Correspondence from Lani Guinier to David W. Odom (Federal Court Reporter) Re: United States v. Spiver Gordon

    In The
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

Washington, D. C.

GEORGIA,
Petitioner,

vs.

THOMAS RACHEL, ET AL
Respondents

April 26, i960

No. 147

W A R D  & P A U L
OFFICIAL REPORTERS 

917 G STREET, N. W. 

Washington, D. C. 20001
( 4266 
) 4267 

6 2 8 '  ) 4268 
( 4269



Shelburne
wh

IN THE SUPREME COURT OF THE UNITED STATES

14

OCTOBER TERM, 1965

GEORGIA,

Petitioner,

vs.

THOMAS RACHEL, et al.

Respondents.

No. 147

Washington, D. C.

Tuesday, April 26, 1966.

The above-entitled matter came on for oral argument at 

10:00 o’clock a.m.

PRESENT:

The Chief Justice, Earl Warren, and Associate Justices 

Black, Douglas, Clark, Harlan, Brennan, Stewart, White and 

Fortas.

APPEARANCES:

On behalf of the Petitioner:

J. ROBERT SPARKS- Assistant Solicitor General 
Atlanta Judicial Circuit

On behalf of the Respondents:

ANTHONY G. AMSTERDAM 
3400 Chestnut Street
Philadelphia, Pennsylvania 19104 *•'



Shelburne
wh

C O N T E N T S

Argument on behalf of the Petitioner 
by Mr. Sparks

PAGE
15

Argument on behalf of the Respondent 
by Mr. Amsterdam 38



15
2 THE CHIEF JUSTICE: Number 147, the State of Georgia

petitioner, versus Thomas Rachel, et al,

Mr. McPherson, had you finished your argument?

MR. MC PHERSON: I have, Mr. Chief Justice.

THE CHIEF JUSTICE: Mr. Sparks, you may proceed with

your argument.

ARGUMENT ON BEHALF OF THE PETITIONER

BY J. ROBERT SPARKS, ASSISTANT SOLICITOR GENERAL

ATLANTA JUDICIAL CIRCUIT

MR. SPARKS: Mr. Chief Justice and Honorable Associate

Justices, I am going to make my argument upon the merits of the 

case, if this court reaches the merits. Georgia insists and Mr. 

McPherson ably argued yesterday that this case should not even 

be here in the first place because the Notice of Appeal was filed 

16 days after the District Court order of remand. However, in 

the event the court disagrees with our position, I am going to 

try to briefly state the position of the State of Georgia in this 

matter.

As the Court is undoubtedly aware, this is an extremely 

complex problem of construction of the removal suit, the so-called 

Civil Rights Removal Statute, which is 29 U.S.C. 1443. It 

dates back to the Reconstruction Congress in 1866, the first

Civil Rights Act, enacted right after the conclusion of the war 

between The states, granting the right of removal to any person 

who is unable to enforce or is denied his rights in a state 

court under any lav/ providing for equal civil rights for all



16

citizens of the United States.

In 1380 we have the first definitive construction of 

that statute, two cases which this honorable Court, Strauder 

versus West Virginia in 100 U„S. at 303, and Virginia versus 

Rives in 100 US at 313, both decided the same day.

There is one essential difference between the two cases. 

Both cases involved an alleged deprivation by Negro defendants 

charged with capital offenses in West Virginia and in Virginia. 

Their complaint —  the reason for which they claimed the right to 

remove the cases from state courts to the Federal Circuit Court 

at that time was that it was a deprivation or a systematic 

exclusion of Negroes from the traverse jury.

Now, in the Strauder case West Virginia at that time had 

a provision in their constitution which limited electors tc white 

persons with senatorial qualifications. And then they had a sta­

tute which in turn said that only electors could serve as grand 

jurors and traverse jurors. On the other hand, Virginia had 

no such statute or provision in their constitution. The allegation 

in the Virginia case was that jury commissioners, judges and 

state officials were systematically excluding Negroes from traverse 

and grand juries, although not required to do so by statute.

At that time this honorable Court held in the Strauder 

case that removal was proper, and should have been granted, and 

they reversed the conviction.

And the Strauder case reached this honerable court 

through the usual procedure of appeal through the state courts and



17

certiorari to the highest court of that state.

Nov/, Virginia filed a petition in this honerable Court 

for a writ of mandamus against Circuit Court Judge Rives, who 

had accepted a petition for removal and issued a writ of habeas 

corpus, and had denied —  excuse me, I don't think Virginia 

even filed a petition to remand, they just came straight to this 

Court for an order of mandamus.

And this honorable Court, in a unanimous decision, 

held in Virginia versus Rive s that in order for a defendant, to 

remove his case under the Civil Rights Statute, that there must 

be a discrimination set out by the state statute or a state 

order that any alleged discrimination or denial of equal rights by 

any per soil other than by state statute was not removable, and that 

the proper remedy for such defendants v/as to defend themselves 

through the court and reserve their Federal rate and then apply 

to this honorable Court for certiorari.

And Your Honors, Georgia stands today on the Virginia 

versus Rives case and seven other cases decided by this honorable 

Court, beginning in 1880 and going through 1906, Kentucky 

versus Powers being the last expression on this subject, in 201 

U.S., page 1.

In eight consecutive rulings of this Court has heild 

the same thing, that is, that there must be a state statute which 

prevents the exercise of a constitutional right , a state statute 

which is either unconstitutional or which denies a defendant in



18

the state court an equal right.

This is the first time that this issue has reached this 

honorable Court since 1906. And as I say, Georgia stands on those 

eight decisions of this honorable Court, plus four courts of appeal 

which have held to the same effect, three of them within the last 

two years. The three that I refer to in the last two years was 

the Second Circuit Court of Appeals in New York versus Galamison —  

and incidentally, this honorable Court denied certiorari in that 

case —  the City of Chester, South Carolina versus Anderson — - 

that is by the Third Circuit Court of Appeals —  and a recent 

decision by the Fourth Circuit Court of 2\ppeals —

JUSTICE STEWART: If I may interrupt just a minute,

that wasn't South Carolina, that was Chester, Pennsylvania, 

wasn't it, the Third Circuit?

MR. SPARKS: Yes, you are right, Chester(Pennsylvania,

excuse me.

And the Fourth Circuit case is Baines versus the City 

of Danville, Virginia. That case has only recently been decided 

by a majority of the Fourth Circuit Court of Appeals, I believe 

in February. It has not come out in the advance sheet yet.

And the Sixth Circuit Court of Appeals in some 

slightly older cases, Hull versus Jackson County Circuit Court, 

and Snypp versus Ohio, the first of those cases in 138 Fed 2nd 

820, and the second in 70 Fed 2nd 535 —  those four circuits have 

all followed the Rives-Powers line of cases. And from henceforth



19

in this argument I will refer to the previous decisions as Rives- 

Powers, which includes Neal against Delaware, Smith Versus 

Mississippi, Murray versus Louisiana, Bush versus Kentucky, 

and Williams versus,Mississippi.

In addition, Your Honors, ever since the Kentucky 

versus Powers case the district courts in twelve states have 

universally and without exception followed the Powers ruling. 

Virtually all the states of the South, including New York,

Michigan —  these are outside of the South, I should say —  New 

York, Michigan, Pennsylvania, California and New Jersey have 

universally refused to entertain removal petitions, or have 

promptly remanded them when a petition for remand was filed, where 

a discriminatory state statute was not alleged in the petition 

for removal.

Now, this is the first case which departs from this 

long line of Federal cases. The Fifth Circuit Court in the 

Rachel case, by a three-panel court, which was split three ways — - 

there were three opinions written, one opinion for the court 

written by Chief Judge Covel, one opinion by District Judge White, 

who was sitting by designation —  District Judge White first 

agreed with Mr. McPherson5s argument that the appeals were not 

timely filed, and said that Rule 3782 does apply, and the appeal 

should have been dismissed, and he adhered to that on rehearing.

Circuit Court Judge Griffin Bell agreed with the 

majority of the court that the appeal was timely filed, and the



2C

case should be remanded to the District Court for a hearing’. But 

he differed sharply with what should be done at the hearing. The 

First Circuit majority opinion directed the District Court to 

have a hearing and to dismiss the prosecutions if one single 

criteria were found, and that is that the respondents were 

removed from the places of public accommodation for racial reasons 

alone, basing it, of course, on this Court's holding in Hamm versus 

the City of Rock Hill.

Circuit Judge Bell sharply disagreed. He said that this 

constituted in his opinion a breach of the principles of 

federalism as he knew it, and such casual treatment of the Georgia 

courts presented a problem of jeopardy of the relationships be­

tween steite and Federal courts. Judge Bell said that if the cases 

were remanded to the district courts that the respondent should 

be required to prove that they cannot receive a fair trial in the 

courts of the State of Georgia.

Nov/, the opinion of the Fifth Circuit did not say a 

word about that. They just said, take the case back, and if you 

find that race was involved in the removal, dismiss the prosecu­

tion.

That gives the court no chance, the District Court 

no chance to determine whether or not the facts of each particular 

case — * and there are 103 cases pending in the U. S. District 

Court for the Northern District of Georgia alone involving some 

twenty demonstrations in places all over Atlanta, sit-in



21
demonstrations. This court in Hamm versus Rock Hill,, of course, 

held that a person cannot be punished or prosecuted for 

peaceable, nonforcible exercise of the rights granted him by the 

Civil Rights Act of 1964 with respect to public accommodations.

That does not include all conduct which might take place in those 

places.

Another thing which we particularly want to call to 

this Court’s attention is the fact that the Supreme Court of 

Georgia has followed the Hamm versus Rock Hill decision of this 

honorable Court in the unanimous decision by the Georgia Supreme 

Court in Bolton versus the State of Georgia. The Georgia Supreme 

Court discussed the decision of this court in Hamm versus .Rock 

Hill, and voided a series of trespass convictions which arose 

for a sit-in or demonstrations in Athens, Georgia restaurant.

Judge Bell, the dissenting judge of the Fifth Circuit Panel, 

said that the Georgia court should have a chance to pass upon 

these cases in the light of the decision in the Bolton case, and 

the fact that they had recognized and were following the decisions 

of this Court.

I might add parenthetically, Your Honors, that up until 

three years ago I was Assistant U. S. Attorney in the Northern 

District of Georgia, in fact, I was First Assistant for several 

years, and I have been on both sides of this removal question.

I on occasion had to remove cases from state to Federal Court 

under Section 1442 where Federal officers were charged for 

offenses committed in the performance or undercover of their office



22

And it seems to me that the decision of the Fifth 

Circuit Court of Appeals is a radical departure from all of the 

decisions of this honorable Court on the question of removal.

And I am talking about removal, and not whether the defendants 

or the respondents would be convicted if they were tried in the 

state court, but simply on the basic question of whether or not 

a person can allege in a pure conclusion as they did in the Rachel 

petition. If the Court will —  and I am certain it will -;« read 

the Rachel petition, you will see that it is nothing but conclu­

sions. They aliens only the fact that 20 people were arrested in 

this place, this place, and this place. They said they were 

arrested while attempting to exercise their right to seek food, 

comfort and entertainment at these public restaurants. Now, 

at the time this petition was filed the Civil Rights Act of 

1964 had not been enacted into law.

Then they allege in one sentence that the "State of 

Georgia, by statute, custom, usage and practice, supports and 

maintains a policy of racial discrimination." And then they 

allege that they are denied their rights, and cannot enforce 

their rights in the courts of the State of Georgia before any

action is taken against any of these persons, before trial. They 

do not allege a single discriminatory act by a judge, they do not 

allege any oppressive act by any prosecuting attorney, they 

simply say. because we were arrested we conclude that Georgia 

pra.ctices such a policy of racial discrimination. They do not



23

even allege that the statute, the trespass statute: under which 

they are being prosecuted, is either unconstitutional or is being 

unconstitutionally applied as to them.

District Judge Eoyd Sloan, who has recently retired 

from the bench, and who has been both a state and Federal court 

judge for about forty years promptly remanded it the next day 

after it "was filed, remanded all the cases to the state. And 

relying upon all these decisions of the appellate courts ar.d 

this honorable Court, they ruled that it did not set out grounds 

for removal.

Now, the respondent in this case —  I believe Mr. 

Amsterdam wrote the brief, I am so informed —  incidentally, it 

was a very excellent brief, he has obviously spent years studying 

this situation —  it goes back into history, congressional 

history, and so forth. But Mr. Amsterdamf if he wrote the 

brief —  and I understand chett he did -- claims that this Court 

can uphold the Fifth Circuit ruling in the Rachel case without 

disturbing the Rives-Pov;ers line of decisions.

And he says that is so for this reason. He says that 

the Rives-Powers line of cases are a procedural matter, that they 

protect a right under the 14th Amendment against a procedural 

matter, that is, the right to have members of your own race; 

impaneled on a traverse jury which is to try you. And in the 

Rachel case the right the petitioners are seeking from the 

respondent, are seeking to reserve by removing to Federal court,



24
is a right against prosecution. And he said that that is a substan­

tive right, whereas the Rives-Povers line of cases are a procedural 

right only and therefore there is a distinction, that this court 

can distinguish the Rives-Powers line of authority from this 

case.

But I wish to call the Court1s attention to the fact 

that that is not what the court said, what this honorable Court 

said in 1880 in Strauder versus West Virginia, the first of the 

cases. At page 305 the Court asked this rhetorical question —  

and this was a unanimous decision of this Court —  "Is not pro­

tection against race or color prejudice in the impaneling of a 

jury a right, a legal right under the Constitutional Amendment?"

And then they answered this —  that was the 14th Amendment 

of course —  they answered it by saying that the statutes of 

West Virginia, discriminating as they do in the selection of 

jurors, amount to a denial of the equal protection of the law 

to a colored man when he is put on trial for an alleged offense 

against the state.

And I submit that that is a substantive right. I 

submit that respondents are hair-splitting when they say the 

difference between removing a case to the Federal court because 

you can't have a person of your own color on the jury which 

tries you, and removing a case because you cannot be prosecuted 

if you are within the holding of Hamm versus Rock Hill -- they 

are both substantive riahts. Either one is procedural. One is



procedural in the fact that prosecution is going forward. In the 

Rachel prosecution was going forward, and it was a question of 

state procedure there.

Again, Mr. Amsterdam, or the respondents, says on page 

95 of their brief —  and this is the essence of the case as I 

see it ■—  they say that defendant's prosecuted for the 

exercise of the right to equal public accommodations granted by 

the Civil Rights Act of 1954 may remove the prosecution to a 

Federal District Court whether the statute under which they are 

charged violates these rights on its face or as applied".

In other words, the respondents are saying that 

they have an absolute right to remove the case regardless of 

whether the statute is being constitutionally applied, or is 

constitutional on its face. In fact, in the brief for respondents 

they argue that persons prosecuted in the exercise of the rights 

granted under the Civil Rights Act of 1964 are insulated from 

the prosecutive process. And I don’t believe that Mr. Amsterdam 

will quarrel with those words. He uses the term "insulatior. " 

several times, that they simply cannot be prosecuted. And I most 

respectfully submit to the court that if the Court should adopt 

respondent’s theory in this respect it would create ? virtual no 

man’s laiid in law enforcement in cases arising or possibly 

arising in the future out of this Act. Mr. Amsterdam apparently 

contends for the respondent that if a person is arrested in a 

place of public accommodations, that before he gets to the jail



26

house his lawyers can file a removal petition and he will be 

brought into Federal court, because he says that the Civil Rights 

Act of 1964, taken in conjunction with Hamm versus Rock Hill, 

insulates him against prosecution at all. And I respectfully 

submit to the Court that that would leave the states and the Federal 

law enforcement officials in a quandry as to how to proceed.

If I might pose a hypothetical question, a hypothetical 

situation, suppose that a number of demonstrators, seeking to 

exercise their right to eat in a restaurant, a segregated restau­

rant —  and incidentally, there are very few of those in the 

South anymore, Atlanta is completely integrated, as integrated as 

Washington, D. C. but suppose that they went in and some 

persons on the inside who did not agree with them started an argu­

ment, and suppose that both sides started fighting and rioting 

on the inside, and suppose that the demonstrators themselves were 

fighting, who would move into control that if this court says 

that the demonstrators are insulated from prosecution, from 

state prosecution? Certainly the Federal could not move in, 

because Federal law enforcement officers cannot move in unless 

they are authorized by specific statute to give criminal jurisdic­

tion, as the FBI and Internal Revenue are. The state officials 

certainly would be loathe to move in, because they would have the 

idea that they are making a case to be carried to the Federal 

Court.

I am most anxious to submit to the court that this a



27

14 matter of grave importance to the whole country at large. I

would venture to say that thousands of cases of state court 

prosecution will rest on what this Court says, 103 in Georgia 

alone.

JUSTICE HARLAN; Do you know what the total figure in 

Georgia is?

MR. SPARKS; No, I do not know what the total figure 

is. But I know that there are a number of district courts that 

are reserving rulings —  I know that there are a number pending 

in Greenwood versus Peacock, which is following me in the argument.

JUSTICE WHITE: Do you think your case is really like

Peacock?

MR. SPARKS: Your Honor, Mississippi and Georgia ~~

JUSTICE WHITE: Isn’t all that is involved in your

case a question of the way the case was decided anyway, whether 

or not the prosecution for conduct is expressly permitted by 

Federal law is to be removed?

MR. SPARKS: Yes, sir, that is the difference between

Peacock and Rachel.

JUSTICE WHITE: And the law was aimed at giving equal

rights in public accommodations? That is the Federal law that 

is involved here?

MR. SPARKS: Yes, that is the Federal law which is

involved. The difference between Rachel and Peacock —  and I am

not trying to undermine the sister state of Mississippi, because



28

they have helped me, and I have helped them in briefing on this 

case -—  but Rachel stands on a different footing from Peacock 

in these respects, answering Justice White's question. In the 

Rachel case the petition is grossly inadequate for removal. The 

petition in Peacock, as I read the opinion of the Fifth Circuit, 

alleges that the Mississippi —

JUSTICE WHITE; Let's get back, though, to your statement 

that on the outcome of this case depends hundreds of other 

cases in the Federal Court. Kow many states are going to prosecute 

for entering a restaurant and securing service?

MR. SPARKS: Wot very many.

JUSTICE WHITE: Do you mean that there are hundreds of

cases like this around the country?

MR. SPARKS: Wot very many, Your Honor, in the larger

cities such as Atlanta and Bir*ninc?har, I assume, and places like 

that. But throughout the South there are many smaller places 

in which prosecution might be commenced.

JUSTICE WHITE; But, counsel, tell me, why would a 

prosecution in a state court still be pending if it relates to 

entering a restaurant and asking for service, conduct which is 

covered by the Federal law, a case which under Hamm versus Lupper 

should not get off the ground? Why are those cases still pending? 

Are there any?

MR. SPARKS: Yes, some are pending. I think they are

pending in the district courts, they have been removed to the

district court



2 9

Your Honor, some of them undoubted3.y will be dismissed, 

whether they go back to the state court or whether they stay in 

the Federal court. Some, however, go beyond the holding in Hamm 

and Lupper. Some involve violence on the part of the demonstrators 

acts of vandalism in restaurants, which I do not believe this 

Court insulated in Hamm versus Lupper.

JUSTICE WHITEs No. So there is really an argument 

over the scope of the privilege.

MR. SPARKS: Yes, there is an argument over the scope.

And that is one of the points that we specifically make in our 

brief, in the event we don't prevail at all, that the district 

court at least should be allowed to determine whether or not 

the cases fall within Hamm and Lupper, if so, they are protected, 

it is protected conduct. But if they are outside the peaceable, 

nonviolence scope of Hamm and Lupper, then they should be 

remanded to the state court. And that is what Circuit Court 

Judge Bell said.

JUSTICE WHITE: Yes, they should be. But do you think

the trial about whether or not the Federal privilege has been 

exceeded, the actual trial of that controversy should take place 

in the state court?

MR. SPARKS: Yes, I feel that —

JUSTICE WHITE: And if a motion to remand just simply

claims that the Federal privilege has been exceeded, there should 

be a remand to the state court to have the trial?

MR. SPARKS: Yes, sir, I think so, because otherwise



30

17 you will have your Federal district courts trying municipal

court cases, disorderly conduct, and things like that. The Federal 

district courts are flooded with them now.

I am just speaking -—  expressing an opinion, but I 

don't think the Federal district courts will want those cases, 

because uniformly they remand them when the state asks for them 

to be remanded. Of course, I know that the district courts will 

entertain them if they are directed to, or if this court dec des 

that they should. But this contention of the appellant's virtually 

amounts to creating an original trial jurisdiction in the Federal 

court. It is like asking this court by judicial decree to decree 

a new type of Federal jurisdiction, the Federal District Courts 

will entertain all cases arising under the Civil Rights Act, and 
hence by state prosecution.

JUSTICE CLARK: Those that wanted to raise the Hamm

and Lupper issue, they filed a motion, I suppose, to dismiss?

MR. SPARKS: I didn't hear the first part of your
question, Your Honor.

JUSTICE CLARK: I said, assuming they wished to raise

the Hamm and Lupper defense in the state of Georgia, they filed a 

motion to dismiss on the ground of Hamm and Lupper?

MR. SPARKS: Yes. In Georgia it is called a plea in
abatement.

JUSTICE CLARK: You would have a hearing on that, and

if the state does not prosecute any evidence of violence, then



31

you say ~

MR. SPARKS: X would say that the state court would

certainly dismiss under both the state and Georgia —  the Georgia 

Supreme Court —-

JUSTICE CLARK: Then you would not have a trial?

MR. SPARKS: You would not have a trial., it would be

merely a hearing.

JUSTICE CLARK: You. would have a hearing?

MR. SPARKS: If they went beyond the scope of Hamm versus

Lupper, then there would be a jury trial, with questions as to 

whether they violated, or trial before the court without a 

jury as to what they violated.

JUSTICE CLARK; If the court overruled a motion, I 

suppose you would have to have a trial.

MR. SPARKS: Yes, you would have a trial there.

My light has flashed.

I want to call the attention of the Court to one other 

thing, if I might take just one minute, and that is that the 

construction that is sought by this Court —

THE CHIEF JUSTICE: That vzaan’t your closing. That

was probably some notification you gave.

MR. SPARKS: Yes, sir. I have not figured out these

lights yet.

THE CHIEF JUSTICE: The white one comes on five minutes

before your time is up



32
MR. SPARKS: I saw the red one flash just then and I

thought ray time was up.

I just have one other thing to say, Your Honors.
\

The action which the respondents are asking this court 

to take today is ore that they tried to get enacted into lav; 

in 1964 when the IS64 Civil RightsAct was passed. House Resolu­

tion H.R. 7702 was introduced by Mr. Kastenmeier, and it sought 

to amend Section 1443 using these words:

"The right of removal under this section 

shall be freely sustained, and this section shall 

be construed to apply to any state action, executive, 

legislative or administrative, or otherwise having 

the effect of denial or abridgement of equal rights.1 

And Congress did not so amend the statute. And that 

is what in effect the respondents are asking this court to do 

judicially, when Congress did not pass the Act in that form.

JUSTICE CLARK: Is that reference in your brief?

MR. SPARKS: No, I did not know about it. It is

House Resolution 7702. My colleague from Mississippi told me 

about it yesterday.

JUSTICE CLARK: What colleague is this?

MR. SPARKS: It is in the Peacock reply brief.

JUSTICE FORTASs Mr* Sparks, may I ask your reaction 

to this. It seems to me possible that we are dealing with an 

issue here that has several layers to it. First, as I understand 

it, the district court here, on the basis of perhaps some wrong



33

decisions, just held that the 1443 was not available because 

there was no state statute or ordinance or constitutional 

provision here. So it may be that we have that issue before us, 

1443, available only where a state statute, et cetera, is 

controlling or seems to control a state action. Right?

MR. SP21RKSs Yes.

JUSTICE FORTAS: And then the second action may be

what standards should cover the district court in determining 

whether to remand the case to the state court. The district 

court here did not reach that issue, did it?

MR. SPARKSs No, sir. The district court proceeded 

on the ground that if the removal petition itself does not 

set out the ground,, that it should be remanded. And that has 

been the practice in many of the —  well, in practically all of 

the Federal courts. It has not been the practice of the courts, 

the district courts to hold hearings, they read the removal peti~ 

tion like a pleading.

JUSTICE FORTASs I want to take this theoretically with 

you, if I may. Let's assume that the peittion did set out, did 

make proper allegations, whatever they may be. The fact of the 

matter is here is that the district court did not reach the 

question of what allegations have to be made to make out a case 

for remand before ruling, is that right?

MR. SPARKSs Yes, sir. The district court just says 

that the respondents have not shown —  have not alleged that any



34
21 statute was unconstitutional , and they have not pointed to any

statute that in any way --

JUSTICE FORTAS: He did not go beyond that?

MR. SPARKS: He did not go beyond that.

JUSTICE FORTAS: If we should disagree, if we should

hold that there can be factors other than the provision of a 

state statute or constitutional provision which would provide an 

adequate basis for removal under the 1443, then I assume there 

would arise the question as to what are those other circumstances 

that would justify removal, correct?

MR. SPARKS: Yes, sir, if the court should hold that,

I think Your Honor is right.

JUSTICE FORTASs And the district court has not passed

on that?

MR. SPARKS: Mo, sir, the district court, has not passed

on that. And under the present ruling of the Fifth Circuit 

it can't pass on anything except whether or not race was involved 

in the removal of the persons from public accommodations.

I respectfully submit to the court that guidance is 

badly needed, and I am certain the Court will give guidance in 

this field. But the state authorities don't knox* what to do, 

and the Federal district courts don't knoxv what to do. This is 

a relatively new problem, although age-old, I mean the present 

facet.

Mow, we respectfully submit that Georgia can handle 

these cases fairly. Our Supreme Court has followed Hamm and



35

22 Lupper

JUSTICE WHITE; Could I just make clear, does Georgia 

claim in this case that the conduct that is involved in this 

case is not protected by the public accommodations law? Is 

there any clciivn here that the Federal privilege is exceeded?

MR. SPARKS; Your Honor, I can't answer that categori­

cally,, because as I say, this covers about 20 cases, and I am 

not familiar with the evidence in all of the cases. But I can 

say this, in some instances I think that the conduct would be 

covered by Hamm versus Lupper, I mean it would be insulated.

Some demonstrations were peaceful. Others involved pushing, 

shoving, kicking by the demonstrators. They tried to force their 

way into one restaurant, they formed a flying wedge and rushed 

the door, kicked the proprietor on the leg, and so forth. That 

type I do not believe would be covered by Hamm versus Lupper.

JUSTICE WHITE: Why do you suppose that to the extent

that there are some of these cases where there may be no 

claim that the Federal privilege was exceeded, why are those 

cases even still filed in the state courts?

MR. SPARKS; Well, Your Honor, there were 101 of

them —

these?

JUSTICE WHITE; I suppose you could still dismiss

MR. SPARKS: There were 101 of them indicted, and only

two got tried. And then the whole batch was removed over to the



36

23 Federal court. And we have been fighting the question of removal-

ability ever since.

JUSTICE WHITE; I know, but only 50 of them were covered 

—  they were removed before Hamm and Lupper ever came down.

MR. SPARKS; Yes, that is true.

JUSTICE WHITE; And after Hamm and Lupper, there are 

350 of them that didn't deserve to be there. I would have 

thought that they would have been dismissed long ago.

MR. SPARKS; Your Honor, the district covirt has net 

had the jurisdiction of these cases so that they could be dismissed 

in that time. They have been on appeal ever since. They were cn 

appeal when Hamm and Lupper came down.

JUSTICE BLACK; You mean the Georgia court?

MR. SPARKS; Ho, I mean the Federal District Court 

has not had jurisdiction of these cases. They have been on 

appeal ever since .

JUSTICE BLACK; In Georgia?

MR. SPARKS; Wo, sir, going up through the Fifth 

Circuit Court of Appeals.

JUSTICE BLACK; Neither the local district court, the 

Federal court, or the local state court had them before them at 

that time?

MR. SPARKS: No, they have not had them before them,

because they have been on appeal all this time the remittance or 

the mandate has never gone back to the Circuit pending the appeal



37
24 on certiorari before this court, and no one has had jurisdiction

over them since that time except this court, in a manner of speak­

ing.

JUSTICE BRENNAN: Is that a barrier, so to speak,

to the dismissal of those cases that would be governing?

MR. SPARKSs I don't think you can dismiss a case 

that is on appeal until the mandate is returned. The cases are 

not —  the district court has no power to enter an order.

JUSTICE BRENNAN: I am asking, because we constantly

get confessions of error here to dispose of cases, based on 

confessions of error, and independent examination of records, 

and so forth, could that be done in some of these cases? Even 

in this Court could that be done at this juncture?

MR. SPARKS: I don’t know, Your Honor. We are saying

that our position is that we want to get them back in state 

courts and let us dispose of them in the state court. We feel 

that they were improperly removed. And when we get them back 

we will dispose of them justly. Those that need to be dismissed 

we vzill dismiss in the State. Court, and those which may need 

to be tried we will try them in the state court . What we are 

saying is that —  this is purely a question of jurisdiction that; 

we are arguing right now, and not the merits of the case. And I 

could not tell you what the merits of any particular case was.

JUSTICE WHITE: I know, but you are suggesting that

the Georgia courts will and have been observing them, and to 

the extent that they will be dismissed they will be dismissed?



38

MR. SPARKS: Yes, and to the extent that they will be

prosecuted they will still be prosecuted.

JUSTICE WHITES But the fact is that all of these 

cases are still in the courts?

MR. SPARKSs Yes, sir, they are all in the courts. But 

none of them are in the state courts. They are all in the district 

courts for the Northern District of Georgia. And as I say, it 

has been on appeal continuously for about 18 months. And even 

the district court —  the district court does have jurisdiction 

of two which were just removed last week.

My time is up. And I appreciate the courtesy of the

court.

THE CHIEF JUSTICE: Mr. Amsterdam.

ARGUMENT ON BEHALF OF THE RESPONDENTS BY

MR. AMSTERDAM

MR. AMSTERDAMs Mr. Chief Justice, may it please the

Court.

Of the several grounds which Georgia urges for 

reversal here, one, the construction of a Civil Rights Removal 

Statute, is of overwhelming importance.

Mr. Sparks has just said, eloquently, I think, that 

state prosecutors in the Federal district courts need guidance 

in this matter. And the question is involved not only in this 

case, but in the Peacock case xvhich follows, and in others pending 

here and many pending in the lower courts.

I perhaps should say, in answer to Mr. Justice Harlan's



39
26 question of Mr. McPherson yesterday, that the issues in this

case, Rachel, are not exactly the same as those in Peacock, and 

that it might well be that Peacock might be decided in 

favor of a remand to the state court, although jurisdiction in 

the Rachel case vrould be sustained. I think it would be very 

difficult to decide the cases the other way around. But the 

issues are not exactly the same.

Because of the importance of the issues, because Congress 

in the Civil Rights Act of 1964 deemed their resolution by 

this court essential to the effective protection of Federal 

Rights —  Civil Rights by Federal Courts, I would like to argue 

that question, the question of construction of Section 1443 

of the Judicial Code first, notwithstanding the slight wrench 

in the strict logic which is involved in putting over until 

later the question raised by Mr. McPherson as to whether this 

court has jurisdiction to hear substantive contention on the 

merits.

Now, on the issue of statutory construction, the text 

which we must construe is set out at pages 2 and 3 of our 

brief. And I only refer to it at this time, not to argue the 

case under the language of the statute, but merely to outline 

the thought that it might be helpful to the court, the various

possible constructions of the statutes, and the contentions

made not only by the court here, but also by the lower courts which

passed on the question.



40

I do this because, as I shall say this a minute, I don't 

think that the question in this case is one that can be decided 

as a matter of language. I do not think that syllogistic tvork 

with words, I do not think that punctuation, I do not think that 

grammar is the answer to this case. I think its-answer is in 

history, and I think its answer is in the practical functioning 

of civil rights jurisdiction in this country today, questions 

that I shall come to very shortly in this argument.

Now, looking the language of the statute for the 

moment, just for the purpose of outlining the possible construc­

tions of it, I turn first to Section 1443(2), because although 

the Fifth Circuit below decided this case on Section 1443(1), 

as I shall make clear, I hope, a little later in the argument,

1 myself would prefer to see the Court's reaffirmance of the 

decision below, which it can do, on Section 1443(2), and also 

because Mr. Sparks has argued implications for this case from 

the Rives-Powers line of decisions. And those decisions are 

constructions only of Section 1443(1), leaving the court entirely 

free, I believe, to construe for the first time in this case, 

and the Peacock case following, Section 1443(2).

Now, 1443(2) allows removal where a prosecution is 

for any act under color of authority derived from any lav; 

providing for equal rights. There is also a refusing clause in 

Section 1443(2), which we do not rely on in this court, which I 

believe the petitioners in Peacock, the removal petitioners



41

in Peacock do rely on.

We construe the phrase "any act under color of 

authority derived from a law providing for equal rights" to mean 

any act which is authorized by a Federal law protecting civil 

rights which is permitted by a Federal law providing for equal 

rights, which is protected by a Federal lav; providing for equal 

rights.

JUSTICE HARLAN; You mean equal rights protected by the 

Constitution, do you not, and not by statute?

MR. AMSTERDAM; We do not need to reach that question 

in this case, because the rights which we claim in this case 

are protected expressly by sections 201 and 203 of the Civil 

Rights Act of 1964 , which Georgia has not contended is not a 

law providing for civil rights, but I think no lower Federal 

court has begun to-suggest is not, and vhich I think clearly 

is. So v.fe need not reach the constitutional question in this 

case.

JUSTICE FORTAS; Wasn't this petition filed by the 

court before the Civil Rights Act was passed?

MR. AMSTERDAM; It was filed and the case remanded 

before the Civil Rights Act was passed. I don’t think that af­

fects —

JUSTICE FORTAS; You don’t think that makes any 

difference?

MR. AMSTERDAM; No, not at all. Hamm and Lupper have 

resolved the question, as I take it, as to whether or not the



42

substantive protection of the Act applies in such case. The ques­

tion of whether or not Federal jurisdiction is proper in such 

cases is whether where a statute governing the jurisdiction 

of court should apply to pending cases. Now, traditionally 

a procedural, modal statute is applied to pending cases. I 

see no reason why the substantive provisions of the Civil Rights 

Act of 1964 do not begin to operate as of July 2, 1964. But as 

to that, I see no reason, why, if it could be removed under the 

state statute of 1866, we should not have the benefit of that.

The question, I think, is only whether or not we 

should have alleged with greater particularity than we did the 

right which we now seek to assert.

JUSTICE STEWART: How could you before the statute

was passed?

MR. AMSTERDAM: That is exactly our position.

JUSTICE STEWART: That is Justice Fortas5 question,

too.

MR, AMSTERDAM; I think that is right.

JUSTICE STEWART: At the time you filed this petition

to remove there was absent any of the justification which you 

now assert for it, isn't that correct?

MR. AMSTERDAM: Absolutely, Your Honor. Of course,

at that point the question was before this court, which the court 

has never resolved, and as to the constitutional protection of 

the conduct which we claim is now protected under the Civil



43

30 Rights Act. And it was under the Constitution that we originally
sought to remove , But unless this Court should find that because 

our pleadings are insufficient,, or for some other reason, Ilamm 

versus Lupper does not reach and protect this case, there need 

be reached no constitutional question in this case, for any 

question as to whether Section 1443 and its phrase, "law providing 

for equal rights", means anything under the Civil Rights Act of 

1964.

Wow, the State of Georgia has taken the position that 

an Act under color of authority means an act under color of 

office, and that it is limited in effect to Federal Officers and 

persons acting under them. And this is a position which has 

since been sustained bv the Court of Appeals for the Fifth 

Circuit in the Peacock, although within Rogers and Tuscaloosa 

and other cases involved in the Fifth Circuit the question is 

still open there.

The third possible construction of Sectio 1443(2) which 

should command the consideration of the court is by Judge Friendly 

the Galamison case in the Second Circuit. Judge Friendly, 

without resolving the question whether the phrase "color of 

authority" meant color of office, and whether the statute thus 

reached anybody other than the officers and persons acting under 

them, said that authority derived from the Federal law, only a 

Federal law directed a specific act to be done, an act was au­

thorised by under color of authority of law if there was a 

direction given by that lav; to do the Act. We think that does



44
not amount to very much other than the construction that the 

statute is limited to officers and persons acting under them, 

because no civil rights law that we know of directs anybody to 

do anything, other than Federal officers and persons acting under 

them. So I think that the alternatives meaningful ir.construc- 

tion are 1443(2) are simple, whether or not under color of 

authority means protected by Federal law, and thus reaches demon­

strators, sit-ins and persons who are protected by federal 

law which precludes their prosecution, or whether it is limited 

to Federal officers. And again for the moment without arguing, 

but just simply pointing out what the alternatives mean at this 

point, I would point out that that second construction puts 1443(2) 

off the books, because Section 1443(2)(a) of the Judicial Code 

today allows removal in all Federal officer cases, civil rights 

or otherwise, including persons acting under Federal .

Nov;, passing 1443(1) merely for the purpose of outlining 

what the issues are, and what the possible constructions are,

1443 (1), unlike 1443(2), asks the question ---

JUSTICE WHITE: Mr. Amsterdam, that other removal

statute didn't so provide until 1948, did it?

MR. AMSTERDAM: That was for the first time broadened

to include all Federal officers in the — *

JUSTICE WHITE: And before that it was Revenue

officers?

MR. AMSTERDAM: Revenue Officers only.

The first section of 1443 asks questions that the



45

second section doss not. It allows for removal only in the 

case of prosecutions or civil cases against a person who is 

denied or cannot enforce in the state courts an equal civil right 

protected by law, a right under a law providing for equal civil 

rights.

Now, the various possible constructions of 1443(1),

I think, are broader than those of 1443(2).

First of all, there is a construction of the Rives- 

Powers line of cases argued by Mr. Sparks this morning, that the 

denial spoken of by Section 1443(1) is a denial which arises 

in the face of a state statute or construction unconstitutional 

on its face, that where that exists it is both a necessary and 

sufficient condition for removal that no question can be asked 

whether the state court can uphold the statute as to con­

struction or can strike it down as unconstitutional, and that the 

one hallmark of removal ability is an unconstituional state statute.

A second possible interpretation is that when a removal 

petition is filed, as it new must be filed in advance of the 

trial, the Federal Courts shall try, case by case, issue by issue, 

the question whether the removal petition is being denied, or 

has been denied, and cannot enforce in state courts the right 

under the Constitution and laws.

For the moment I am treating the words "denied" and 

"cannot enforce" as though they were tautological, and I will 

come to a moment to the government’s position in Peacock that



46
they were not, a position which we don’t have to reach in our 

case, because we think that the result is the same, however one 

uses those two words.

But' a possibility in construing section 1443(1) would 

be to say that the Federal District Court, in honoring a 

petition, would try whether or not a petitioner who was charged 

with sitting in, or seeking service in a restaurant covered by the 

public accommodations title, could have his right to the 

defense of the Civil Rights Act of 1954 fairly tried in the state 

courts. And as I understand it, that is Mr. Sparks alternative 

contention, that we look to the Georgia Supreme Court, although 

why only to that court I am not sure, why not to Judge Pye's 

court in which this case would be tried in the first instance? 

However, v/e look to the Georgia courts and we tried their fidelity 

to'the Constitution, will th»y or will they not obey the Consti­

tution, and will they or will they not follow their court's 

decision.

A Third possible construction —

JUSTICE HARLAN: In trying in the state courts —

MR. AMSTERDAM; Under this construction of the statute;

you would have to try the possibility that that state court would 

come to an unconstitutional result. We are not asking this Court 

to do that. I am simply outlining the possible construction.

I have not come to the one we are urging.

The third possible construction splits the words



•47
34 "denied” and "cannot enforce" into two cases. And it says that

section 3.443 (.I) has the right to remove, a right to remove where 

one is denied a Federal civil right, and a right to remove where 

one cannot enforce a civil right. And it says that wherever 

the conduct for which the prosecution is brought is itself pro­

tected by a Federal substance guarantee which allows that conduct, 

that the very fact of the arrest and the commencement of the 

prosecution is a denial of the right, and that without reaching 

any question it cannot enforce the prosecution for removal.

This, I understand to be the government’s position in the Peacock 

case.

JUSTICE STEWART; That does involve handling a little 

punctuation, at least to make the argument there, doesn’t it?

MR. AMSTERDAM; Judge Sobeloff in the dissent in the 

Danville case did, I think, graphically illustrate by punctuation 

exactly how this would work. I myself don't ask the court to 

take that position, and I don’t because in my judgment the only 

justification for a removal jurisdiction at all is some 

feeling that the state courts cannot, will not, do not enforce 

certain kinds of Federal rights. And therefore, I hesitate 

to focus attention on the arrest process. I am much more concerned 

with process in the trial court.

I think I shall explain that why I think that notwith­

standing that our cases within the denial cannot enforce language.

Now, the fourth possible construction is that which we



43

urge in this case, that because of the inalienable tendency ■—  

and in speaking of this I da not speak of the Southern courts 

alone, I do not speak of the courts in Fulton County alone, I 

speak of the natural effect of a pending criminal prosecution 

on the kind of conduct which the prosecution is brought to punish, 

because of the general deterrent effect of a prosecution on con­

duct, we claim that the very dependency of the prosecution in a 

state court against a person for a Federally protected right is 

in itself a denial of that right, and a denial of the ability 

to enforce that right. Or to put it exactly in Mr. Sparks' 

claim, we do claim in this case that with respect to certain 

Federal rights, those few precious rights specified, that 

Congress has either hedged about as it did in the Civil Rights 

Act of 1964, with a special guarantee that no one should be 

coerced, intimidated, harassed cr punished for seeking to 

assert this right, and with some other rights that need not be 

reached in this case, the First Amendment rights involved in 

Peacock, that the very precious nature of those rights, and the 

supressing effect on them of prosecution, which this court 

has recognised in many cases over the years, is justification 

for a jurisdiction which doesn't insulate from prosecution persons 

who engage in that conduct.

Now, notice, when I say insulation from prosecution 

all is all it means is that the question of whether or not the 

prosecution shall gone on is to be tried in the Federal court 

in the first instance, and not in the state court, ind in reaching



49
the questions of construction which I have now laid out and 

explaining why I reach that result, I want to pass, if I may, 

from language to history --

JUSTICE FORTAS: Eefore you do that, why wouldn't the

pendency of the case in the Federal court have the same effect 

as it is pendency in the state court? Your proposition must 

be that that is because the affected community didn't believe 

that they would get a fair trial.

MR. AMSTERDAM: The pendency of the case in the state

court does have some effect. Let me answer that question in 

several different ways. First of all, the length of pendency 

is absolutely critical. If we compare, for example, the 

Mississippi Freedom Rider cases, the Freedom Rides were in 

May of 1961, and the Mississippi Supreme Court in a case that 

was clearly controlled by this court's prior decision affirmed 

in 1965 those convictions.

JUSTICE FORTAS: Again you are assuming —  again

you are making a comparative evaluation of the Federal and the 

state courts.

MR. AMSTERDAM: That is right.

JUSTICE FORTAS: And it comes back, it seems to me,

to the same proposition.

MR. AMSTERDAMs Mr. Justice Fortas, when you ask whether 

or not the pendency of the case in the Federal court was not re­

pressive in the same way as it was in the state court, my answer



50
is that as a matter of degree it is critically different- it is 

differently repressive, it is less repressive, because the 

probability that a Federal District Judge would have allowed —

JUSTICE FORTAS; I understand it is less repressive 

under the practical circumstance, but what I am trying to point 

out is that the reason that it is less repressive involves a 

judgement as to the fairness and the expedition or the lack thereof 

in the state court proceedings, so chat your proposition, no matter 

how you cut it, and no matter ho™ you phrase it, may come back 

to one of a prediction as to how the state courts will act. And 

that, of course —

MR, AMSTERDAM: The whole argument does indeed depend
on that.

Will you let me distinguish between two ways in vjhich 

that issue is critical. One is, if case by case the Federal 

court had to decide the probabilities in the state court, the 

other is the question whether Congress has not made the generic 

judgment about state courts in these cases which has ordered a 

Federal court, because of the increased probability of repression 

in the state, which is generic, to take these cases without 

inquiring case by case, instance by instance, whether or not the 

state courts will probably enforce the Federal rights. We do 

completely agree.

JUSTICE WHITE: But, Mr. Amsterdam, this also assumes

that there has been a prosecution for a Federally protected right.



51
Where do you suggest that X — 1 1 suppose you suggest that if 

somebody just alleges that the Federal right is being prosecuted 

in the state court,, that that question must be tried out,, that 

initial question must be tried out in the Federal court?

MR. AMSTERDAM; We are perfectly agreeable to that.

We believe that a Federal District Court, if a petition for a 

removal is contested on the facts, must try the issues alleged 

in the petition and denied in the answer, if a petition were filed 

under 1442(a) by a Federal Officer asserting "1 am a Federal 

officer", and the answer was, "You are not a Federal officer, 

you are a lav; professor", I would expect that the Federal 

District Court would try that issue.

JUSTICE WHITE; Or if the petition for removal is 

filed, and then the case is removed, and the motion for remand 

says, ,!Yes, hut these people were being violated in the 

restaurant."

MR. AMSTERDAM: Oh, there is no question that if the

OUSTICE WHITE: Then what happens in the Federal court?

MR. AMSTERDAM: In this case? Then what happens in

the Federal court? A hearing has to be held on the specific 

question —

JUSTICE WHITE: A jury trial?

MR. AMSTERDAM; Wo, no jury trial.

JUSTICE WHITE:

MR. AMSTERDAM:

Why not?

The question is a jurisdictional one



52

JUSTICE WHITE: Why not?

MR. AMSTERDAM: Because the question is whether or not

the court shall accept jurisdiction over the case.

JUSTICE WHITE: Yes, but aren't the facts really —  one

of the defenses is that —  one of the defenses of the defendant 

is that "I am protected by a Federal statute here."

MR. AMSTERDAM: Let me —

JUSTICE WHITE: Do you think you agree with the govern­

ment on this position or not, I mean on what happens in the 

Federal court on the motion for remand, do you think you have 

the same position as the government?

MR. AMSTERDAM: We differ from the government. We take

a somewhat narrower view of the right of removal, and therefore, 

we end up with a somewhat different view on what happens in the 

Federal court.

JUSTICE WHITE: But you would say that the judge alone

could have that hearing and make those factual determinations ard 

local conclusions or, the motion for remand?

MR. AMSTERDAM: Exactly. And let me explain why that

is so. If this case were tried in the state court I believe that 

the state judge, not the jury, would have to decide the human 

operation. Justice Clark asked whether there would be —

JUSTICE WHITE: But the jury would decide whether there

was a violation.

MR. AMSTERDAM: I believe if a motion to abate were



53

decided involving Barran and Lupper for the same reason as Jackson 

that a state judge is required to try a Federal Constitution, 

unless you have a confession that a state trial judge would be 

required to try without a jury the issue of whether or not the 

facts brought the case within Hamm and Lupper. 1 think that then 

a jury trial would have to be held on whether or not the state 

statute had been violated. And I point out that in the event 

that this case came to conviction in a stcite court, and was 

affirmed on appeal, that when a Federal habeas corpus petition 

was filed after a state trial a Federal district judge sitting 

without a jury would decide all over again, if the case had not 

been removed in advance of the trial, whether the peitioner’s 

conduct fell within the state statute and whether or not it 

fell within the protection of Hamm and Lupper.

JUSTICE WHITE: Unless —

MR. AMSTERDAM: Mr. Justice White, if I may, this

issue seems to be critical in the entire construction of the 

removal statute. The question — - as Mr. Sparks put it, 

the scope of Hamm and Lupper is a question of existence of Hamm 

and Lupper, because —  let me explain why we think Congress made: 

the judgment that those cases should be tried by a Federal judge, 

in a Federal court at the outset.

If this case is not decided against removal, let me 

hypothenize for a moment that the petitioner in this case —  

the respondent in this court, the petitioner in this case, Thomas



54

Rachel comes bo me, and says to me, "I would like to sit in in 

one of the few remaining segregated restaurants in Atlanta, or 

the many remaining segregated restaurants outside of Atlanta, 

can I do it."

What would I have to tell him? 7. would have to tell 

him, "Of course, 3 ou can do it. If the restaurant is covered 

by the Civil Rights Act of 1964 Congress has said in so many 

words, you have a right of equal access in the restaurant, and 

Congress has gone out of its v;ay to say that not only have 

you got that, but no person shall intimidate, threaten or coerce, 

or attempt to intimidate, threaten or coerce you in your right to 

exercise, and you shall not be punished or no person shall atter.pt 

to punish you." And I would be a pretty bad lawyer if I said this, 

because what I would tell him would be that if the restauranteur 

wanted to defy him service, he would not do it on the ground that

the restaurant was not covered by the Civil Rights Act any more,

he would do it precisely on the ground that there was some 

fcoistrousness, or he would deny it on the ground that Rachel when 

he came in was ill dressed, or that he was drunk, or that

he was ogling the waitress, or any one of a host of other grounds

which might give the restauranteur under the Georgia Statute a 

ri«ht to ®yclude him.

Now, on that question of fact depends the effective 

enforcement of this court's Hamm and Lupper decisions, and the 

effective enforcement of the Civil Rights Act of 1964. And we



55

suppose that a Federal District court was deemed by Congress 
to be a better forum, a more appropriate forum for the trial of 

this Federal issue them a state judge or a state jury. If I 

had to tell Thomas Rachel, in my hypothetical case, what he could 

expect in the event that the restauranteur defied him service 

on the ground that he was boistrous or ogling the waitress, I 

would tell him that what would happen is that he would go to 

trial —  this, Mr. Justice Fortas, comes back to the question of 

what in effect happened in a state court, but not a particular 

state court, state courts generally —  I would tell him that the 

risk that he runs when he is arrested is that bail would be set 

for him, as it was for one of the removal petitioners in this 

case, $7,000 for a misdemeanor. Now, it may well be that we 

can challenge that, \je can bring other proceedings, habeas corpus i 

in a state court, go to the highest state court, go into a 

Federal District Court to challenge bail, perhaps. In the 

meantime you may have spent a night or two ni">’ts in jail. But 

we can eventually challenge it, but we have to go through severed 

courts to challenge it. And then what will happen to you?

You will be brought to trial in a state court. And the Chief 

of police will be sitting right across from the prosecuting 

attorney and police officers will be wandering in and out of the 

courtroom. And how your witnesses will testify or how the 

ordinary Southern lawyer is going to try your case is going to 

be effectively influenced by the fact that the courtroom is right



56
across from the Chief of police, right across from the Mayor's 

office, and that the court — -

JUSTICE PORTAS: You are not trying to make a

generality with respect to defense lawyers are you?

MR. AMSTERDAM: The general attitude with respect to

defense lawyers —  and of all lawyers, and rightfully —  is 

grave deference to the court. And where the suspicions is 

that the court is hostile —

JUSTICE FORTAS: What bothers me, Mr. Amsterdam, is

that you say that Congress is in effect directed or established 

at the very lease a presumption that in all cases where a person 

is arrested in the course of Civil Rights activity, he should 

be tried by a Federal district court, is that what you said?

MR. AMSTERDAM: It is more than a presumption, it

is a conclusive presumption of law.

JUSTICE FORTAS: And that is your position?

MR. AMSTERDAM: That is it.

JUSTICE FORTAS: And then to establish that, don't you

have to tell us a little bit about 1443? That is the source 

of that, isn’t it?

MR. AMSTERDAM: I intend to get just there. And when

I spoke of history it was exactly in that sense that I meant that 

history it was illuminating and we think controlling in this 

case. I was merely pointing out why Congress should have made 

the judgment that we think it made. Nov/, to establish that it 

did make the judgment we have gone through the legislative history



57

of the statute we passed a hundred years ago this month which 

laid the foundation for removal of jurisdiction claimed in this 

case.

I ought to say that in connection with the legislative 

history we do not claim any more than we do with respect to the 

language that there is anything in there specifically which 

compels this court to the result we contend for. In the sense 

of any explanation of the statute on the floor of Congress or 

in supposition of the cases that would arise under it, the judi-' 

ciary provisions of the Civil Rights Act of 1866 were relatively 

undiscussed. The structure of the original statute is to 

create original jurisdiction as well as removal jurisdiction.

The only discussion of the provision at all was by Senator 

Trumbull, responsive to a criticism by President Johnson in his 

Veto, because the criticism was planted at only part of the 

injured, and the response was only part, and we find no illumina­

tion in the specific legislative history. But we find extra­

ordinary ellumination in a larger panorama of history here, 

because we think that if you go back and look at the history 

of use of the Federal judiciary to enforce Federal rights, 

which is what we are talking about in this particular instance, 

you find that the Reconstruction Period, the period in which 

this statute was enacted, was a watershed, that prior to the 

Reconstruction period that the Federal courts, albeit the 

Constitution gave it power to establish lower Federal courts, 

and lower Federal courts were very seldom used. It wasn’t a



58

general Federal questionof jurisdiction as we know it today, 

the great bulk of business which the Federal courts do today 

they were given in the five or six years following the Civil 

War.

Now, the second thing that I think stands out as one 

looks back at the historical panorama is that the principal 

concern of the Reconstruction Congress, which bulked up the juris­

diction of the Federal courts and gave them the protective 

jurisdiction which they have tcday, was the protection of the 

civil rights which were gained by the war, secured and assured 

substantively by the 13th, 14th, and 15th Amendments, and by 

the Civil Rights Act. Every Civil Rights Act, every one, had 

jurisdictional provisions which gave the Federal courts jurisdic­

tion .

Now, let's ta3ce a look for one moment at what that 

jurisdiction is. To start with, in cases without regard to 

amount, unlike general Federal courts of jurisdiction, the Federal 

courts have civil jurisdiction in all cases involving civil 

rights. They have it originally, they have it in equity, and 

they have it in law. They have the habeas corpus jurisdiction 

given by statute in 1867, whose clear purpose was to allow them 

to take from state custody persons in restraint by the state 

executive without state judicial process where their Federal 

rights were being violated. The federal courts should have very 

extensive Federal rights jurisdiction. Nov;, the question



59

arises, did not Congress —  would not Congress have foreseen 

that the major threat, perhaps, to the civil rights justice 

secured by the War would not come in civil cases, would not come 

solely in cases in which the state executive was acting, but would 

very often come in civil prosecution by the state, in which the 

freedmen and unionists would be sigled out? We know Congress 

knew this, because the debates which we have set out in 

pages 45 to 6 6 of this brief, if they mean anything, show that 

Congress knew that the state courts were hostile, and the state 

actions were being used to harass unionists and Negroes in the 

states. We ask, if Congress knew about that, wouldn't Congress 

have done something about that? And we conclude that they did.

We look in the first thing they did in Reconstruction, the pas­

sage of the Civil Rights Act of 1366. And that first thing 

they did allows removal of civil and criminal cases in three 

basic categories. The only one of them —  the third is in 

issue here, but the other two we think are very illuminating —  

the first of all, Federal officers, enforcing civil rights laws, 

whatever else Section 1443(2) means, it certainly means, and every­

body agrees, that a Federal officer, a unionist, who is enforc­

ing civil right act could remove one. He would not have to show 

case by case chat the state courts were unfair, he would not 

have to shov; that the state statute was unconstitutional on its 

face, the very fact that he was a Federal officer involved in 

civil rights enforcement would allow him to remove it.



60

Secondly, and I think it is extremely important, although 

we don't rely cn it specifically in this case, a state officer 

who refused to do an act on the ground that it would be inconsis­

tent with civil rights law is permitted to remove, a state officer 

he is not a person protected by Federal law, he is permitted to 

remove his case to a Federal court simply because the issue of 

his authority, which he refused to exercise, involves Federal 

civil rights lav/. He does not have to show that the state 

courts are not fair, he does not have to show that they will not 

sustain the Federal Constitution, he does not have to show that 

there is a state statute that is unconstitutional on its face, 

all he has to show is that he is a state officer being prosecuted 

for an act, or a failure to act in this case, which he says 

would conflict v/ith Federal lav/.

We ask,then, if these two classes of persons, Federal 

officers enforcing the law, and state officers who refuse to 

enforce it, or for that reason alone given a right to come into 

the Federal courts. Did not Congress mean, or would it not also 

have meant, to allow the very person protected by the amendment, 

and by the Federal Civil Rights Act, persons who v/ere denied 

their rights in a state court, to come into the Federal court 

on that ground alone? We believe that that is exactly what 

they meant by Section 1443(2).

Nov/, let me very carefully distinguish two kinds of 

cases, because here is where we get into the Rives line

as well.



61

46 We think that Congress was thinking about two situations.
First is the situation in which a state charge is brought

against someone for conduct in the exercise of a Federal 

civil right. Now, to take one of the civil rights of Section 1 

of the Civil Rights Act of 1866, we will take the right to 

possess property. Suppose that a Negro got a grant in fee of 

a piece of property, and a white man came and tried to throw 

him off it, tried to evict him forcibly on the ground that he 

could not hold property, and that the white man was entitled 

to the property. Ordinary state lav; would allow defense by force 

of ones habitation against an aggressor. And we have no doubt 

that that right of self-defense was protected by Section 1 of the 

Civil Rights Actor 1366. We think that in cases like that 

Congress made the conclusive presumption of law, that because 

Federal civil rights were involved in this case, because the 

potential for harassment of dragging these cases through the 

state courts internally -- the problems I raise here -- a 

potentially hostile state judge,'who will influence what lawyers 

do by his very presence, who will influence the way witnesses 

testify, who has enormous discretion on questionsof bail, who 

has enormous discretion on questions of timing, and when the 

case comes before the courts, how long it shall be held up —  

these cases are cases if —  in which we think Congress meant the 

case immediately to go into the District —  Federal District 

Court.

JUSTICE FORTAS: Mr. Amsterdam, let's take the same



62

case that you put. And let’s suppose that the Negro had invited 

the white man into his house,, just going along with these 

implausable assumptions as of that time. And let's assume that 

they had been having a quiet luncheon there, and then the 

Negro had pulled out a gun and killed the man for the purposes 

of robbing him. And then the state brought prosecution against 

him. Now, our problem under this statute, is what happens 

from that point on, that is to say, when you assure chat the —  

once you assume the characteristics of the conduct, you have 

solved a lot of problems. But our problem here is, how do you 

get to that kind of a judgment? Do you do it in state court 

or Federal court, and when? The answer may be in the fact that 

you make that assumption. But we are lawyers and judges, and we: 

have to confront the fact of how you make that. In every one 

of these cases, I assume, unless the states are going to dismiss 

them, the state will say that civil rights has no part in this, 

this was violence, or something of the sort. And on the other 

hand, the defendant in every one of these cases will say, I didn’t 

kick anybody, this was no violence involved, it was a violation 

of the civil rights. And as I see this effect —  and perhaps 

I am wrong —  but the critical and legal and judicial px-oblem is 

how, when, and where that threslihold decision is to be made, 

at least that is one of the problems.

MR. AMSTERDAM: Under our construction of the

statute it is to be made by a Federal judge after a removal



63
petition has been filed, and in the event that a remand motion 

challenging the factual allegations of the petition is filed.

We completely agree — - and this I think is also the anser in 

part to why I earlier responded to Mr. Justice White as I did —  

that the factual question is critical. But 1 think Congress meant 

precisely because of the power of the state court to find the 

fact against a Federal petitioner, and because of the inconvenience 

of litigating those issues in the state court, and the threat tc 

Federal rights —  if one who goes out to sit in a restaurant knows 

he is going to go to trial in a state court, we think that the 

how, when and where is in a Federal court on a motion to remand 

in advance of any trial.

JUSTICE BRENNAN; Ev a judge without a jury?

MR. AMSTERDAM: And by a judge without a jury.

JUSTICE BRENNAN; And if the judge determines that 

indeed there was violence, I take it that what he then must do 

is remand to the state court?

MR. AMSTERDAM: Remand to the state court for trial.

JUSTICE BRENNAN: But this is not —

JUSTICE WHITE: The alternative of that is that

defense is that you just have the whole trial in the Federal 

court, and the Federal defense is presented to the jury along 

with the factual basis for the Federal defense presented to the 

jury.

MR. AMSTERDAM: I understand this to be the government's

position in Peacock. What the government says is that —  and



64

verbally I think there is very good basis for this — - the govern 

ment seems to say, particularly under Subsection 2, chat the 

question of color of authority —

JUSTICE WHITE: The kind of a case you have in Rachel,

they are either talking specifically about the identification —  

MR. AMSTERDAM; I am sure that is right, where the case 

is within shooting distance of the constitutional —  the whole 

case comes into the Federal courts and you try it there —  

constitutional defenses, Federal defenses and the state lav; 

question all at once. We don’t think that that is what Congress 

meant.

New, we would be delighted to have that kind of an 

expansive reading of the statute. We didn't ask for it.

JUSTICE WHITE: I just think they talk this way just

about one specific kind of case, and that is your kind of a 

case. You are trying out the scope, the breadth of the Federal 

jurisdiction, because they think that there has been a denial 

automatically at the outset —  that the judge would try out 

whether or not —  for example, a prosecutor has applied the tres­

pass statutes because somebody is a Negro.

MR . AMSTERDAM: Well, I think that the only objection

that I have to characterising as narrow and limited to our 

case the government’s contention is that it would also apply 

beyond sit-ins to demonstration cases generally.

As T understand the government, it takes the position



65

that. Judge Friendly assumed in Galamison, that if the conduct 

is colorably protected by Federal law, then trial is had on the 

merits in the Federal court with a jury.

Wow, I understand the government's desire for that.

It comes from two things, as I understand it. One, a feeling 

that efficiency is served if a single trial is had instead of 

two trials.

JUSTICE BRENNANS You don't disagree with that?

MR. AMSTERDAM; We don't disagree with that. But we 

do disagree with some of the factual assumptions that underly 

it. And we also think that there are countervailing considerations 

to efficiency, one of which is that under our construction of 

the statute we can honestly say that no case is taken out cf the 

state court, in no case is the state court deprived of the power 

to proceed except in cases that should not be there in the first 

place. That is the virtue, I think, of our construction of the 

removal statute. The government construction of the removal 

statute allows the Federal mechanism to come into operation even 

in cases which can proceed to judge. Ours is very limited.

We think that the optimal balance to be struck between the use 

of the Federal courts to protect Federal rights and the necessity 

that state courts go on unimpeded in cases where Federal rights 

are not being denied simply calls for trying whether or not 

Federal protection does void the prosecution of the case.

JUSTICE WHITE; You are saying that under your construe-



6S

ticn you will never have a criminal trial in a Federal court?

MR. AMSTERDAM: I would agree with that.

JUSTICE WHITE: You will never have a guilty or not

guilty verdict in a Federal court, it is always —  the case will 

either be dismissed if it is found that the Federal right has 

been violated by the prosecution, or it will be remanded for 

trial in the state court?

MR. AMSTERDAM: That is exactly so. And that brings

me to what I think is the second consideration as it forms the 

government's point. Because certainly in terms of efficiency 

you can't quarrel with the efficiency of that. If one wants 

to talk about efficiency, you compare what happened in Selma, 

Alabama, for example, with the various other large demonstration 

episodes that have happened all over the country. Within three 

months after the Selma, Alabama demonstrations the three thousand 

prosecutions arising out of them were finished, terminated or 

ended. A Federal district judge on a motion to remand in a removal 

case found that all of those prosecutions were unfounded, that is 

to say, that the conduct on which they were based was protected 

by the Federal Constitution, and washed all of those cases out 

properly. Had it not been for that the cases would still be in 

a mill of trial and appeal, and we would have what we had in the 

Mississippi Freedom Rider cases, and other cases, of years for 

the vindication of rights.

JUSTICE WHITE: So what it is really is, Federal



67
habeas corpus before the trial?

MR. AMSTERDAM: It is exactly that. And there is nothing

anoinolous about ic. Because we think that even if this case were 

tried in a state court, as I said earlier, that the issue of 

Federal defense as distinguished from the issue of guilt would 

have to be tried by the judge and not the jury. We do not 

think that Federal constitutional defenses even .in a state court, 

are jury issues.

Nov/, the trial judge, just to make very specific what 

I mean, a trial judge to v/hom a motion to dismiss was submitted, 

either just before the verdict or just after verdict, in a case 

like Edwards versus South Carolina, for example, v/ould have to 

decide himself whether or not the fact as testified to by the 

police officers on the one side, and the demonstrators on the other 

showed Federal constitutional protection. Now, he could say 

to counsel, "Counsel, I am willing to go with what 12 good men 

and true say, and treat that as an advisory verdict." They have 

to decide the issue of guilt as to whether or not these people 

were obstructing the street, and that sort of thing, and that 

is the same factual question as the constitutional question.

JUSTICE WHITE: Do you think, Mr. Amsterdam, that if t.he

Federal judge himself, in some kind of a hearing on a motion, 

finds these facts and remands, and an appeal is taken, affirmed, 

and cert is dismissed, the case is remanded to the state courts, 

do you think the defense can be raised again?

MR. AMSTERDAM: On Federal habeas corpus or on a straight



68

trial?

JUSTICE WHITE: No, in a state court.

MR. AMSTERDAM: I have no doubt that it can be raised 

in the state court. And we have that position here.

JUSTICE WHITE: Even though the Federal Court has

already terminated it?

MR. AMSTERDAM: Sure, no question about that. If we

have that in the Federal system, we have a possible conviction in 

a Federal habeas corpus. And the reason for that is that the 

facts established in the state court may not be the same as those 

established in a Federal court. And if the state court wrongly 

applied Federal lav; to the facts found in a state court, that 

would be a Federal constitutional violation just as it is today. 

This court can reverse, as it did in Edwards versus South 

Carolina, a state court proceeding in which, on the facts —

JUSTICE WHITE: Then do you think that there can be

only one removal petition?

MR. AMSTERDAM: That raises a difficult question.

Ordinarily —

JUSTICE WHITE: I would think that would be completely

consistent with your position to say that there could be.

MR. AMSTERDAM: No, ordinarily there can be only

one removal petition.

The reason I boggled at that was simply that in this 

case —  and this is one of the issues that is pertinent whether or



not we are properly up here on appeal —  this was filed before 

the Civil Rights Act of 1964,- before we had any grounds on which 

to seek removal. And I think the first opportunity we have to 

raise the substantive claims here —  we could raise it again 

but only one petition could be filed. And I think that is not 

consistent at all with the position that if the case were remanded 

that the state court trial should be had on the facts of the Fede- 

reil Constitutional issue again. Today Federal habeas corpus 

will lie in order to give every litigant having a Federal claim 

one chance to cry his Federal issue before a Federal judge. It 

does not mean two chances. It does not mean that because one 

Federal habeas corpus petition can be filed, or two can be, or 

three can be, it only means that he has a right to have a Federal 

Court find the fact. But he a3.so has the right to have a state 

court apply Federal law right on facts found in the state cn 

proceeding. So I do not believe that if a Federal court remands 

after finding that there is no constitutional protection that he 

is deprives of the opportunities of raising the Federal issue.

New facts may turn up at the hearing of the state court. It may 

well be that a state officer testifies somewhat differently 

than he did in a Federal court. And at that time he has a right, 

to say rto the state judge, on the testimony which you have 

just heard, "Your Honor, the Federal Constitution has been 

violated in this 3tate, and we invoke it." And we think 

the state court is obligated to entertain that Federal constitu­

tional defense.



70

THE CHIEF JUSTICE: Mr. Axnsterday, under your theory,

what facts must be alleged in the petition for removal?

MR. AMSTERDAM: Let roe answer that by specific reference.

But I would say one thing before I do. Mr. Justice Fortas asked 

earlier whether or not —

THE CHIEF JUSTICE: Let's stay with this question.

Suppose you answer my question, please.

MR. AMSTERDAM: Right. The allegation on page 2 of the

removal petition •—  and this is axampliary, this is the one 

group of petitioners, but it is exemplary as to the others —  

is that the petitioners sought to obtain service, food, 

entertainment and comfort at Leb's Restaurant, a restaurant 

open to the general publis 66 Luckie Street, Atlanta, Georgia.

The further allegation is that they were arrested on this occasion 

for the sole purpose —  and this is on page 1 —  "Of aiding, 

abetting and perpetrating customs and uses having historice.l 

and psychological roots with respect to serving and selling 

members of the Negro race in places of public accommodation and 

convenience on a racially discriminatory basis, and upon terms 

and conditions not imposed on members of the so-called white 

or Caucasian race."

It is further alleged on page 4 of the record conclusive­

ly that the petitioners are being prosecuted for acts done under 

color of authority derived from the Constitution and laws of the

United States.



71

Now, that is a characterization of the earlier allega­

tion, which is that having entered restaurants with described 

addresses, and restaurants which it is alleged were open to the 

public, they were refused service on a ricially discriminatory 

basis.

Now, we have no doubt that looked at under the Civil 

Rights Act of 1964, this is a sufficient allegation although *—

THE CHIEF JUSTICE: Aren't both of those allegations

conclusive?

MR- AMSTERDAM: Oh, no. One could not make more specific

allegations of fact on two issues. As we understand it, there 

are three issues which have to be shown to demonstrate that 

Hamm and Lupper applies.

One, that there is a restraurant involved. Two, that 

it is covered by the Civil Rights Act of 1964.

And three, that service was refused cn racial grounds.

The allegation that it is a restaurant, Leb's- proprietary 

restaurant open to the general public on 6 6 Luckie Street, it is 

impossible to allege that in greater factual detail.

The allegation that service was refused on racial

grounds.

The allegation that these people were seeking service 

and they are arrested for doing that pursuant to a deep-seated 

custom., et cetera, of racial discrimination in public service.

Again, you could not allege in more detail as a matter

of fact.



Nov;, the only question —  and this is the only one —  

on which the petition is deficient is in specifically alleging 

coverage under the Civil Rights Act of 1964. I think that is a 

paper issue, because I don't think that in this court Georgia has,

I don't think it could, I don’t think it will, state that Let's 

or Davis House No. 3 in the heart of Atlanta Georgia, are not 

covered by the Civil Rights Act of 1964. But we think that 

even if they did the factual allegations are quite sufficient, 

the factual allegations of 66 Lucky Street.

JUSTICE FORTAS: What has the Civil Rights Act of 1964 

got to do with this case? That is what baffles me. The 1964 

Act was passed after these arrests, wasn’t it?

MR. AMSTERDAM: Yes.

JUSTICE FORTASs How do you bridge those tv/o, Mr.

Amsterdam?

MR. AMSTERDAM: Hamm and Lupper have already bridged them

JUSTICE FORTASs I understand that. But you are 

relying on rights, as I understand you, granted by the 1964 

Act as relating back to an arrest which was made prior to the 

1964 Act. That is not related to Hamm and Lupper.

MR. AMSTERDAMs Well, if Hamm and Lupper protected 

prosecutions on the theory, as I understand it, if this is your 

Honors question, that once the 1964 Act was passed, from that 

point on it constituted a punishment or harassment under 202, 

the continuing prosecution, but that it did not necessarily



73

invalidate state arrests prior to that., I would go along with 

Your Honors on that.

JUSTICE FORTAS: I am asking you about the technical

problem that we have to face up to here, the chronology of this 

situation.

MR. AMSTERDAM: I have no complaint with that. And this

is one of the reasons, I may add, why I put less stress on the 

notion that they were denied their rights by the arrest, and that 

they cannot enforce them in the state proceeding which now 

exists. But what we have here is a proceeding which on July 2, 

1964, at the time of the passage of the Act, was pending. At that 

point the Civil Rights Act of 1964 became applicable. The 

Federal court which had the cases at that time was authorised 

to remand the proceedings, or to maintain jurisdiction.

JUSTICE FORTAS: I understand your procedural

argument, whether I agree with it or not. But you still have 

the problem of relating the incidents here to the statute without 

the benefit of a Civil Rights Act. Separating out the question 

of remand jurisdiction, and the eligibility of that remedy, 

you still have the problem,it seems to me, of relating the 

defense here to 1443. And you can't do it —  perhaps you cannot 

do it by reliance on the* Civil Rights Act. That is a question 

which I think both the Chief Justice and I have been trying to 

solicit your assistance on.

MR. AMSTERDAM: Well, let me see if this is a satisfac­

tory way of doing it. Because this seems to me an approach which



74

one necessarily need follow. The complaint we made of the 

state prosecution in this case is that it itself is constitu­

tional, and not the arrest, but the prosecution, constitutes an 

.intimidation and a threat, coercion, punishment, or an attempt 

to punish, in the language of Hamm and Lupper, these three Civil. 

Right Act of 1364 demonstrations, sit-ins.

Now, we say that as of July 2, 1964 it became im­

permissible for the state to maintain prosecutions whose effect 

was to harass and intimidate, coerce, punish, the persons for 

the exercise of the right, or for seeking —  I won't put it in 

terms of exercising the right, there was no right then —  but the 

statute says, and this court held in Ilamm and Lupper, that the 

state cannot now punish pre-act conduct which was simply 

sitting in a restaurant seeking service. We think that at 

that point a Federal court had — - which had the case is called 

upon, just as this Court called on all state courts which had 

these cases, to look at the case and decide whether the case is 

indeed a punishment and harassment, et cetera. If it is, we 

believe that that in effect calls into effect the removal 

statute which is intended to give: Federal jurisdiction to

decide such a question. We do not for that purpose have to rely 

on the principle that arrests were illegal at the time made, 

although if necessary we adhere to arguments previously made 

in this court prior to Hamm and Lupper, we think that the court 

need not reach that the Constitution protected the conduct alleged



75

62 in this case, as well as the Civil Rights Act of 1964.

JUSTICE FORTAS: I think we got started on this in

response to Mr. Justice Harlan's question sometime ago. You 

said you were not relying on this as a constitutional right for 

the purposes of this case. So we will start looking for some other 

source of the right. If the Court should come to the conclusion 

that the Civil Rights Act of 1964 does not void prosecutions in 

this case, or is not invocable as a basis of Federal jurisdiction, 

then we indeed have a question here as we have in the Peaceck 

case, except that we have an additional and substantive question, 

one left open in Bell and other cases, as to whether or not the 

conduct here alleged is indeed protected by the Constitution.

JUSTICE BLACK: Mr. Amsterdam, have there been any

effort to remove cases of defendants who were arrested in 

California during the Watts episode? Have there been any efforts 

yet to remove those cases to the Federal courts? You have said 

that all that it is necessary to do is charge in order to have 

them filed in the Federal courts.

MR. AMSTERDAM: I don't purport to speak with authority

on what in fact was done at Watts. My recollection is that no 

attempt was made to remove any of those cases to the Federal 

courts.

JUSTICE BLACK: What about in New York, have there

been any up there?

MR. AMSTERDAM: Yes, indeed.

JUSTICE BLACK: Have they removed any?



76

S3 MR. AMSTERDAM; The Galamison opinion in the Second

Circuit effectively barred removal of cases under the various 

theories put forth in the present cases in the Second Circuit. 

However, there has generally been attempts to remove —  in the 

Hutchinson case, for example, stays have been given, and there 

are cases pending in the Second Circuit, yes.

JUSTICE BLACK; This lav/ that you are arguing now does 

not apply just to some states, it applies to all?

MR. AMSTERDAM; It certainly does. And it is quite un­

like in that regard the temporary Freedmen's Act which, gave 

general Federal jurisdiction to military tribunals, but this 

one v/as intended to be forever, and it was intended to be in 

all states forever, and our argument does not rest, as I have 

said, on this court’s finding or any Federal District Court's ' 

finding that the Superior Court of Fulton County, Georgia is 

unfair, or biased, or that the state courts in Mississippi are 

unfair or biased, or that the state courts throughout the South 

are unfair or biased. We claim Congress has made the judgment 

about state courts generally that just as in a diversity of cases, 

the rights of the Federal claimants need a Federal judge to 

protect them, and that from the outset, in cases involving 

civil rights, criminal cases, in which civil rights defenses 

are presented and can be sustained on the facts in front of the 

Federal judge, the case should be tried in front of the Federal 

judge, and not in front of the state judge, in New York, in



77

64 California, or in Fulton County, Georgia.

JUSTICE BLACK: I asked you that question because: I

gathered from your argument, I understand that in any case, 

criminal or civil, a colored man anywhere in the United States the 

question can be raised or removal if an affidavit is made that 

it involves prejudice against him on account of his color, and that 

then requires the Federal judge to pass on the fact as to 

whether that is true or not.

MR. AMSTERDAM: No, my argument does not begin to

go to that question, because the only case in which I seek to 

sustain removal jurisdiction is the case in which the affidavit 

to verify removal petition asserts that he is being prejudiced 

on account of color, or that the jury is prejudiced or the judge 

is prejudiced.

JUSTICE BLACK: That is what I meant.

MR. AMSTERDAM: No, our argument would not allow

removal in those cases.

JUSTICE BLACK: It would not allow removal, but it

would be a reason for the court who has to pass to it, when 

any prosecution takes place against any person in any state on 

account of color.

MR. AMSTERDAM: That is absolutely true, but it does 

not happen to have anything to do with my argument or how the 

Court decides this case.

JUSTICE BLACK: it does have something to do with how



73

65 we decide it.
MR. AMSTERDAM: But if a removal is filed the state

proceeding stops. Now, no matter what you say about it, a lawyer 

can always file that paper if he is going to be dishonest. J think 

the only way in which this court can protect -—

JUSTICE BLACK: He might be dishonest. I would not

assume that he would be dishonest.

MR. AMSTERDAM: The real risk, it seems to me, of

interruption of state court process that flows in the removal 

of jurisdiction is two separate risks. One, that the 

removal jurisdiction will be in fact broader than it ought to be. 

And the cases which should not be brought into the Federal 

court will be brought there and will stay there.

The second one is the risk that the jurisdiction will 

be abused because counsel will file frivolous papers that will 

take it into the Federal court.

In your hypothetical case, Mr. Justice Black, I 

would not sustain removal. And so the first question, whether 

or not the Federal courts have taken jurisdiction announced to the 

state court in a case which they should not is not in the case.

In the second one, in which counsel are filing wrongly, it may 

be either because of a mistake of law, or because they are abusing 

the process. A clear decision about this court as to the scope 

of 1443 will end, I think, such mistakes of law. As to abuse by 

counsel, that is inherent, or it potentially is inherent, whether



79

66 you stick v/ith the Rives-Powers —

JUSTICE BLACK; I was not talking about abuse. There 

are many cases where those things could be represented, murder 

cases and many other cases.

MR. AMSTERDAM; But they are not removal under our 

theory, our theory allows removal —

JUSTICE BLACK; They would be removable, would 

they not, if the allegation was made under oath, as you say, that 

the Court was prejudiced against them, there was discrimination 

against them, that they could not get a fair trial because of 

their color.

MR. AMSTERDAM: Our theory of removal would not

authorize removal in that case.

JUSTICE WHITE; Aren't you up here just saying that 

when the conduct for which the defendant is being prosecuted in 

the state court is itself permitted, expressly permitted by 

Federal lav;?

MR. AMSTERDAM; Exactly. That is the only case in 

which we are arguing for removal, the case where a fellow is 

a Negro can't get a fair trial, that is immaterial.

JUSTICE WHITE; This is not the kind of a case in which 

you are claiming that you won't get a fair trial, or that he 

is being discriminated against, it is that the express conduct 

that is permitted by Federal law is now being prosecuted in the

state court?



80

MR. AMSTERDAM: Exactly. Those cases are being

covered by Rives-Fowers, and we do not ask for this consideration 

here, we do not need to reach this case, and we do not ask 

for it.

THE CHIEF JUSTICE: We will adjourn now.

(Whereupon, at 12:00 o'clock noon, the argument was

concluded.)