PALMER v. THOMPSON

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Argument of Paul A. Rosen

Chief Justice Warren E. Burger: Palmer against Thompson.

Mr. Rosen you may proceed whenever you’re ready.

Mr. Paul A. Rosen: If it please the Court, my name is Paul Rosen and I along with Mr. William Kunstler will represent the petitioners in this oral argument.

I intend to discuss the Fourteenth Amendment issues in this case.

Mr. Kunstler will follow and discuss the Thirteenth Amendment issues.

We have raise Section 1981 in our brief and if time permits, we will discuss it although we feel that we have amply covered in our brief.

This case represent but another attempt by the City of Jackson to nullify the Thirteenth and Fourteenth Amendment, to avoid the decision of Brown versus Board of Education, and to deny black people their rights as guaranteed by the Civil War Amendments.

Until 1963, Jackson, Mississippi operated its recreational facilities on a segregated basis.

This is eight years after this Court in the Dawson case proclaimed that recreational facilities should no longer be operated on a segregated basis.

But despite this, the City of Jackson maintained its policy.

And so in 1962 and ’63, black citizens of Jackson, Mississippi went to the federal courts and asked those courts to invoke the Brown decision to desegregate the recreational facilities in Jackson including the five municipal pools.

These five pools, one of which was leased from a YMCA were operated on this basis.

For one-third of the population, the black population of Jackson, Mississippi, they are one pool.

For two-thirds of the population, the white population of Jackson, Mississippi, they had four pools.

And so this was the situation, and this was a situation which faced the court in Clark versus Thompson.

And in Clark versus Thompson, the court ordered that the pools and the other recreational facilities would be desegregated.

They must be integrated.

This was the law of the land.

And what did the City of Jackson, Mississippi do?

Did they attempt to integrate the pools?

Did they make any effort whatsoever in good faith?

No, they did not.

Indeed, the City of Jackson followed what the Fifth Circuit Court of Appeals called in 1963 and it took judicial notice of an official steel hard inflexible policy of official segregation.

They closed the pools rather than integrate.

And so we have a new form of separation in Jackson, Mississippi. Blacks and whites could not swim in the pools before Clark versus Thompson.

Blacks and whites do not swim in the pools after Clark versus Thompson.

Now what the city did was in keeping of the statutory scheme of the State of Mississippi, for the state requires city officials to do everything in their power, to avoid the mandate of Brown, and to prevent mixing in recreational facilities including pools.

Now, the court below found the respondents admit that the purpose for closing the pools, the motive for closing the pools was the integration order.

That fact is not in dispute in this case solely because they were told that black and white bodies must touch.

That was the catalyst; that was the action which closed these pools.

Now, the city claims that the problem is that when you integrate pools, there might have been violence and there might have been economic loss, sheer speculation, for they never operated the pools on an integrated basis.

For other recreational facilities that had been integrated, have been integrated in a peaceful way, but pure simple speculation, and so the situation is that four pools are now closed.

The one pool that was leased from the YMCA was returned to the YMCA.

And now, it’s being operated on a white only basis.

Justice Byron R. White: Do you know what the status Mr. Rosen of the pools is?

Are they merely closed or have they been defacilitized so to speak, what is their status?

Mr. Paul A. Rosen: Our understanding Your Honor is that they are closed.

We have pictures if the Court is interested, which were taken some two or three weeks ago which indicate of course that the water is out, that there is a minimum of maintenance necessary to get the pools back in operation.

Of course, in the affidavits in this case, the city maintained that they were maintained these pools eventhough they were in a closed status.

Justice Potter Stewart: There’s a statement on page 11 of the respondent’s brief that rather intrigued me.

It’s just a single sentence and it’s nowhere elaborated that I could see in either brief.

Statement is this “There are integrated pools now available in Jackson.”

What was that?

Mr. Paul A. Rosen: Yes, Mr. Justice.

I noted that statement and I attempted to check to see if that statement was correct.

I have no facts which would suggest that it is correct.

I might only suggest to the Court that it seems rather odd that the city here who proclaims that there will be violence, and that there will economic loss if they, the city, integrate pools suggest that a private individual has been willing to take on this burden, and has opened an integrated pool without violence and without economic loss.

But as I say, I had no evidence --

Justice Potter Stewart: But do you not -- you don’t actually do what the reference says here or do you?

Mr. Paul A. Rosen: No, I checked on that and I do not know.

And it is not supported in the record I might add.

Justice John M. Harlan: Well, is there any non segregated pool now, city operated none segregated pool in Jackson?

Mr. Paul A. Rosen: No there is not.

What the city has done is to continue its policy of segregation.

It is taken this dramatic opportunity to tell the white citizens of Jackson, Mississippi that should they attempt to have close contact in pools and elsewhere that there will be violence, and there will be loss.

Justice Hugo L. Black: Did I understand you to say that the city is continuing its policy of segregation?

Mr. Paul A. Rosen: It is continuing --

Justice Hugo L. Black: I thought I heard you say that it had no pools at all?

Mr. Paul A. Rosen: It has continued its policy of segregation with respect to the pools, yes Mr. Justice.

Justice Hugo L. Black: Well, does it have any pools?

Mr. Paul A. Rosen: Yes.

The pools are there.

The pools are being paid for by our respondent’s tax monies.

They sit there as a monument to what has occurred in this case.

It is no different it seems to me than what existed before Clark versus Thompson.

Black people and white people do not mix in the pools of Jackson, Mississippi.

Justice Potter Stewart: Well, they don’t mix in the squash courts either, if there are no squash courts?

Mr. Paul A. Rosen: But Your Honor, there are pools.

This seems to me no different than the argument in Plessy.

It’s like saying that the coaches in Plessy for white people and the coaches in Plessy for black people that whites could not go in the coaches for blacks, and blacks could not go in the coaches for whites.

Problem is with this case and with the way this has been handled is that it totally avoids what Brown has said is the law of this land, the closure for the pool, the admitted motivation for closing the pool.

Chief Justice Warren E. Burger: Mr. Rosen, may I ask a question from another direction?

Assume a city which had no swimming pools at all, no recreational facilities, baseball grounds for any of its citizens.

Would mandamus or some other comparable proceeding apply to compel them to open such facilities?

Mr. Paul A. Rosen: Well --

Chief Justice Warren E. Burger: To create them?

Mr. Paul A. Rosen: To create them?

Chief Justice Warren E. Burger: On a totally non-segregated basis.

Mr. Paul A. Rosen: I don’t believe Your Honor that that would be required.

It might be required in all candid to this Court if the city would have had hearings and have indicated that they had the money, they had everything they needed to open pools, but they did not want blacks to swim with whites and that’s why did not open pools.

Of course, that’s not at issue here.

But what I say in this case is it seems to me that when this Court said in Brown that the action of separating people created feelings of inferiority as to the status of black people in the community that this action is no different.

Black people know why the pools are closed.

It’s not to prevent white people from swimming with black people.

Surely, not the respondents would stand here and say that.

It’s to prevent black people from swimming with white people.

It’s the same thinking and the same thought that permitted in Plessy; black and white to be separated and coaches.

And it creates the same feelings of inferiority.

Justice John M. Harlan: You’ve said that the -- as I understood it, the closed pool was formally operated by the city is still being maintained?

Mr. Paul A. Rosen: Yes, Your Honor that --

Justice John M. Harlan: What do you mean by that?

Mr. Paul A. Rosen: Well, in the affidavits, the city indicates that the pools are still being maintained.

That is, I assume that they’re being taken care of for change of weather; that items are not permitted to rust.

This is all in their affidavit.

The only thing that we could do because obviously, we could not go in to the pools was to take pictures from the outside and it appears --

Justice Byron R. White: Does that mean that something like mothballing a ship?

Mr. Paul A. Rosen: I’m sorry?

Justice Byron R. White: Is that something like mothballing a ship?

Is that’s what they do?

Mr. Paul A. Rosen: I don’t know what they mean.

Just looking at it, it looks like it, will take very little work and the pools could be back in operation.

And we’d be happy if the Court desires to show you the pictures that we have taken just two or three weeks ago.

Chief Justice Warren E. Burger: And I suppose your argument would go to any public facility and not necessarily a pool.

A zoo, park, any kind of a public facility previously maintained on any kind of basis and then closed for the purposes and with the impact that you’ve described is prohibited?

Mr. Paul A. Rosen: That is correct Your Honor.

I think this Court said in Griffin that whatever non-racial reasons would permit their schools to be closed.

The object must be constitutional and race and opposition to immigration do not qualify.

It seems to me that that statement, that rule of law applies to this case.

There is no difference.

Justice Hugo L. Black: Suppose they closed up all the pools that they had?

Mr. Paul A. Rosen: Just close them?

Justice Hugo L. Black: Suppose that the City of Jackson had decided to abandon any pools?

Would your argument be the same -- all pools?

Mr. Paul A. Rosen: Well, they --

Justice Hugo L. Black: Will your argument be the same?

Mr. Paul A. Rosen: They have closed all pools Your Honor.

If the question --

Justice Hugo L. Black: I thought you said they hadn’t?

I understood you’d say they hadn’t?

Mr. Paul A. Rosen: No, no.

All pools have been closed with the exception of one pool which was transferred to the Y.

Justice Potter Stewart: Well now, it wasn’t transferred to the Y was it?

It was owned by a private owner and it was leased by the city, and then the city terminated the lease?

Mr. Paul A. Rosen: Terminated --

Justice Potter Stewart: Wasn’t a city property that was transferred to private hands, that’s the opposite if anything.

It was certainly not that one either.

Mr. Paul A. Rosen: That is --

Justice Potter Stewart: Private property which the city was last seen and then the city terminated the lease, wasn’t that it?

Mr. Paul A. Rosen: That is correct.

Justice Potter Stewart: And all the city owned and operated pools were closed and that’s what this case is about isn’t it?

Mr. Paul A. Rosen: That’s right.

The city maintains and the court below found that the -- while the motivation for closing the pools was the integration order that safety and economy would be affected if the pools were integrated.

Now, there was no testimony as to any violence.

There was no testimony as to economic loss.

But it seems to me that all they are saying is that the manifestations of hatred and prejudice created by integration made it in their minds a problem to integrate the pools, to do what the constitution requires.

Now, this Court since Brown, Watson, innumerable cases had said that opposition to integration does not afford a sufficient excuse to justify the denial of constitutional rights.

Justice Hugo L. Black: Have any of the cases held -- I’m not familiar.

Have any of the cases we’ve had held anything from which it could be inferred that a state could not close up facilities that it did not want to operate whatever the motive?

Mr. Paul A. Rosen: I would say -- whatever the --

Justice Hugo L. Black: Whatever the motive.

If it has power not to operate certain kind of facilities, have any of our cases held that the courts can compel it to open them up?

Mr. Paul A. Rosen: Yes, Griffin Your Honor.

Justice Hugo L. Black: What did it uphold?

Mr. Paul A. Rosen: Griffin.

Griffin held that where a state permits a county to close a school, it may do so under certain circumstances.

Justice Hugo L. Black: But they didn’t close all the schools, did they?

Mr. Paul A. Rosen: No, they did not close all the schools, but they dealt with the children in the county in the same way.

And this Court said that it’s not a question of counties, it’s a question of people.

Justice Hugo L. Black: But it is a question of power, isn’t it?

As to whether a state operates certain facilities.

Mr. Paul A. Rosen: Question of power Your Honor; it seems to me is the state does not have power to violate the constitution.

Justice Hugo L. Black: Of course not.

Everybody knows that.

Mr. Paul A. Rosen: And that’s what's at issue here.

Justice Hugo L. Black: I wasn’t asking you, that I was asking you if there’re any cases of this Court that have held, the state has a right to supply or not supply certain facilities, it can be prohibited by the courts from closing those facilities.

Mr. Paul A. Rosen: Well, I would respectfully suggest that I believe that that’s the holding in Griffin.

Now, the excuses of the city have been dealt with before by this Court in Watson.

They’ve been dealt with before in Brown too.

They were dealt in Green.

They were dealt with in Cooper versus Aaron.

Each on of these excuses are all pinned to the same fact that integration, so they speculate, will cause violence and will cause some economic loss.

Although, this has not occurred in other recreational facilities that have been integrated and although the City of Jackson never attempted once in good faith to follow the mandate of the court, to attempt to integrate its pools.

Now, the city argues as a majority below argues that the distinction in this case really between this and Griffin is that schools are essential and pools are not essential.

It seems to me that that argument is the same argument that was made in Plessy between legal rights and political rights and social rights.

It’s the same kind of giving black people, a little this and a little that, doling out rights, any right that the white power structure determines is important for black people; they will give them, and what they determine is not important; they will not.

The essentialities argument is one which if this Court were to agree with, will create probably the most horrendous problems and difficulties for black people.

Let me just indicate two areas where this is truthful.

When black and a white child go to school together and as they come home from school, they go by a pool that’s been closed because the federal court ordered and integrated.

Does the black child have any doubt as to what his status in the community is?

Does a black child have any doubt that he is inferior?

And on the other hand, does the white child have any doubt that he is superior?

The essentialities argument also creates another problem.

In schools, what classes are essential and what classes are not essential?

What classes can be maintained in an integrated basis because they’re essential and what classes can not be maintained in an integrated basis because they are not essential.

I think in viewing this case --

Justice John M. Harlan: Let me ask you this question.

Supposing one has to agree with you in your basic argument.

One of the factors as I understood it which was accepted by the yard to the Court of Appeals in the opinion written by Judge Rimes was in the city could not economically operate these pools on a desegregated basis, is that right?

Mr. Paul A. Rosen: That is correct.

Justice John M. Harlan: Alright, now assumingly agree with you, has this Court got power to order the local fiscal authority to appropriate state money, to implement a decision which on the assumptions of my question would be that it cannot close down this school for the reasons that you’ve given?

Mr. Paul A. Rosen: I believe Your Honor in the Griffin case that the Court empowered the District Court to order if necessary.

The collection of taxes for the operation of public schools, and so my answer would be yes, this Court does have power to order the City of Jackson to operate it’s pools in keeping with its order in Griffin.

Chief Justice Warren E. Burger: Do you see any other distinctions between Griffin, the basis for the Griffin holding on the situation here?

Mr. Paul A. Rosen: No Your Honor, I do not.

I recognize the language in Griffin talking about different counties.

But it really all gets back to Brown.

It gets back to what is the letter of the law, the feelings of inferiority.

And I don’t think anyone could suggest that for black people in Jackson, Mississippi after they go to court to integrate their pools and the city closes them because they were ordered integrated that they have no doubt and it does not create feelings of inferiority as to their status in the community.

It is Brown which rules this case.

It is Brown I think that answers all questions in this case.

This Court in Brown said that the wall was that black and white have a right to live together and that blacks have a right to integrate public facilities.

Let’s look at the situation and let’s look what the Fifth Circuit Court of Appeals has done.

Black people before Brown went to the court and the court ordered that the pools would be integrated.

At that point, they had one pool.

Under Plessy, they had one pool.

Now, because of Brown, if the Fifth Circuit Court of Appeals decision stands, they had no pools.

They were better off with Plessy than they are with Brown and it seems to me that this Court could never have intended that result.

Chief Justice Warren E. Burger: Thank you Mr. Rosen.

Mr. Kunstler?

Argument of William M. Kunstler

Mr. William M. Kunstler: Thank you Mr. Chief Justice, may it please the Court.

I’m going to carry on from my brother Rosen to the Thirteenth Amendment.

I recognized that you could decide this case on the Fourteenth Amendment without much problem.

But I want to make a strong an argument as I can to go further than that and I’d like to pose my argument this way.

I start from the premise that the Thirteenth Amendment abolished slavery and established universal freedom from Mr. Justice Bradley’s comment in the Civil Rights cases.

And then go to Mr. Justice Stewart in Jones against Mayer were based on the Thirteenth Amendment and writing for this Court, he indicated that Congress was authorized by that amendment to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.

And I remember, Mr. Justice Stewart, you emphasized in the opinion, at least in my report those words.

Or again as Mr. Justice Stewart put it in footnote 78 of the Jones opinion that the amendment authorized Congress to eradicate the last vestiges and incidents of a society half slave and half free.

But Mr. Justice Stewart left open the question.

He asked really, did the amendment itself do any more than that?

And I want to pitch my argument to the fact that it did, in my opinion, do more than that.

Our position is a fundamental one.

It is essentially that the amendment puts an affirmative duty on all branches of Government including this Court to eliminate all badges and incidents of slavery.

It is self-executing if all of the justices in the Civil Rights case have any meaning.

They agreed on one thing that it was a self-executing amendment.

And I think Mr. Justice Bradley used the words by its terms was applicable to any existing set of circumstances.

We come here with one of those existing set of circumstances.

If the amendment did abolish slavery truly and it did establish universal freedom, then our position is that it gives this Court the power independent of any act of Congress, the power to abolish any incident of slavery.

In other words, it authorized all branches of Government.

The executive, legislative and judicial to do everything and I’ll quote again from the Civil Rights cases, “everything necessary and proper for abolishing all badges and incidents of slavery in the United States.”

And I guess the question Your Honors comes down to this.

What is the badge in incident of slavery?

Justice John M. Harlan: Suppose your argument is that the school cases could’ve gone under the Thirteenth Amendment rather than Fourteenth?

Mr. William M. Kunstler: Absolutely.

There could be no more badge of slavery.

In fact, that’s so typical a badge of slavery.

The black people couldn’t be educated at all was one of the elements of the slave state.

In fact, it was a crime, Mr. Justice Harlan as you know in many states, to educate black people and one punishable by death.

Question is what is a badge or incident of slavery and I go to Mr. Justice Douglas because in Jones, he lists the whole number of things which he indicates are badges of slavery.

Talks about voting restrictions, exclusions from jury, segregated courtrooms, segregated schools, denial of educational benefits in higher institutions of learning, marriage, marrying outside of one’s race, living in segregated ghettos, riding in segregated railroads or enjoying life in segregated public parks, restaurants, public beaches, municipal golf courses, amusement parks, buses, public libraries, etcetera, and being referred to by one’s first name as Mary Hamilton was in an Alabama Court, even if she happens to be an adult woman.

I would like to utilize what Mr. Justice Douglas included in his concurring opinion in Jones, what Frederick Douglas said, because he said and I think, and I have to speak from a black man’s viewpoint “Yeah, that’s impossible being a white man.

All I can say is what he said.

And he said the black man has seized to be the slave of an individual but has in some sense become the slave of society.”

And that’s where we are here.

He is the slave of society.

He has an incident of slavery.

He cannot swim in the pools next to white people because of all the sexual and metaphysical connotations of water and contact of bodies, what Mr. Justice Douglas observed about motels which have swimming pools.

I think the general definition that we would like to urge upon this Court is that an incident of slavery is anything that makes a black man reasonably feel inferior to a white man.

It’s the opposite of what Mr. Justice Brown said in Plessy.

He said if the black race chooses to put that interpretation upon writing in segregated coaches, that’s their lookout, not ours.

But I submit that it is your lookout, our lookout because this Court is really nothing more than an extension of the American personality, an extension of the American sociology.

I would put it in other way as a badge or incident of slavery anything that would downgrade the concept of national citizenship as envisioned in the war timed amendments would be a badge of slavery.

It’s as Mr. Justice Douglas said “Things that have remained in the minds and hearts of many white men.”

And I think he’s charitable by adding the adjective “many” in front of the words white men.

Now what makes a black man feel inferior to a white man?

It’s any act which he can reasonably construe at something which stamps him with a badge of inferiority.

And some of these things I’ve indicated from Mr. Justice Douglas’s dissent --concurring opinion in Jones, but they all have a common thread.

They emphasize unequal status.

They remind black people that they once were chattels to be bought and sold like cows and sheep in the United States.

Now, does the closing of the pools, the swimming and wetting pools do that?

We say it does.

And I set forth in my argument a number of reasons why it does.

One, to ask a few questions: What construction will a black person put on the closing of the pools?

It’s a different construction than a white person.

A white person will be inconvenienced.

He won’t swim also, that’s true.

But to him, it doesn’t mean that he was once a slave.

It only means that because there is an inferior race that some judicial system has said “may swim with him” that that inferior race is not going to swim with him.

But for the black man, it has a wholly different meaning.

It means he’s not good or clean enough to swim with white people.

In Judge Wisdom’s dissent, I think he perceptively saw that down in New Orleans with the flood of cases that come through with the Fifth Circuit.

He said “We should recognize the actual traumatic effect of the action on Negroes for what it was.”

And I think unless this Court recognized what these things do to black people, then I guess we’re in for a very hard time in the United States.

No black person could fail to get the message about the closing of the pools meant.

Mayor Thompson put it very coldly “We are not going to have any intermingling in the pools.”

And as Justice Douglas said in his concurrence in Jones, “A vacancy sign at a motel doesn’t mean what it says especially if the motel has a swimming pool.”

Mr. Justice Douglas as a white man must understand what it means to mingle in the pools.

Why there is such unholy opposition to that contact.

The second question is who did it?

And the white community did it.

Just as the white community segregated the railroad that ran around a bunch of train in Plessy against Ferguson, so the white community in Jackson closed the pools.

Why did they do it?

Next inquiry; to avoid integration.

Why avoid integration?

Because black people are beings of an inferior order and altogether, unfit to associate with the white race either in social or political relations.

That’s just Mr. Chief Justice Charley, he saw it quite clearly.

Or he said in another way “This is by way we erect a perpetual an impossible barrier between the races.”

Or another way “we must separate the unhappy black race from the white by indelible marks, ” or finally, “we impress deep and enduring marks of inferiority and degradation on black people.”

And that is the heart of this case.

That is why I think the Court must take a stand and say “Yes, the closing of the pools violates the Thirteenth Amendment.

That we as a Court have just as much responsibility as Congress, just as much responsibility as the executive in wiping out these badges, because unless they are wiped out, no black person can feel secure in the United States and every black person will begin eventually to build up a rage that is already sufficient enough that will build up a rage inside that he knows that in white eyes, he is an inferior person.”

Chief Justice Warren E. Burger: Mr. Kunstler, you referred to a co-equal duty of Congress and the courts.

Would Congress have any power to reach into a municipal situation of this kind absent grants on which they could place conditions?

Mr. William M. Kunstler: Mr. Chief Justice, I think they would.

But I think there are some areas that are very difficult to legislate on.

Legislation is peculiarly proper for general situations.

But to pick out every badge of slavery and isolate it by legislation is I think impossible.

That’s where I think this Court comes into the picture.

There are these areas.

Like the swimming pools in Jackson where I think the Court may have peculiar responsibility, where the Court is maybe the only barrier.

Chief Justice Warren E. Burger: Isn’t it true though that Civil Rights Act adopted by the various acts adopted by Congress have indeed reached into many of these areas not only with respect to Negroes, but minority groups and women aren’t certainly into minority?

Mr. William M. Kunstler: That’s true Mr. Chief Justice but not the closing of a swimming pool.

You’re talking about areas whether they’re available and open.

A swimming pool would be a public accommodation under the Civil Rights Act of ’64.

Chief Justice Warren E. Burger: Well could this city, any city, North, South, East or West set up a system of swimming pools and provide that men and women should be in separate pools?

Mr. William M. Kunstler: That’s a one -- that’s a little harder for me to answer.

I would say no.

I take the fact that that would be if it were in a way of emphasizing inferiority of women, I would argue on that score.

Chief Justice Warren E. Burger: Well, it would not be -- I’m not assuming that anyone would declare that and if they thought it, they certainly wouldn’t declare.

Just assume the factual situation of the city maintains separate swimming pools for men and women and forbids any intermixture.

Mr. William M. Kunstler: I would see a little different situation there.

Despite what women’s liberation movement feels, women were not true slaves in this country.

They have a lot of the incidents, I think, but they weren't true slaves as black people were.

There’s a whole different set of facts, if you do it to keep black people from swimming with white people because black people are inferior, that’s a little different between separating the sexes as they do for example, Mr. Chief Justice, where people swim nude.

They do separate the sexes in one pool or another, or have different hours.

That’s a logical distinction to me.

That’s reasonable.

That’s not the inferiority of anybody.

That’s a morality question.

But if you did it where people wore bathing suits, unless it were in the area of the inferiority of women being proclaimed in some way, then I think it’s a different picture than we have here.

Everything here comes out of the historical mammoth fact that black people were slaves.

And if you do this, if you close these pools this way, which is not covered by the Civil Rights Act because there are no pools to be integrated.

This is an unusual situation.

This is closing the facility for everybody because you don’t want one element of the population to swim with another.

And I think that’s a peculiar area for this Court.

I think it’s an important area for this Court.

I thought Mr. Justice Stewart was pointing the way by his unanswered question.

I’m trying to get the Court to answer of the question that Mr. Justice Stewart posed in Jones.

And I think it’s a question that has to be answered.

I realized that the tendency of the Court is to go into a much explored area, which would be the Fourteenth Amendment certainly.

But I’m indicating that there are responsibilities of the Court as well.

And I think this is an area where the case that Mr. Justice Stewart might have been imagining, has now arrived at the Court.

You have two or three roads which you could take.

I’m asking you essentially to take the road of the broad sweep of judicial power and to declare that the Court independently of Congress moving and it may never move in this area.

Indeed, as Mr. Chief Justice Burger’s question has indicated, it maybe an area where you can’t legislate.

Maybe, a unique area and there are many unique areas of this so they can’t be imagined.

I would like to indicate just briefly in closing that I thought that the first, Mr. Justice Harlan saw clearly what courts should do in situations like this.

He made both a poetic and I think an accurate observation in the Civil Rights dissent.

He said “It is not the words of the law, but the internal sense of it that makes the law.

The letter of the law is the body.

The sense and reason of the law is the soul.

And I am appealing to the soul of the law both for practically, humanitarian and ethical and philosophical considerations.”

He went on to add that there cannot be in this republic any class of human beings in practical subjection to another class with power in the latter to dole out to the format just such privileges as they may choose to grant.

The class that has one in subjection has now withdrawn a facility which was open to all.

One pool segregated for blacks, four for whites.

They add, as Mr. Justice Stewart indicated, it gotten rid of one and we can leave that out of consideration (Inaudible).

But they have taken the other four and closed them, maintained them and they are determined that black and white body shall not mingle in them.

That is putting black people in practical subjection to another class.

And that is what under our law.

This Court, I feel very personally and emotionally that this Court must say answers the question that your brother posed in Jones.

What is the full extent of the Thirteenth Amendment, that amendment that started in such fire and flamboyance and with such high hopes and is now taken almost a hundred years just to resuscitate as you did in Jones one portion of it, the right to buy a home in Patrick Woods.

It goes much further than that.

It must make black people feel that they have the same status as white people and truly feel that in the deepest heart, unless they do, I am certain that the rage will consume the body.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Kunstler.

Mr. Goodman?

Argument of William F. Goodman Jr.

Mr. William F. Goodman Jr.: Mr. Chief Justice and may it please the Court.

On the belief that the Court please, that we still hear law suits on the record.

I would like to take just a moment at the outset if I might, and talk about Clark versus Thompson, the case back in 1962 that preceded all of this discussion because I’m not certain from the references in the briefs to Clark versus Thompson that all of the members of the Court may understand precisely what happened in Clark versus Thompson.

Wherein 1962, the District Court in Jackson, Mississippi declared that certain individual plaintiffs were entitled to the unsegregated use of all public, recreational facilities that is including zoos, parks, auditoriums, libraries, golf courses, all public recreational facilities.

Now that was a declaratory judgment proceeding.

No injunction was issued.

Now what happened?

From the way that case is cited in the briefs, I’m afraid you withdraw the conclusion that the city appealed.

The city accepted Clark.

The plaintiff’s appeal seeking the sweeping injunction that had not been granted by the District Court and no injunction was granted by the Fifth Circuit.

Then the plaintiffs sought certiorari here and again were unsuccessful.

My point simply being at the outset that from the moment the Clark decision was made by district Judge Meyers, the City of Jackson accepted it.

And from that day to this, every public facility in the City of Jackson, Mississippi where the recreational or otherwise which is open is fully segregated, and I think that’s --

Justice Potter Stewart: Well, I think you mean maybe --

Mr. William F. Goodman Jr.: -- fully integrated, excuse me Your Honor.

Appreciate that sir.

And while we are getting our word straight, if the Court please, and I am a little nervous, in fact I’m scared.

I would like to mention to the Court a few of the things that I think we can agree on between counsel, so that perhaps when some of my nervousness subsides, I can get down to the key things that we do not agree on.

And we can agree on this, the decision in Clark versus Thompson was correct.

It has never been questioned by the City of Jackson.

And we can agree on this, and I’m sure you’re going to ask me so I’ll go ahead and say it at the outset.

The administrative decision by the City of Jackson, Mississippi to close the swimming pools came after the Clarke case.

It came after the declaratory judgment had been issued.

It came as a result of it, and I would not stand here as an officer of this Court a brand new one at that and tell you otherwise.

It came after the Clark case and as a result of it.

But if the Court please, here’s where we get to the difference, and here’s where we get to the heart of this lawsuit.

The decision to close the swimming pools in Jackson, Mississippi was not out of spite or hatred, or any of the other insidious motives asserted in the briefs filed in this Court by the petitioners.

While the decision to close the swimming pools came after the Clark case, it was not from a desire to crush black people or to reinstate badges of slavery for goodness sakes or to discriminate against black people.

Here’s what the record shows.

The record shows if the Court please that the Clark decision brought new problems.

Now here’s the city Council in the City of Jackson, Mississippi in 1963 right or wrong, and I contend in all difference, it makes no difference.

Right or wrong, the city council of the City of Jackson honestly felt that the personal safety of some of its citizens and the maintenance of law and order could be in danger if swimming pools were integrated in that city at that time, right or wrong.

Right or wrong --

Justice Potter Stewart: What was that time, 1965?

Mr. William F. Goodman Jr.: No sir, ’63.

Justice Potter Stewart: 63?

Mr. William F. Goodman Jr.: 63.

Right or wrong, the City of Jackson felt it could not justify that economic loss which would result from the operation of pools on an integrated basis.

Justice Potter Stewart: The city had charged admission when these pools were operating.

They were not free were they?

They were --

Mr. William F. Goodman Jr.: It was a minor admission, but they did charge admission.

And I frankly say to Your Honor that they lost money then, operating on a segregated basis. But they felt that when they --

Justice Potter Stewart: Well, of course in those terms, I suppose, all public parks lose money?

Mr. William F. Goodman Jr.: Exactly sir, exactly.

Justice Hugo L. Black: How many did you have?

Mr. William F. Goodman Jr.: I’d like to talk about that and I was going to get to it because you’ve asked some questions about it, and I want there to be no misunderstanding.

Now here’s what we had in Jackson in 1962.

We had one lake now it’s called the pool.

But one large lake, Livingston Lake, which had been in existence for many years, it is still there.

Justice Hugo L. Black: Was it from a natural stream?

Mr. William F. Goodman Jr.: No sir, it was a lake in which people – it had been used for swimming for a long time, but it --

Justice Hugo L. Black: There was no stream there?

Mr. William F. Goodman Jr.: No sir.

And it would be -- this is out of the record, but it would be almost impossible to convert it now into a swimming facility unless you just start it over because it’s been there sitting in its present condition for so long, but anyway one lake.

Then there was one pool and what had been a black neighborhood in Jackson.

And incidentally, that is the one pool which has never seized to operate and is operating today for the benefit of the black community and here is why.

That one pool was sold by the City of Jackson to the YMCA, and I’m not talking about the leased one now, this is a different one.

This is what was formally in the black neighborhood.

It was sold by the city to the Y.

The YMCA opened it up and the black people boycotted it.

So, it wouldn’t be in use.

Then the YMCA sold it to Jackson State College.

Jackson State now owns it and operates it.

So that’s what happened to the pool that was in the black neighborhood.

Justice Potter Stewart: And Jackson State is a predominantly Negro institution?

Mr. William F. Goodman Jr.: Predominantly.

Justice Byron R. White: Is it a state institution?

Mr. William F. Goodman Jr.: Yes sir.

No, no I don’t believe it is.

I believe it’s a private institution.

But I’m really not certain.

I’m sure these gentlemen --

Unknown Speaker: And it just stated?

Justice Potter Stewart: And predominantly Negro --

Mr. William F. Goodman Jr.: Yes sir.

Justice Potter Stewart: -- that operates this pool.

It is open to the general public?

Mr. William F. Goodman Jr.: I think its open --.

Justice Potter Stewart: Or only to students of Jackson State?

Mr. William F. Goodman Jr.: I think it’s used for the students of Jackson State and their guests.

I’m not sure what the rules are, but it is used there by that institution.

Justice Potter Stewart: Is there any exclusion of white swimmers there?

Mr. William F. Goodman Jr.: Not to my knowledge, no sir.

Then, Your Honor that leaves the pool that went back to the Y, the leased pool.

That leaves two swimming pools that were formally in white neighborhoods in the City of Jackson, one in Battlefield Park and one in Riverside Park.

Those are the two swimming pool facilities that stand there today closed.

And while I meant to get to this in a moment, I don’t want to forget it.

One of you asked a question a moment ago about the power of the courts, even if it could find the power here to do what the petitioner’s request, the power of the courts to compel the erection and construction of facilities where none existed before.

And if the Court please, that’s exactly what would happen if the City of Jackson were told to open these two remaining pools.

And why they remained in what has traditionally been and remains white neighborhoods in the City of Jackson.

And don’t you know, we’d all be back here in a few months time with a suit to require the City of Jackson to build additional facilities in other neighborhoods and perhaps to build them in every neighborhood, and perhaps to be certain that people intermingled in them and on and on.

Justice Thurgood Marshall: Mr. Goodman, in this year of 1970, the YMCA in Jackson is holding segregated?

Mr. William F. Goodman Jr.: I don’t think so.

Justice Thurgood Marshall: Well, I thought you said the pool was?

Mr. William F. Goodman Jr.: I said that or what I meant to say sir was that when that pool was sold to the Y, of course it was in a predominantly black neighborhood.

And when the YMCA attempted to operate the pool --

Justice Thurgood Marshall: I’m talking to the leased one that was given back.

Mr. William F. Goodman Jr.: Well excuse me sir, the leased one is given --

Justice Thurgood Marshall: Is that one all white?

Mr. William F. Goodman Jr.: It’s my understanding that it is.

Justice Thurgood Marshall: And the YMCA excludes Negroes?

Mr. William F. Goodman Jr.: It’s my understanding that the YMCA does not, but out of practice and custom, that particular YMCA pool is all white.

Now that’s I have no personal knowledge of that sir, but I want to give you a frank answer and I think those were the facts.

Let me quickly, if the Court please, try to get down to the heart of the case.

Now counsel respectfully, they are searching to make this a constitutional case.

And they throw out endless arguments in the hope that one of them will catch fire in the heart of this Court.

They say if the Court please and they say this without authority, and they say it all the way through their briefs that the City of Jackson, Mississippi has the burden of proving that the closing of the pools was not for a discriminatory purpose.

You see, being the plaintiffs below and having made no such proof, they get in the appellate courts and switch and say “Well the burden was on the city to prove that it did not have an improper motive when it closed the pools.”

And they cite time and again and referred to at the moment they reach the floor this morning, a statement from another Fifth Circuit case in 1963 I believe, to the effect that Jackson, Mississippi has maintained a steel hard, inflexible, undeviating official policy of segregation.

Now here’s what they’re really saying.

What they’re really saying is that whenever Jackson, Mississippi is involved in a lawsuit, no matter what the proof is, this Court must assume that there was a discriminatory purpose.

That’s what they’re saying.

You see, the argument appeals to the past.

The argument appeals to the popular criticism of the south in years going by.

I submit to the Court that the argument is an attempt to pin the badge of slavery that counsel discusses upon Jackson and cities of the deep south to ask you today and I guess forever, to judicially assume no matter what the proof is that the motive of Jackson, Mississippi was to discriminate.

Now, I have no purpose before this Honorable Court to attempt to justify any of the constitutional privileges that were denied blacks in the past, both in Jackson, Mississippi and elsewhere throughout this country.

But I say to the Court that Jackson, Mississippi accepted the Clark decision.

Jackson’s public facilities are integrated totally.

I think you’re well aware that Jackson, Mississippi has the most integrated school system in the United States.

Jackson should not now or forever, unlike other litigants, have to prove itself not guilty, have to prove that it was not acting out of discrimination.

Now, while arguing that we are trying to pin a badge of slavery on somebody, counsel is really saying “Keep Jackson, Mississippi in line.”

Assume it to be wrong even though we have made no proof whatever to that effect in this case.

In addition to trying to shift the burden to the city, the petitioners are persistently saying that the closing of the swimming pool reflects upon that black people.

Now, if the Court please, there’s no testimony to this affect.

But counsel stands up and says “Well, here’s a way a black person would feel, and this is the appeal to your heart.”

Then let’s look at the facts from the record.

The city officials, right or wrong, feared friction between the races.

Swimming pools, presents hazards; drowning, injury, hazards unknown to most recreational facilities --.

Justice John M. Harlan: Assuming that’s all you have the economic thing, would that be a constitutional defense?

Mr. William F. Goodman Jr.: If the Court please, in --

Justice John M. Harlan: What do you do if you -- against war all the way back?

Mr. William F. Goodman Jr.: I think that when you are dealing with a recreational facility, a facility which the state or the city is not required to furnish that frankly, the city had the power no matter what it’s motive was.

But in this instance, the record reflects genuinely what its motive was.

The point that I’m trying to make Your Honor is that the decision was no more a reflection upon black people, than it was a reflection upon a certain class of white people in Jackson, Mississippi.

It was not a reflection on black people; it was unfortunately a reflection on the few rednecks, so to speak, and among the white population of the City of Jackson.

To feel friction between the races is not the same thing as discrimination.

And I’d like to give you one quick illustration if I might?

Since the so called freedom writer incident in Jackson, in the early 1960’s, to my knowledge, our city has had no violence other than the unfortunate Jackson State incident with which you are familiar.

Recently, following the Jackson State incident, Lynch Street, a public street in the City of Jackson which goes through the heart of that institution was closed by order of the city council.

It was closed.

It was closed to black people and white people just as the swimming pools were closed.

Now if the Court please, it was closed because of fear between -- of friction between the races, and it was closed incidentally at the request of the black community.

Now, I mentioned this simply to point out that no one finds any discrimination from the perfectly proper and legal act of the City of Jackson in closing a public street which formally existed.

No one finds that this is an attempt to degrade anybody.

It was a perfectly proper act arising out of fear of friction between the races, but not tantamount to discrimination and the same thing is true here.

The Fifth Circuit put its finger on the answer in its opinion in this case when it said the Equal Protection Clause does not promise economic equality.

If a badge of equality has been taken from anyone by the closing of few swimming pools in Jackson, Mississippi, it’s been taken from the poor people, the poor white people and the poor black people.

Chief Justice Warren E. Burger: You would agree that that amendment promises equality of opportunity though doesn’t it?

Mr. William F. Goodman Jr.: Yes sir.

Yes sir.

It certainly does, but there is simply no way for a city or a state for that matter to provide recreational opportunity of all sorts for all of its citizens, white or black.

And when we step in to the recreational area, if the Court please, this could be endless because I could have my feelings hurt if a certain facility is not provided.

It’s provided in some other city and on and on.

I think what the Fifth Circuit was trying to say and what I’m trying to say is that this decision to close the pools back in 1963 has unfortunately kept a few black people and a few white people from swimming, but this is penalized the poor people and not the more affluent.

And that’s not a Fourteenth Amendment question, nor Thirteenth Amendment question, and I think it’s interesting that the United States chose to file an amicus curiae brief in this Court, excellent brief, and did not mention the Thirteenth Amendment question which had been argued here this morning, did not mention it.

And I think it was ignored by the United States because this is obviously not a Thirteenth Amendment question.

Finally, if the Court please, I would like to briefly touch on what could happen if this landmark decision went the way petitioner’s would like for it to go, and that’s what it would be.

That’s what they’re asking you to do.

They’re asking you take up sonnets from Jones and a phrase from the Thirteenth Amendment and a sonnets back from another decision here and branch out as he said in a sweeping judicial file, a landmark decision into nonessential, nongovernmental, purely recreational functions of a municipality in this country.

I submit in all difference that if the federal courts in this country get into the swimming pool business, I don’t think it can stop with Jackson, Mississippi, because as I said a minute ago, these folks are not going to be satisfied with an order to reopen to probably now deteriorated pools in predominantly white neighborhoods.

They’re going to want other pools built.

They’re going to want to maintain.

They’re going to want tax monies levied if necessary.

They going to want them supervised.

They going to want people there.

They’re going to say that “They’re not enough in the black neighborhoods”, and on and on.

And finally, if by freedom of choice, people go to pools so that the result is still as he says segregated instead of integrated, then further litigation will come from there.

Justice Byron R. White: Mr. Goodman, what was the year this pool was closed?

Mr. William F. Goodman Jr.: 1963 sir.

Justice Byron R. White: And why is it taking so long for this case to --

Mr. William F. Goodman Jr.: I mentioned at the beginning the history of Clark and the fact that Jackson accepted it immediately.

I don’t know sir, except to say that as I understand it, the Fifth Circuit, I believe held this case some two years --

Justice Byron R. White: Well, doesn’t Judge June’s concurring opinion?

Mr. William F. Goodman Jr.: He mentioned that sir.

Justice Byron R. White: Indeed what he says is so --

Mr. William F. Goodman Jr.: They held it two years to dissent, I believe.

Justice Byron R. White: Yes, but he says that “None of the delays attributable to the parties, it was all court produced.

This is not to attribute the long delay to the parties that this court produced.”

And then Judge Clayton died meanwhile, didn’t he?

Mr. William F. Goodman Jr.: Yes sir.

Justice Byron R. White: Apparently, that made a --

Mr. William F. Goodman Jr.: I think what happened is that when the majority opinion was rendered in the Fifth Circuit that the other judges reserved the right to file a dissenting opinion and this act alone took two years, so that’s part of the briefs.

Justice John M. Harlan: But what I’ll be getting, of course the record that -- could you say would there has been any changes in the situation between 1963 to 1970, and why seven years?

Mr. William F. Goodman Jr.: I was going to touch on that and I’m glad you asked me.

It maybe, if the Court please that some day, the City of Jackson will choose to reopen these pools or build others.

We have a new city administration in Jackson.

We don’t have a single person on the council that was on the council when this decision was made.

It may well be that the City of Jackson will on its own decide to change this policy.

On the other hand it may not.

This is something which I’m not prepared to say, but I am prepared to say that sets Clark, the City of Jackson is fully integrated.

It has fully accepted Clark.

Every public facility is in full compliance with the laws of the United States and the decisions of this Court.

And I have no reason to believe but that the city officials in their discretion will do the proper thing at the proper time with regard to swimming pools as well as any other recreational facility in that city.

Justice John M. Harlan: What do you consider to be the proper thing?

Mr. William F. Goodman Jr.: What do I consider to be the proper thing?

I think --

Justice John M. Harlan: What do you mean by that, I’m not asking you to --

Mr. William F. Goodman Jr.: I think that what that simply means is what the situation in Jackson, Mississippi is at a particular time, both insofar as friction is concerned, insofar as money is concerned and insofar as it’s overall recreational program is concerned.

Justice Hugo L. Black: How many voters in Jackson?

Mr. William F. Goodman Jr.: Jackson is now about 175,000 people.

Justice Hugo L. Black: How many white, how many colored?

Mr. William F. Goodman Jr.: Approximately 60% white.

Back when this suit was filed, I think the record showed the city was 150,000, 100,000 white, 50,000 black.

Justice Hugo L. Black: Do they have any colored officials now in the city?

Mr. William F. Goodman Jr.: On the council?

Justice Hugo L. Black: Yes.

Mr. William F. Goodman Jr.: No sir.

Justice Hugo L. Black: Anywhere in the city?

Mr. William F. Goodman Jr.: Well we only have a Mayor and two Commissioners who are elected officials.

We have --

Justice Hugo L. Black: The others are appointed.

Mr. William F. Goodman Jr.: The others are appointed.

We certainly have colored people working for the city.

Justice Hugo L. Black: In the county, what about the county?

Mr. William F. Goodman Jr.: No sir.

The county is operated by a five-man board of supervisors.

And that board at the moment is all white.

Justice Hugo L. Black: What about the police force?

Mr. William F. Goodman Jr.: Oh, we’ve had blacks on the police force for many years in Jackson. Certainly since the time this all originated.

Finally, if the Court please, what I’d like to leave with you is that there is a limit to which this Court can reasonably go under the constitution.

We can’t make constitutional questions where no constitutional issue exists.

This lawsuit has been handled from the time it was filed up until the present time by my senior partner.

He was unable to appear here and argue it because of a conflict.

It’s been an honor for me to appear before this Court, and I hope that the Court will not penalize the City of Jackson because we sent the second team.

This is a serious case to the City of Jackson for it honestly felt that the time this decision was made and honestly feels today that there was no constitutional question presented.

And in conclusion, let met remind the Court that this case was filed on a Fourteenth Amendment theory.

The Thirteenth Amendment argument came as an afterthought.

That afterthought has been ignored by the United States, but now the afterthought seems to be the primary thrust of the petitioners who are simply grasping for some way to find the constitutional issue where none exists.

We submit the judgment below should be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Goodman.

Mr. Rosen you have five minutes.

Rebuttal of Paul A. Rosen

Mr. Paul A. Rosen: Thank you.

Just to go outside of the record in terms, I believe Justice Harlan’s question concerning the status of the pools on what has occurred.

I might say that the black citizens did ask the council this summer to open the pools on an integrated basis.

That request was rejected.

Moreover, the city’s position in this case stated very clearly in the affidavits in the proof, this is not a transitory situation.

The city says that the city therefore decided not to offer that type of recreational facility to any of its citizens, and it has not done so and does not intend to reopen any of said pools.

Now we --

Justice Byron R. White: Mr. Rosen, if you were to prevail here, would the City of Jackson be locked in to operating pools irrespective of the economic consequences of that operation?

Mr. Paul A. Rosen: If the question is forever, if it was purely an economic problem having nothing to do with race or opposition integration, they could handle that problem the way any community handles that problem.

That is purely an economic decision.

But if it becomes a consideration of race which creates the economic difficulties, then it seems to me this Court in numerous decisions has answered that question.

It answered it in Watson, and answered it in Brown, and answered it in Green.

Justice Byron R. White: Well this is in the premise of my question.

For you to prevail here, this racial overtone, I assume you will concede must be present.

Now suppose you prevail and suppose they lose economically year after year by increasing amounts, my question is are they locked in forever?

Mr. Paul A. Rosen: If the question is, are they locked in forever because of racial problems which cause a rise in the economic difficulties in operating the pool?

My answer would be that they would be locked in.

Our hope in this country is that if we can get white men to accept blacks as equal that the threats that respondent talked about, will soon leave us.

This is what the Colonel Commissioner says.

This is what this Court really said in Brown.

We know that there are difficulties but the solution is not repression.

The solution is not closing facilities.

The solution is to abide by the constitution and to say once and for all that black man are freemen, having the same rights that white men have.

Justice Potter Stewart: Speaking of the constitution then of your reference to freeman, was there any Thirteenth Amendment claims made throughout this litigation until we got here?

Mr. Paul A. Rosen: Yes Your Honor.

Justice Potter Stewart: There was?

Mr. Paul A. Rosen: It was not made in the complaint.

It was however urged --

Justice Potter Stewart: Not on the complaint you say?

Mr. Paul A. Rosen: That’s correct.

The 1981 was.

In the Fifth Circuit Court of Appeals, en banc, the brief did deal with the Thirteenth Amendment -- Fourteenth Amendment.

Justice Potter Stewart: I couldn’t find any reference to the Thirteenth Amendment and the either opinion in the Court of Appeals en banc, but maybe I read it too fast.

Mr. Paul A. Rosen: I believe if you’ll look at the concluding paragraph of Judge Wisdom’s opinion, I believe it’s the one.

You will see that he talks about the Thirteenth, Fourteenth and Fifteenth Amendment.

Justice Potter Stewart: Yeah, well he talks about the, I think the (Inaudible) something where I have the appendix, towards the end of the appendix it would be.

Mr. Paul A. Rosen: Page 72 and 73.

He talks about Dred Scott.

Justice Potter Stewart: Yes, I saw that.

Mr. Paul A. Rosen: He talks about subordinate or inferior beings.

He talks about members --

Justice Potter Stewart: Then he says the Thirteenth, Fourteenth and Fifteenth Amendments.

That’s the only reference is it?

Mr. Paul A. Rosen: That’s correct.

Justice Potter Stewart: None on the court opinion?

Mr. Paul A. Rosen: None in the three-judge court.

Justice Potter Stewart: Court reading?

Mr. Paul A. Rosen: That’s right.

Justice Potter Stewart: Right, thank you.

Mr. Paul A. Rosen: The city has maintained that we have not sustained the burden of proof in this case.

Proof in this case was the city was motivated by the integration order.

That’s all we need to show.

The decisions of this Court in McLaughlin, the decision of this Court in Watson, the decision of this Court in Green, the decision of many lower courts have all said when that’s proven in the context of this case, they have the burden of coming forward and showing that it was not discrimination which caused the closing of the pools.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Rosen, gentlemen.

The case is submitted.

Rebuttal of William M. Kunstler

Mr. William M. Kunstler: Before we go, my I introduce, we have two young men at the play.

I know it may be a little unusual, but they did work very hard in brief -- worked on the amicus brief.

So, I’d like to tell the Court and William Hoe as it was co-counsel with its opposite appellate brief.

Chief Justice Warren E. Burger: Very well.

Mr. William M. Kunstler: And then William Goodman who worked with us.

Rebuttal of William F. Goodman Jr.

Mr. William F. Goodman Jr.: Thank you.

Rebuttal of Paul A. Rosen

Mr. Paul A. Rosen: Thank you.

Chief Justice Warren E. Burger: Case is submitted.