Faubus v. Aaron Motion to Affirm

    Supreme ©mitt at %  United States
October Term, 1959 

No. 458

Orval E. F aubus, Governor of the State of Arkansas,

Appellant,

J ohn A aron, et al.,
Appellees.

No. 471

A rkansas State B oard of E ducation, and A rch W. F ord, 
Commissioner of Education,

Appellants,

J ohn A aron, et al.,
Appellees.

appeals from the united states district court for the
EASTERN  DISTRICT OF A R K A N SA S, W ESTE R N  DIVISION

MOTION TO AFFIRM

W iley A. B ranton 
T hurgood Marshall

Attorneys for Appellees

E lwood H. Chisolm 
Of Counsel



£uprruu' (Enurt nf %  United States
October Term, 1959 

No. 458

Obval E. Faubus, Governor of the State of Arkansas,

Appellant,

J ohn A aron, et al.,
Appellees.

No. 471

A rkansas State B oard of E ducation, and A rch W. F ord, 
Commissioner of Education,

Appellants,

J ohn A aron, et al.,
Appellees.

MOTION TO AFFIRM

Appellees in the above-entitled cases move to affirm on 
the ground that the questions presented are so unsubstantial 
as not to need further argument.

Questions Presented

Appellees, for the purposes of this motion, adopt the 
“ Questions” as presented by appellant in No. 458 at pages 
4-5 of his Jurisdictional Statement and by appellants in 
No. 471 at page 3 of their Statement as to Jurisdiction.



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Statement of the Case

The appeals in this case involve the constitutionality of 
the two Arkansas school closing laws which were adopted 
at a special session of the legislature following the decision 
of the Court of Appeals in Aaron v. Cooper, 243 F. 2d 361, 
signed into law by the Governor of Arkansas on the day 
this Court decided Cooper v. Aaron, 358 U. S. 1, and, there­
after, on that same day, set in operation by the Governor’s 
promulgation of a Proclamation closing all of the senior 
high schools in Little Eock.

The complete history of this litigation from its inception 
plus a statement of the proceedings giving rise to these 
appeals, as well as the undisputed facts there adduced, are 
set out in the per curiam opinion below. 173 F. Supp. 944.

Reasons for Granting the Motion

1. The questions presented on the instant appeals in the 
Little Rock litigation put in issue another attempt of state 
officials to “war against the Constitution.” Earlier efforts 
to do so by means of gubernatorial, judicial and adminis­
trative action could not be squared with the mandate of 
the Federal Constitution. Faubus v. United States, 254 
F. 2d 797, cert, denied 358 IT. S. 829; Thomason v. Cooper, 
254 F. 2d 808; Cooper v. Aaron, 358 U. S. 1. The case at 
bar merely concerns an attempt to achieve the forbidden 
end by legislative action. Thus, the case has nothing else 
to distinguish it and the decision by the court below is cor­
rect. See Cooper v. Aaron, 358 U. S. 1, 16-19; Aaron v. 
Cooper, 261 F. 2d 97, 99-102, 108; James v. Almond, 170 
F. Supp. 331 (E. D. Va. 1959); Harrison v. Day, 200 Va. 
439, 106 S. E. 2d 636 (1959). Cf. James v. Duckworth, 170 
F. Supp. 342, 346-347 (E. D. Va. 1959), affirmed Duckworth



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v. James, 267 F. 2d 224 (4th Cir. 1959), cert, denied 28 
U. S. L. Week 3110 (October 13, 1959) (No. 286).

2. Moreover, the issue raised by appellants is “ too 
moribund” for full hearing. Over a century before this 
Court in Cooper v. Aaron admonished state officials not 
to essay nullification by legislation—either “ openly and 
directly” or “ indirectly . . . through evasive schemes”— 
Justice Clifford, speaking for the Court in Biggs v. John­
son County, 6 Wall. 166, said at page 195:

Repeated decisions of this court have also deter­
mined that state laws, whether general or enacted for 
the particular case, cannot in any manner limit or 
affect the operation of process or proceedings in the 
Federal Courts. U. 8 . v. Peters, 5 Cranch, 136.

The Constitution itself becomes a mockery, say the 
court in that case, if the state legislature may at will 
annul the judgments of the Federal courts, and the 
nation is deprived of the means of enforcing its own 
laws by the instrumentality of its own tribunals. Slo­
cum v. Mayberry, 2 Wheat. 9; Beers v. Haughton, 9 
Pet. 359.

3. Finally, there is no substantial merit to appellants’ 
positions with respect to judgment below with respect to 
Act 5, as amended by Act 151. In No. 458 appellant asserts 
that the decision of the Supreme Court of Arkansas in 
Fitzhugh v. Ford, 323 S. W. 2d 559, is involved (Appel­
lant’s Brief, p. 4) and, subsequently, argues that it should 
control the disposition of this appeal {ibid., pp. 18-20). 
However, the state Supreme Court “ did not consider 
whether [Act No. 5] violated any part of the Constitution 
of the United States.” 173 F. Supp. 944, 951. See Appel­
lants’ Brief, page 4. Furthermore, although appellant 
made no suggestion of this, the construction given Act 5



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in Fitshugh v. Ford was one which neither precluded nor 
avoided decision on the constitutionality of Act 5 by the 
court below.

In No. 471 appellants ask this Court to consider the 
effect of Act 466, an amendment to Act 5 “ in effect shortly 
before the decision of the lower court,” which was “ ap­
parently not considered” (Appellants’ Brief, p. 2). In 
addition, they indicate that “ in [their] brief, a reference 
to Act 5, as amended, refers to the Act, as amended by 
Acts 151 and 466, Ark. Acts of 1959” (id.). Thereafter, the 
case they make for full hearing rests—principally, if not 
exclusively— on the application of Act 466 (see Appellants’ 
Brief, pp. 4-7). But elsewhere appellants explain that “ Act 
5, as amended, merely authorizes the State Board of Edu­
cation to withhold funds from schools which have been 
closed by the Governor under Act 4,” and admit that “After 
Act 466 became effective, the funds could be withheld as 
before but could not be paid to another district except 
where a school had been closed by the order of the Gov­
ernor . . . ” (ibid., p. 4).

Thus, here as in Texas Co. v. Brown, 258 U. S. 466, a 
case cited by appellants to support this Court’s considera­
tion of Act 466, no case is shown for the application of this 
Act. Bather, as the Court concluded in that case at page 
483: “ It is conceded that this does not repeal or affect 
the [instant] laws, and no argument is rested upon it 
except in support of contentions already disposed of.”



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CONCLUSION

For the foregoing reasons the questions presented 
by appellants are clearly unsubstantial and this motion 
to affirm should be granted.

Respectfully submitted,

W iley A. Branton
119 East Barraque Street 
Pine Bluff, Arkansas

T hurgood Marshall 
10 Columbus Circle 
New York 19, New York

Attorneys for Appellees

Elwood H. Chisolm 
Of Counsel