last couple of years, it was very probable.
It had some options.
I'm not prepared to say --
Justice Potter Stewart: -- it would also then of course you're saying, it should also invalidate the state law that confers upon the Governor the power to appoint jury commissioners.
Are you suggesting that --
Mr. Norman C. Amaker: I'm not suggesting that.
I'm suggesting that --
Justice Potter Stewart: Or if there were no election then this would be in violation of the state law which provides that the Governor shall appoint the jury commissioner.
Mr. Norman C. Amaker: No.
Well, I'm simply saying that the course of conduct of the appointment of all white jury commissioners in this county has already violated the Constitution.
And therefore, as a matter of relief, I see nothing wrong with the District Court stating that in order -- "Because of that of that, we are going to require you to, in this county at least, appoint commissioners in a different way."
And that is, this Court has never indicated that under the supremacy clause, state laws and regulations once they were demonstrated to have play their part in the violation of the constitutional right could not be enjoined, or that the court could not as a court of equity, give the kind of relief to which the court deemed the parties were entitled.
Justice Potter Stewart: Well then you are suggesting that at least with respect to Greene County, the Law of Alabama that converges upon the Governor the power and the duty to appoint jury commissioners is invalid?
Mr. Norman C. Amaker: That's right.
That was the claim in the District Court, and that's the claim that we urge here.
There is another point which I think I should address myself to that is the District Court's view in its opinion that it could not void the vague statutory standards because this Court had never held these criteria to be void for vagueness.
And it's cited for that proposition, Cassell versus Texas which is one of a group of five cases involving the Texas grand jury system from -- decided in this Court from 1940 to 1954.
I cited also an old 1910 case called Franklin v. South Carolina.
Now there is an argument addressed to both of these in our brief.
The submission is one that the Cassell case, in that case the issue was never raised on the court without inquiry indicated that the Texas statutory scheme was alright.
The Franklin case it seems to me is a case which has now really been eroded entirely by the later development of the vagueness doctrine in this Court has no continuing validity.
And neither of these cases, it seems to me, should be used to prevent the Court from granting the relief that we urge here.
If there are no further questions, I will reserve the remaining time for rebuttal.
Chief Justice Warren E. Burger: Mr. Hall you may proceed whenever you're ready.
Argument of Leslie Hall
Mr. Leslie Hall: Mr. Chief Justice, members of the Court, I think I should first address myself to a little problem that came up yesterday afternoon, and that was in the Georgia case.
There was a question about what a freeholder was.
Now, that demonstrated that that was considerably from the Georgia case.
In the first place, you don't have to be registered voter in order to be on the -- put on the jury roll.
The Alabama statute provides that you can --
Unknown Speaker: You can be a householder?
Mr. Leslie Hall: Sir?
Unknown Speaker: You can be a householder.
Mr. Leslie Hall: Householder or freeholder, right sir.
Now, that doesn't mean you have to own property.
It means that you can even live in a house, you could be a tenant.
The Alabama statute is much more liberal as far as qualifications of persons who are put on the jury roll.
I'd like to point out to the Court what the District Court said on page 364 of the appendix.
"Alabama is the most enlightened of the States in requiring that broadly inclusive community list to be consulted and that all eligible persons to be shown on the roll."
Now, Mr. Amaker has made quite a point here about Greene County.
Greene County, I have to admit, has had a whole lot of fault.
There's no question about that, but on the other hand, we come around to this point and that is the point that it is not incumbent upon this Court or any other court that is say, to the Governor of Alabama who he should appoint as members of the jury commission.
I think it's quite obvious, quite clear this Court and to almost any court in the land that we had three judges down there.
Justice Goldbold, Justice Brooms, Justice Allgood who were very competent and capable and they do what they were doing when they set forth the guidelines for the jury commission of Greene County to do something about that thing.
Now, we turn right around to this other point again.
Mr. Amaker suggests that this Court dictate to the Governor of Alabama who he should appoint as member of the jury commission.
Now that almost is like dictating to the President of the United States who he should appoint to some official position.
I don't think that makes sense.
I don't think this Court has any authority to do it, and I don't think any court in the land has the authority to say to a Chief Executive of a state or to the President of the United States or any other executive body who he should appoint.
Chief Justice Warren E. Burger: How does the Court reach then the questions --
Mr. Leslie Hall: Sir?
Chief Justice Warren E. Burger: How does the Court reach then under court of remedy for the situation that you seem to concede exists in Greene County?
Let's assume for the moment that you're correct in your assumption that it would not be feasible if for no other reason, for a court to say who should be appointed to jury commissioner?
What is a court to do when it finds it over a long period of time, a population which is roughly divided equally, let us say, turns up with no people of one group on the jury list or very few of them, do you suggest that's beyond the reach of the courts?
Mr. Leslie Hall: I don't think it's to the pretty right to the court to say who should be appointed as jury commissioners.
Chief Justice Warren E. Burger: No, I'm talking now about the selection of jurors after laying aside the question of the jury commissioner's appointment.
Mr. Leslie Hall: Well, --
Chief Justice Warren E. Burger: If the jury turned up all whites in Greene County or any other county for a long period of time, are you suggesting that nothing can be done about it?
Mr. Leslie Hall: We have 67 counties in the State of Alabama, Your Honor.
Chief Justice Warren E. Burger: Yes, but we're only dealing with Greene County today.
Mr. Leslie Hall: Yes, sir.
And if this Court robs the scope of the thing to say that "We're bringing cash out to this net."
Now couldn't that apply it to all 67 counties?
I don't know.
But the only thing I know is it was decided in this case, the Swain case.
And Mr. Justice White wrote the opinion on the case that there has to be a broad representation, isn't that correct sir?
Justice Byron R. White: You're making the argument.
Mr. Leslie Hall: Yes, sir.
Justice Potter Stewart: Well, I suppose your answer to the Chief Justice's question is that the way to get out it is the way this District Court got at it.
This Court in its opinions said there had been a declaratory judgment put down in 1967 and that had not remedied the situation, that there continued to be recalcitrance, and that now the time come for an injunction and this Court issued an injunction which was specific and stringent.
And I suppose your answer is that the way to get out it is the way this District Court got at it, rather than to enjoin the Governor of the state as to who he should appoint as jury commissioners.
Isn't that the answer to the question?
Mr. Leslie Hall: I would feel that way, yes sir.
I don't think that court has the power to do it.
Justice Potter Stewart: Going to do what --
Appoint the --
Mr. Leslie Hall: To issue an injunction to the Governor of the State of Alabama telling him to appoint one Negro, two Negroes, black people pardon me, or three on the permission.
Chief Justice Warren E. Burger: Certainly a federal court has not only has the power but the duty, doesn't it, under the Constitution of the Fourteenth Amendment of the Constitution to see to it that there is no racial discrimination on the selection of jurors in Greene County or any other county in any state of the union?
Mr. Leslie Hall: Oh!
I think it's quite clear that Alabama -- they're trying to solve the situation, but we haven't barely solve that.
Chief Justice Warren E. Burger: But do you think the order which has now been entered by the district judge will produce a solution that's a reasonable one?
Is that your position?
Mr. Leslie Hall: Well, we've got three very competent judges down there and I think it probably will solve it.
I don't know why they're appealing from that portion of it anyway.
The only thing I wonder about is why they're appealing from the other point.
Unknown Speaker: Why they wanted it?
Mr. Leslie Hall: Sir?
Unknown Speaker: What you're saying on the last part of your statement.
The only thing you wanted about was why?
Mr. Leslie Hall: Well, I was wondering why the appeal from the -- they got a favorable decision on the first part, and now they wanted us to just change that old expression and have a court decree that the Governor's got to do this, that and the other.
Now I don't think so.
Unknown Speaker: Probably not in the record, but what's happened in relation to the remedying this situation since this plea was entered, could you tell me in your time.
Are there more new rolls on the jury of this?
Mr. Leslie Hall: Yes, sir.
Considerably more, in fact I try to tell you so not too long ago in connection with the District Attorney and there's (Inaudible) turned up more Negroes than there were white people.
Justice Potter Stewart: Has this injunction been complied with?
I'm referring to the language appearing on 27 (a) of the jurisdictional statement.
It said "Defendants are ordered to take prompt action to compile a jury list for Greene County, Alabama in accordance with the Law of Alabama and the constitutional principles set out in this judgment.
They are ordered to file with this Court within 60 days a jury list and so compiled."
Mr. Leslie Hall: That's been done sir.
Justice Potter Stewart: That's been done?
Mr. Leslie Hall: Yes, sir.
Justice Potter Stewart: That of course wouldn't be I suppose in the record, just because --
Mr. Leslie Hall: It wouldn't be reflected in our appendix, no sir.
Chief Justice Warren E. Burger: Very well.
Do you have anything further counsel?
Mr. Leslie Hall: Sir?
Chief Justice Warren E. Burger: Do you have anything further to present to the Court?
Mr. Leslie Hall: No, sir.
I thank this Court.
Chief Justice Warren E. Burger: Thank you Mr. Hall.
Amaker you have --
Rebuttal of Norman C. Amaker
Mr. Norman C. Amaker: Mr. Chief Justice, in response to Mr. Justice Stewart's inquiry as to what occurred.
The District Court required the filing of a report as indicated in its opinion within 60 days.
That report was filed in November of last year.
It is in the -- the report is in the exhibits that are on file on the clerk's office.
I looked at it yesterday.
There is no numerical compilation, scanning it in the case that there are approximately 50% blacks on that list.
I don't know which where the balance is tipped.
Justice Potter Stewart: There are racial designations on the list, are there?
Mr. Norman C. Amaker: They were required on --
Justice Potter Stewart: On accord with the --
Mr. Norman C. Amaker: Yes, yes they are.
Now, whether the district -- whether the jury commissioners will consistently do that, I don't know.
Prior to that injunction there were no racial designations.
Justice Potter Stewart: Well, in the absence of some particularized reason, I suppose the complaint to be made of the fact that there -- were racial designations.
Mr. Norman C. Amaker: Well, I think that the particularized reason appear from these records, you see.
Justice Potter Stewart: Right.
In accord with this injunction this probably --
Mr. Norman C. Amaker: But that has been -- that was the same thing that Congress did you know, in the Jury Act, and in both the Jury Bills because the problem we've had in these racial discrimination cases over the years, Mr. Justice Stewart, is that you haven't been able to find out very often or at least not without you'd been able to would not about considerable amount of difficulty what the racial breakdown was.
Now, the Congress recognized that that it was important in order to demonstrate racial discrimination that what the numbers were.
But let me just --
Justice Hugo L. Black: May I ask you, are you familiar with -- in the last election, how many colored people were elected to county office?
Mr. Norman C. Amaker: The very last one --
Justice Hugo L. Black: In Greene County.
Mr. Norman C. Amaker: In Greene County?
Justice Hugo L. Black: Yes.
Mr. Norman C. Amaker: There were at least three or four.
This was after this Court's decision on Hadnott v. Amos.
Justice Hugo L. Black: Yes.
Mr. Norman C. Amaker: There were --
Justice Hugo L. Black: Now, in serving now.
Mr. Norman C. Amaker: There are about three or four, I --
Justice Hugo L. Black: What offices are they?
Mr. Norman C. Amaker: I'm not entirely sure what the offices are Mr. Justice Black.
They are on the county commission.
And I think that's a three or four men-commission.
They're on that county commission.
Justice Hugo L. Black: As I recall it, there were some of the key officers of the county.
I mean by key officers who could be helpful in bringing about the elimination of discrimination.
Some of the key officers of the county were elected who were colored, were they not?
Mr. Norman C. Amaker: There were some blacks elected, yes.
And as a consequence of after this Court's order in Hadnott.
Justice Hugo L. Black: Of course because it had not been that way before.
Not before the recent opinions that attempted to provide methods to see that each race had its proper right to vote.
Mr. Norman C. Amaker: Well that was true in that voting context, and that's really the cognitive.
that's really our submission -- a part of the submission with respect to the jury commission that's in our brief here.
Justice Hugo L. Black: Yes.
Mr. Norman C. Amaker: That, you know, the Civil Rights Commission's Report documented the alienation of blacks in -- throughout the south generally in Alabama and Greene County particularly.
And we indicated that one of the ways you cure that since jury service is kind of a twin of voting service in terms of the general impact on the public life community that it's extremely important, particularly in a county like this just as it was in the voting situation to have black people serving on the jury commission.
Justice Hugo L. Black: Now the Court have black people as bonus.
Mr. Norman C. Amaker: Oh!
Of course, of course but the jury commission at this point is not an elective office as a general proposition.
I'm simply saying that on this record of course --
Justice Hugo L. Black: We must recall that if they could -- if we could take out of the State its power to select its officials in anyway they choose either by election or by appointment that that would cut against either one when become rules, wouldn't it?
Mr. Norman C. Amaker: Oh!
I don't see --
Justice Hugo L. Black: Say the courts could take the power instead of the legislative branch.
Mr. Norman C. Amaker: No, but I'm not -- the submission is not nearly that broad Mr. Justice Black.
In Louisiana --
Justice Hugo L. Black: I understand it is a --
Mr. Norman C. Amaker: Pardon me?
Justice Hugo L. Black: It is a rather unique thing to suggest that the courts of the nation have a right to change the legislation in a state and say that instead of having appointments, they should have election.
It might be wise, I'm not saying it wins, but it might be rather unique in the history of our building, wouldn't it?
Mr. Norman C. Amaker: Well, I think it has occurred on occasions and it has occurred and the decisions of this Court reflect those occasions.
Louisiana v. United States for example, was a case in which the District Court and this Court later affirmed a decree by that court requiring the registrars not to use a citizenship test which because of its discriminatory impact on the right of Negroes to vote.
Justice Hugo L. Black: That's right.
Mr. Norman C. Amaker: The last -- and that's one example, that was unique.
Justice Hugo L. Black: Yes, but that's not an example is it of changing the law in reference to selection of officers saying how this shall be selected invalidating the law which provides to appointment of certain people.
Mr. Norman C. Amaker: I don't see that as an invalidation of the law because I see that only as a remedial aspect of the court's equity powers once you have a demonstrated constitutional violation.
Justice Hugo L. Black: [Voice Overlap] get away from rules and semantics because here we are up against a real practical situation.
You don't see that if we were to hold that the Governor can not appoint as the state law provide that that would be interfering with the election laws of the State?
Mr. Norman C. Amaker: Well, I don't -- no, I don't see that --
Justice Hugo L. Black: That's through the core?
Mr. Norman C. Amaker: It's not an election law and --
Justice Hugo L. Black: But it's an election law that he shall appoint, I mean it's a selection of officers that he shall appoint.
Mr. Norman C. Amaker: But when I addressed the question of how do you deal with this terribly intractable problem of racial discrimination when the Governor has consistently appointed only white jury commissioners, and those jury commissioners has consistently discriminated against blacks, I think our Constitution can reach that.
And I think that this Court can say that as a matter of remedy in this situation without invalidating that law as general proposition --
Justice Hugo L. Black: But why wouldn't it invalidate it?
Mr. Norman C. Amaker: I think if the invalidation occurs, Mr. Justice Black, it occurs only to in those to use your term, unique situations in which it is clearly demonstrated as it is in this case that this kind of wide ranging deep seeded discrimination has occurred.
Last year for example, as a matter of remedy with respect to the teacher integration in the Montgomery County case, this Court upheld the decree whereby district judge decided that the way to get at this problem, because other methods had not solved the problem, but the way to get up the problem was to acquire a mathematical ratio in schools.
I'm simply saying of course it's a unique proposition, but there are certain circumstances when the constitutional violation is so bold with this Court in the past has responded with that kind of unique relief.
And not simply think --
Justice Hugo L. Black: But -- things to have, that I recall.
Mr. Norman C. Amaker: Pardon me?
Justice Hugo L. Black: I do not recall doing to this extent its essential vote to the as much to your people as it is to the white people that we preserve ancient landmarks for the Government and not depart completely from the idea if they can elect their officials or appoint them in the manner of the right on law.
Someone suggested to me sometime ago that the way to prevent unfair trials in the south was to take defendants from down there quite differently and take them up in trial in Harlem.
And they did it honestly.
It was a belief that that was the best way to do it.
Of course it's an exaggeration to say that this is the same, but I think you -- from what I read about Greene County, they've made it through members, almost miraculous progress over there in the right to the people to vote and select their own office.
Mr. Norman C. Amaker: They haven't made that progress without a concerted judicial effort.
Justice Hugo L. Black: That's right.
Mr. Norman C. Amaker: Litigation after litigation after litigation.
Justice Hugo L. Black: That's right but I don't --
Mr. Norman C. Amaker: And this case is entirely --
Justice Hugo L. Black: I don't condole that we took away from that state its right to appoint jury commissions.
Mr. Norman C. Amaker: Well, if that --
Justice Hugo L. Black: And as demanded it to be a Governor appoint a man of a certain title, (inaudible) a jury commission.
Mr. Norman C. Amaker: Well, it certainly seems that just as the majority of the citizens in Greene County are entitled to elect the persons that they choose.
The jury commission which forms a very important public function in the community is entitled -- they're entitled also to have some representation of their group from that commissioner.
Justice Hugo L. Black: No one can disagree with you I don't think who lives in the fair and equal government on that basis that they are entitled to.
But the question here, I'm asking you because you and your group as much understood in carrying on the law fairly administered so that you don't break down the great structure of our democratic government by saying it to the courts and require that certain people or members of the race be appointed to office by the appointed power.
Anymore than we could say they must elect them.
Of course we can hold that they must adopt policy.
I'm not arguing against your point that you do have a very righteous cause of complaint in connection with that county.
But I am trying to point out that we have reached it yet a point and made a miraculous, almost miraculous progress, a man who lived at Alabama knows, almost the miraculous progress that has been made in Greene County without destroying any of the ancient landmarks of the Government.
Mr. Norman C. Amaker: My time is up, Mr. Justice Black.
I can only say that that has taken very, very many decades and I don't -- it's not my judgment that that is a miraculous record.
Chief Justice Warren E. Burger: Thank you Mr. Amaker.
Thank you Mr. Hall for your submissions.
The case is submitted.