Faubus v. United States Brief Amicus Curiae in Opposition

    Form No. G -26  
(Ed. 9 -1 3 -5 5 )

IN TH E S U P R E M E  C O U R T  O F TH E U N ITED  S T A T E S  

O C T O B E R  T E R M , 195 *

oaVAL fAUBVS, Governor o f  
i, et * 1 .,

Petitioners*

v s .

UNI IT,.' STATES ( arnicas curiae* and 
JN3MN AAS3H* et * 1 .)

No. i l l

The S o lic ito r  G en era l 
D ep a rtm en t o f  J u stice  
W ash in gton  25, D . C .

S e r v ic e  o f c o p ie s  o f  sa ra s  ana fKfi W f i n

- J S X & B S .  AMICUS CUMIAfi, IN O W M ItM l___

is  a ck n ow led g ed  th is day o f , 1 9 5 *  .

a - rr&aton W aiter L . Pope

Thurgood darsfcali a .  t .  W attMws

Cgittsel for kespondeuta. y&oemm

Counsel fm  Petitioners.



No. 212

J n  the S u p re m e  flfmtrt # f  the S u ite d  s t a t e s
October Teem, 1958

Orval E. Eaubus, Governor of A rkansas, et al.,
PETITIONERS

' ' . ' V.

United States of A merica, A mices Curiae, and 
J ohn A aron, et al.

ON PETITION EON, A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES, AMICUS CURIAE, 
IN  OPPOSITION

,  - -  ' -  C' ■■ . , . .V ; ,
J. L E E  R A N K IN ,

Solicitor General, 
G EORGE CO C H R A N  DOUB,

Assistant Attorney General, 
M O RTON  H O L L A N D E R ,
S E Y M O U R  F A R B E R ,

Attorneys,
Department of Justice, Washington 25, D. C.

——



I N D E X

Pase

Opinions below------------------------  : 1
Jurisdiction______________________________________________  1
Questions presented______________________________________ 2
Statute involved_________________________________________ , 2
Statement_______________________________________________  3

Preparation for carrying out the plan------------------------  4
The placing of the Arkansas National Guard at Cen­

tral High School_______________________________ —  5
The appearance of the United States as amicus curiae_ 6
The filing of the affidavit of bias and prejudice---------- 8

Argument_______________________________________________— 11
Conclusion_______________________________________________ 22

CITATIONS
Cases:

Aaron v. Cooper, Civil Action No. 3113 (E. D. Ark.),
certiorari denied, June 30, 1958------------------------------  4

Aaron v. Cooper, 243 F. 2d 361---------------------------------- 4
A. B. Dick Co. v. Marr, 197 F. 2d 498, certiorari

denied, 344 U. S. 878-------------------------------------------------  19
Berger v. United States, 255 U. S. 22--------------------------  16
Bishop v. United States, 16 F. 2d 410------------------------- 13
Bommarito v. United States, 61 F. 2d 355------------------------  13
Booth v. Fletcher, 101 F. 2d 676, certiorari denied, 307

U. S. 628____________________________________________ 19
Bowles v. United States, 50 F. 2d 848, certiorari denied,

284 U. S. 648_______- ___________________________ 13
Brown v. Board oj Education, 347 U. S. 483--------------- 3
Chqfin v. United States, 5 F. 2d 592, certiorari denied,

269 U. S. 552________________________________________ 13
Craven v. United States, 22 F. 2d 605, certiorari

denied, 276 U. S. 627________________________________  15
Dugas v. American Surety Co., 300 U. S. 414------------  20
Exchange, The, 7 Cr. 116_ _____________________________  18
476557— 58—— 1 (I)



II

Cases—Continued Pago
Helmbright v. John A. Gebelein, Inc., 19 F. Supp. 621 19
Henry v. Speer, 201 Fed. 869------------------------------------- 16
Hibdon v. United States, 213 F. 2d 869----------------------- 14
Julian v. Central Trust Company, 193 U. S. 93----------  20
Kasper v. Brittain, 245 F. 2d 97, certiorari denied, 355

U. S. 834_________________________________________  19,21
Kern River Company v. United States, 257 U. S. 147 20
Lipscomb v. United States, 33 F. 2d 33-----------------------  13
Lisman, In re, 89 F. 2d 898--------------------------------------  16
Littleton -v. DeLashmutt, 188 F. 2d 973-----------------------  16
Local Loan Co. v. Hunt, 292 U. S. 234-----------------------  20
New York v. New Jersey, 256 U. S. 296---------------------  20
Palmer v. United States, 249 F. 2d 8 --------------------------  16
Price v. Johnston, 125 F. 2d 806, certiorari denied, 316

U. S. 677_________________________________________  15
Root Refining Co. v. Universal Oil Products Co., 169

F. 2d 514, certiorari denied, 335 U. S. 912-------------- 18
Rossi v. United States, 16 F. 2d 712---------------------------  13
Sanitary District v. United States, 266 U. S. 405--------  20
Scott v. Beams, 122 F. 2d 777, certiorari denied, 315

U. S. 809_________________________________________  15
Securities and Exchange Commission v. United States

Realty <& Improvement Co., 310 U. S. 434---------------- 18
Steelman v. All Continent Co., 301 U. S. 278--------------  20
United States v. Calijornia, 332 U. S. 19--------------------  20
United States v. Gilbert, 29 F. Supp. 507---------------------- 15
United States v. Onan, 190 F. 2d 1----------------------------- 15
United States v. United Aline Workers of America, 330

U. S. 258_________________________________________  21
United States Realty & Improvement Co., In re, 108

F. 2d 794_________________________________________  18
Universal Oil Products Co. v. Root Refining Co., 328

U. S. 575_________________________________________  15, 17
Constitution and Statutes:

Constitution of the United States, Article II I ------------  20
5U . S. C. 309_______________________________________  19
5U . S. C. 316_______________________________________  19
28 U. S. C. 144____________________________________ 2,8, 11
28 U. S. C. 1651_____________________________________ 20
28 U. S. C. 2284_____________________________________ 9
Arkansas Statutes, 1947 (1956 Replacement), 12-712. 13



Kn to  Supreme aj-ottri of to  Knitt& jStsies
October Term, 1958'

No. 212

Orval E. F aubus, Governor of A rkansas, et al.,
PETITIONEES

V.

U nited States of A merica, A micus Curiae, and 
J ohn A aron, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES, AMICUS CURIAE, 
IN  OPPOSITION

O PIN IO N S B E L O W

The findings of fact, conclusions of law, and order 
of the United States District Court for the Eastern 
District of Arkansas (R. 65-74) are reported as 
Aaron v. Cooper, 156 P. Supp. 220. The opinion of 
the United States Court of Appeals for the Eighth 
Circuit (Pet. App. la-21a) is reported at 254 E. 2d 
797.

JU R IS D IC T IO N

The judgment of the United States Court of Ap­
peals for the Eighth Circuit was entered on April 28,

(i)



2

1958 (R. 102). The petition for a writ of certiorari 
was filed on July 24, 1958. The jurisdiction of this 
Court is invoked under 28 U. S. C. 1254 (1).

QUESTIONS P R E SE N T E D

1. Whether both courts below correctly held that the 
particular facts of this ease showed that there was 
undue delay in the filing of petitioner Faubus’ affi­
davit of bias and prejudice against the district judge.

2. Whether, wholly apart from the question of 
undue delay, the affidavit of bias was correctly stricken 
because of legal insufficiency.

3. Whether the district court erred in refusing to 
dismiss the amicus petition of the United States.

S T A T U T E  IN V O L V E D

28 U. S. C. 144 provides:
Whenever a party to any proceeding in a 

district court makes and files a timely and 
sufficient affidavit that the judge before whom 
the matter is pending has a personal bias or 
prejudice either against him or in favor of any 
adverse party, such judge shall proceed no fur­
ther therein, but another judge shall be as­
signed to hear such proceeding.

The affidavit shall state the facts and the 
reasons for the belief that bias or prejudice 
exists, and shall be filed not less than ten days 
before the beginning of the term at which the 
proceeding is to be heard, or good cause shall 
be shown for failure to file it within such time. 
A party may file only one such affidavit in any 
case. It shall be accompanied by a certificate 
of counsel of record stating that it is made in 
good faith.



3

S T A T E M E N T

A brief summary of the prior proceedings in Aaron 
v. Cooper may be helpful to the Court. The action 
was brought originally on February 8, 1956, by cer­
tain Negro school children in Little Rock, Arkansas, 
to enjoin officials of the Little Rock School District 
from operating the public school system in a manner 
which allegedly discriminated against them because of 
race (143 F. Supp. 855 (E. D. A rk.)). In answering 
the complaint, the School District submitted to the 
court a gradual three-phase plan of school desegrega­
tion, which was scheduled to be put into effect in the 
fall of 1957, and which was designed to accomplish 
complete desegregation of the schools not later than 
1963. The first phase of the plan, which was to begin 
in the fall of 1957, was to commence desegregation at 
the senior high school level. The second phase was to 
begin at the junior high school level, following suc­
cessful desegregation of the senior high school level 
(estimated at two to three years). The third phase 
was to be at the elementary school level, following 
completion of the first two phases (R. 66).

On August 28, 1956, the district court, after a full 
hearing, concluded that the School District had acted 
in good faith, and that the Little Rock plan of gradual 
school desegregation was in accord with this Court’s 
mandate in Brown v. Board of Education, 347 II. S. 
483. The court thereupon denied the Negro school 
children’s request for injunctive relief, but specifically 
retained jurisdiction of the case ‘ ‘ for the entry of such 
other and further orders as may be necessary to obtain 
the effectuation of the plan”  (143 F. Supp. at 866;



4

R. 68). In affirming the judgment of the district 
court, and in approving the Little Rock school plan 
as “ in present compliance with the law” , the Court of 
Appeals expressly noted that the district court was to 
retain jurisdiction to ensure compliance with the plan. 
Aaron v. Cooper, 243 P. 2d 361, 364 (C. A. 8 ) !  No 
review of the judgment of affirmance was sought here.

Preparation for carrying out the plan: The district 
court’s findings of fact (R. 65-72) are not disputed, 
and may be summarized as follows: As provided in 
the court-approved plan, desegregation was to com­
mence in the fall of 1957 at the senior high school 
level. Approximately forty to fifty Negro students 
had applied for admission to Central High School. 
Their applications had been carefully studied by the 
responsible school authorities, and it was finally de­
termined that thirteen of these students were partic­
ularly suited to make the adjustment involved in 
attending a school theretofore composed solely of 
white children. All steps necessary for the enroll­
ment of these thirteen students in Central High 
School, including meetings with the students and their 
parents to prepare them for the necessary adjustment, 
were completed by the school authorities before the 
opening of the 1957 fall term. Pour of the thirteen 
students chose not to transfer to Central High School. 
Thus, under the school plan for that term, there would 1

1 The district court, on June 20, 1958, ordered the suspension 
o f the plan until mid-semester o f the 1960-61 semester. Aaron 
v. Cooper, Civil Action No. 3118 (E. D. Ark.), cei'tiorari denied, 
June 30, 1958. The Court o f Appeals for the Eighth Circuit 
reversed this order on August 18, 1958.



be but nine Negro students in a student body of ap­
proximately 2,000. Both the faculty and the student 
body were prepared to accept the nine Negro students 
(R. 68-69).

The placing of the Arkansas National Guard at 
Central High School: On September 2, 1957, peti­
tioner Faubus, Governor of Arkansas, caused units 
of the Arkansas National Guard, under the command 
of petitioners Clinger and Johnson,2 to be stationed 
at Central High School with orders “ to place off 
limits to colored students those schools theretofore 
operated and recently set up for white students * * *”  
(R. 69).

Up to this time no crowds had gathered about the 
school, nor had there occurred any threats or acts of 
violence. The Mayor and Chief of Police at Little 
Rock had, however, out of an abundance of caution, 
conferred with the school authorities about taking 
appropriate steps by the police to prevent any pos­
sible disturbances or acts of violence. The Mayor, 
the Chief of Police, and the school authorities made 
no request to the Governor to assist in maintaining 
order at the school; and neither the Governor nor 
any State official consulted with the Little Rock au­
thorities about whether the city police were prepared 
to cope with any incidents which might arise or 
whether there was any need of State assistance in 
maintaining order (R. 70).

2 General Clinger is Adjutant General o f the Arkansas Na­
tional Guard. Colonel Johnson is a Unit Commander of the 
Guard.



6

The fall term at Central High School began on 
September 3,1957, but none of the nine eligible Negro 
students appeared at the school that day, having been 
advised not to do so since the National Guard was 
stationed at the school (R. 70). On that day, the 
district court, after a hearing on a rule to show cause 
issued against the school authorities, found that they 
had, as a consequence of the stationing of military 
guards at the school, requested the Negro students 
not to attend school. The court further found that 
there was no reason why the desegregation plan could 
not be carried out and, accordingly, directed the school 
authorities to integrate forthwith the senior high 
school grades, in accordance with the previously ap­
proved plan (R. 1-3, 71).

The next day, September 4, units of the Guard, 
acting pursuant to petitioner Faubus ’ order, forcibly 
prevented the nine Negro students from entering the 
school grounds. At that time a crowd of spectators 
congregated across the street from the school, but no 
acts of violence were committed or threatened. The 
evidence showed that the Guard could have main­
tained order at the school without preventing the at­
tendance of the Negro students (R. 70-71).

The appearance of the United States as amicus 
curiae: That day, September 4, the district court 
wrote the United States Attorney at Little Rock that 
it was advised that its order directing the carrying 
out of the school district’s integration plan “ has not 
been’ complied with due to alleged interference with 
the Court’s order”  (R. 3-4). The United States At­
torney was requested to make an investigation to de-



7

termine the responsibility for the interference, or the 
failure to comply with the order, and to report his 
findings to the court (R. 4). On September 9, after 
having received this report from the United States 
Attorney, the district court ordered the Attorney 
General and the United States Attorney to appear in 
the proceedings as amici curiae and to file a petition 
seeking injunctive relief against petitioners (R. 6).

In accordance with this order, the United States, as 
amicus curiae, acting through the Attorney General 
and the United States Attorney, filed a petition on 
September 10 against Governor Faubus, General 
Clinger and Colonel Johnson. The petition for in­
junctive relief alleged that, in using the Arkansas Ra­
tional Guard to prevent eligible Negro students from 
attending Central High School, the present petitioners 
had obstructed and interfered with the carrying out 
of the district court’s previous orders of August 28, 
1956, and September 3, 1957; and that, in order to 
protect and preserve the judicial process and to main­
tain the due and proper administration of justice, it 
was necessary that petitioners be made parties de­
fendant, and enjoined from further interference with 
the court’s orders (R. 6-9).

On the same day, the district court ordered that 
petitioners be made parties defendant and that they 
be served forthwith with a summons and a copy of the 
Government’s petition and the court’s order. The 
court set September 20 as the date for a hearing upon 
the Government’s application for a preliminary in­
junction (R. 9-10).

476557— 58~ --------2



8

The following day, September 11, the plaintiffs (the 
school children) moved the court for an order per­
mitting them to file a supplemental complaint against 
petitioners, seeking the same relief as was sought in 
the Government’s amicus petition (R. 10-11, 21-23).

The filing of the affidavit of bias and prejudice; 
On September 10, petitioners were notified that they 
had been made defendants (Pet. 14). On Sep­
tember 19, the day prior to the date set for hearing 
of the application by the Government for a prelimi­
nary injunction, petitioner Faubus filed an affidavit 
of bias and prejudice under 28 U. S. C. 144, supra, 
p. 2. This affidavit stated petitioner Faubus’ belief, 
based upon certain occurrences which had taken place 
between September 3 and September 10, that District 
Judge Davies had a personal prejudice against him 
and a personal bias in favor of the plaintiff school 
children and the United States, amicus curiae; that 
he did not file the affidavit sooner because he was not 
made a defendant until September 10; that the affi­
davit was filed as soon as possible after petitioners 
were made defendants, and the facts of bias and prej­
udice became known to petitioner, and as soon as the 
affidavit could be considered by Judge Davies 
(R . 11-15).3

8 The affidavit made the following allegations:
(1) That between September 3 and September 7 the press 

reported that representatives of the Department of Justice had 
conferred with Judge Davies, that the United States Attorney 
had received F B I reports on the investigation being made pur­
suant to Judge Davies’ letter to the United States Attorney of 
September 4, and that Judge Davies had conferred with the 
Little Bock school superintendent, the United States Attorney,



9

Outlie next day, September 20, the United States, 
as amicus curiae, moved the district court to strike 
the affidavit of petitioner Faubus on the grounds that 
it was not timely filed and that it was leg’ally insuffi­
cient (R. 15-16). At the same time, petitioners moved 
to dismiss the petition of the United States on juris­
dictional grounds (R. 17-18), and for failure to con­
vene a three-judge court under 28 U. S. C. 2284 (R. 
19).

After hearing argument, the district court, on Sep­
tember 20, granted the Government’s motion to strike 
the affidavit of bias and prejudice as not legally suffi­
cient and not timely filed (R. 35), and granted the 
motion of the plaintiff school children for leave to file 
their supplemental complaint (R. 36). The court de-
the United States Marshal, and the attorney for the Little Rock 
School Board (R. 12-13).

(2) That Judge Davies had received from the United States 
Attorney a report of the investigation conducted pursuant to 
the Judge’s letter of September 4; that the report contained 
hearsay statements indicating that petitioner Faubus had acted 
in bad faith, and that on the basis of this report Judge Davies 
“has formed an opinion on the merits o f this controversy and 
has prejudged the issues to be tried herein” (R. 13).

(3) That in connection with Judge Davis’ order o f Sep­
tember 7, denying the school authorities a stay o f his order 
o f September 3, Judge Davies had made reference to a state­
ment, not in evidence, by the Mayor o f Little Rock that there 
was no indication from sources available to him that there 
would be any violence in regard to the situation (R. 13-14).

(4) That Judge Davies, in ordering the Department o f Jus­
tice to “ intervene” in the action and to file the amicus peti­
tion against petitioner Faubus, on the basis o f information 
given him by persons not parties to the litigation, “has de­
parted from the role of hnpartial arbiter of judicial questions 
presented to him and has, in fact, assumed the role o f an advo­
cate favoring adverse parties to this affiant” (R. 14).



10

rued petitioners' motions to dismiss the petition of the 
United States (R. 58, 60).

As soon as the court ruled upon these motions, and 
prior to the introduction of any testimony in support 
of the applications of the United States, as amicus 
curiae, and of the plaintiff school children for a pre­
liminary injunction, counsel for petitioners stated that 
he was standing on his motions and thereupon with­
drew from the hearing (R. 60-61). At the close of 
the testimony presented by the Government in sup­
port of its application for a preliminary injunction, 
counsel for the plaintiff school children adopted all of 
that testimony as testimony on their behalf (R. 61).

At the conclusion of the hearing, the district court 
found that the school board’s plan of integration, 
approved by the district court and the Court of Ap­
peals, “ has been thwarted by the Governor of Arkan­
sas by the use of Rational Guard troops”  and that 
“ there would have been no violence in carrying out 
the plan of integration and that there has been no 
violence.”  The court then granted the application of 
the United States, as amicus curiae, for a preliminary 
injunction against petitioners (R. 62).

The injunction order, reciting in detail the events 
which culminated in its issuance, permanently re­
strains petitioners (a) from obstructing or prevent­
ing, by means of the Arkansas Rational Guard or 
otherwise, eligible Regro students from attending 
Central High School, (b) from threatening or coerc­
ing the students not to attend that school, (e) from 
obstructing or interfering in any way with the carry­
ing out and effectuation of the court’s orders of Au­



gust 28, 1956, and September 3, 1957, or (d ) from 
otherwise obstructing or interfering with the consti­
tutional right of the Negro children to attend the 
school (R. 64) ,4

On April 28, 1958, the Court of Appeals unani­
mously affirmed the order granting the preliminary 
injunction.

A R G U M E N T

Petitioners do not challenge on the merits the in­
junctive order presently outstanding against them. 
Rather, they place principal reliance here on the con­
tention that both courts below erred in ruling that the 
affidavit of bias was, in fact, not timely filed. We 
show below that this contention, as wTell as the re­
maining arguments asserted by petitioners, are wholly 
without substance, and that the decisions of both 
courts below are correct in all respects and warrant 
no further review here.

1. Petitioners’ contention (Pet. 12-22) that Gov­
ernor Faubus’ affidavit of bias and prejudice was im­
properly stricken by the district court is without 
merit. The applicable statute, 28 U. S. C. 144, supra, 
p. 2, provides in relevant part:

Whenever a party to any proceeding in a 
district court makes and files a timely and 
sufficient affidavit that the judge before whom

11

4 The injunction also provides that, it shall not be deemed to 
prevent petitioner Faubus, as Governor o f Arkansas, “ from 
taking any and all action he may deem necessary or desirable 
for the preservation o f peace and order, by means of the A r­
kansas National Guard, or otherwise, which does not hinder 
or interfere with the right of eligible Negro students to attend 
the Little Rock Central High School” (R. 65).



12

- the matter is pending has a personal bias or, 
prejudice either against him or in favor of any 
adverse party, such judge shall proceed no fur­
ther therein, but another judge shall be as­
signed to hear such proceeding.

The affidavit shall state the facts and the rea­
sons for the belief that bias or prejudice exists, 
and shall be filed not less than ten days before 
the beginning of the term, at which the pro­
ceeding is to be heard, or good cause shall be 
shown for failure to file it within such time 
* * *, [Emphasis added.]

The district court struck the affidavit for two rea­
sons: (1) that it was not timely filed, and (2) it was 
not legally sufficient (R. 16). The court was correct 
on both grounds.5

(a) The affidavit of bias and prejudice, although 
based upon events known to have occurred between 
September 3 and September 10 (R. 12-14), was not 
filed until September 19, 1957, nine days after the 
filing of the Government’s application for a prelimi­
nary injunction, and one day prior to the date set for 
hearing thereon. The delay in filing the affidavit was 
particularly significant, for Judge Davies was the only 
district judge then available in either District of Ar­
kansas (Pet. App. 14a), and, if he had decided in favor 
of petitioner Faubus, there would have been insufficient 
time to communicate with the Chief Judge of the 
Eighth Circuit and for the Chief Judge to arrange to 
have another judge come to Little Rock to hear the ap­

5 Agreeing with the district court that the affidavit was not 
timely filed, the Court o f Appeals found it unnecessary to con­
sider its legal sufficiency (Pet. App. 14a).



13

plication for injunction the next morning. A  postpone­
ment of the hearing would have been inevitable in a 
situation where the utmost promptness was required. 
In circumstances less urgent than those here, it has 
been held that similar affidavits of bias and prejudice 
were untimely. See Bommarito v. United States, 61 
F. 2d 355 (C. A. 8 ) ; Boivles v. United States, 50 F. 2d 
848 (C. A. 4), certiorari denied, 284 IT, S. 648; Lips­
comb v. United States, 33 F. 2d 33 (C. A. 8 ); Bishop 
v. United States, 16 F. 2d 410 (C. A. 8 ); Rossi v. 
United States, 16 F. 2d 712 (C. A. 8) ;  Chafin v. 
United States, 5 F. 2d 592 (C. A. 4), certiorari denied, 
269 U. S. 552.

Petitioners also argue (Pet. 14) that the affidavit 
was timely because it was filed within the twenty 
days provided by the rules for an answer to the peti­
tion. The short and dispositive answer to this con­
tention is that, of course, an application for a pre­
liminary injunction may be heard, as it was here, 
before expiration of the time to answer. ISTor is the 
delay excused by the fact that petitioners chose to 
retain private counsel rather than to utilize the serv­
ices of the Attorney (ten era! of Arkansas.6 Certainly, 
petitioners cannot delay selecting counsel and use that 
delay as an excuse for not filing the affidavit of bias 
and prejudice as soon as the alleged facts on which

8 Since petitioners contended that the Government’s amicus 
petition amounted to a suit against the State of Arkansas 
(R. 17-18), there can be no doubt that the Arkansas Attorney 
General was authorized to represent them. See Arkansas 
Statutes, 1947 (1956 Replacement), 12-712.



14

it is based come to their attention. Cf. Hibdon v. 
United States, 213 F. 2d 869 (C. A. 6).

Equally untenable is petitioners’ contention (Pet. 
15) that, even if the affidavit had been filed promptly, 
it could not have been considered by Judge Davies 
because he was not then present in Little Rock. The 
record does not show the dates of Judge Davies’ ab­
sence from Little Rock. Even it it be assumed, how­
ever, that he was away from Little Rock during most 
of the period between September 10 and 20, there is 
no reason to think that, if the affidavit had been 
promptly filed, it would not have been brought to his 
attention, either by telephone or by mail, in time for 
him to mile on it, and, if he had deemed it sufficient 
in law, to have made arrangements with the Chief 
Judge of the Eighth Circuit for the assignment of 
another judge to hear the matters set for September 
20. But, by not filing the affidavit until September 
19, petitioner Faubus made it impossible to make ar­
rangements for the designation of another judge with­
out a delay in the hearing. Clearly, in these circum­
stances, both courts below were correct in concluding 
that the affidavit was not timely filed.

(b) Moreover, the affidavit was correctly stricken 
because not a single allegation in it could reasonably 
justify an inference of personal bias by Judge Davies 
against Governor Faubus.

Paragraphs (1) through (4) of the affidavit allege, 
in substance, that Judge Davies had conferred with 
the United States Attorney and other representatives 
of the Department of Justice about the case (R. 12- 
13). This allegation can hardly constitute a legally



15

sufficient ground to support an affidavit of bias and 
prejudice. Indeed, identical allegations have been 
characterized as “ frivolous”  in Craven v. United 
States, 22 F. 2d 605, 607 (C. A. 1), certiorari denied, 
276 U. S. 627, and United States v. Gilbert, 29 F. 
Supp. 507, 509 (S. D. Ohio). See Scott v. Beams, 
122 F. 2d 777, 788 (C. A. 10), certiorari denied, 315 
U. S. 809, where the court held that an affidavit of 
bias and prejudice asserting that the judge had dis­
cussed issues in the case with an Assistant United 
States Attorney, in the absence of opposing counsel, 
“was not a fact showing bias and prejudice.” See, 
also, United States v. Onan, 190 F. 2d 1 (C. A. 8).

Paragraphs (2) and (5) of the affidavit also assert 
in substance that Judge Davies had received FBI 
reports from the United States Attorney containing 
hearsay statements, and that, on the basis of these 
reports, Judge Davies “has formed an opinion on the 
merits of this controversy and has prejudged the 
issues to be tried herein”  (R. 12-13). The mere re­
ceipt of the FB I reports by the district court is, of 
course, no basis for inferring prejudice. The dis­
trict court was entitled to know what the facts were 
with respect to alleged interference with its previous 
orders (see R. 3-4), and, in a matter going to the 
integrity of the judicial process, the court was clearly 
entitled to call upon the law officers of the Govern­
ment for assistance. Cf. Universal Oil Products Co. 
v. Boot Refining Co., 328 U. S. 575, 581. The bare 
allegation that Judge Davies had prejudged the is­
sues on the basis of the FB I reports is wholly insuffi­
cient under the statute. Price v. Johnston, 125 F. 2d



16

806, 812 (C. A. 9), certiorari denied, 316 U. S. 677.
In re Lisman, 89 F. 2d 898 (C. A. 2) ; Henry v. Speer, 
201 Fed. 869, 872 (C. A. 5).

Paragraph (6) of the affidavit states that the 
district court, in denying an application by the Little 
Rock school authorities for a stay of its order of Sep­
tember 3, referred to a statement not in evidence made 
by the Mayor of Little Rock (R. 13-14). Even if it 
be conceded arguendo that it was error for the court 
to refer to a statement outside the record, the allega­
tion is still legally insufficient. Nothing in the state­
ment referred to, or in the fact that it was cited by 
the district judge, supports an inference of personal 
prejudice against petitioner Faubus. In any event, 
a legal error by a judge would not be a basis for his 
disqualification. Berger v. United States, 255 U. S. 
22, 31; Palmer v. United States, 249 F. 2d 8 (C. A. 
10); Littleton v. DeLashmutt, 188 F. 2d 973, 975 
(C. A. 4).

Finally, paragraph (7) of the affidavit alleges that 
the district court, on its own initiative, directed the 
Attorney General, as amicus curiae, to file an appli­
cation for an injunction against petitioner Faubus to 
prevent interferences with the court’s order (R. 14). 
In this regard, there can be no question that the court 
was acting well within its authority. See, infra, 
pp. 17-20.

It is clear, therefore, that each and every allega­
tion in the affidavit was plainly insufficient as a matter 
of law and that, on this ground also, it was properly 
stricken by the district court.



17

2. Petitioners further contend here (Pet. 22-28), 
as they did in both courts below, that the district 
court lacked authority to permit the United States, 
as amicus curiae, to file an application bringing in 
petitioners as additional parties defendant, and seek­
ing injunctive relief against them. This is purely 
academic, since, as the Court of Appeals properly 
noted (Pet. App. 15a-16a), the same relief which 
was sought by the Government’s amicus petition was 
sought by the supplemental complaint of the plaintiff 
school children. Nevertheless, we show that the con­
tention is wholly groundless.

Although it is true that ordinarily an amicus curiae 
appears in a case only to advise the court on the issues 
of law involved, there is no legal requirement that the 
role of an amicus be so limited. Particularly where, 
as here, a matter of public interest in the proper ad­
ministration of justice was presented by petitioners’ 
forcible obstruction to the carrying out of the district 
court’s orders of August 28 and September 3, it was 
entirely proper for the district court to call upon the 
Government’s law officers to assist it in resolving the 
issues involved, even though this required the filing 
of a petition seeking injunctive relief and the presen­
tation of evidence in support of the petition.

In Universal Oil Products Go. v. Boot Refining Co., 
328 U. S. 575, 581, involving a question of the subver­
sion of the due administration of justice by fraud, this 
Court said: “ After all, a federal court can always call 
on law officers of the United States to serve as amici.”  
On the remand of that ease to the Court of Appeals, 
that court authorized the Attorney General to appear



18

in the ease as amicus curiae and authorized a special 
assistant to the Attorney General to appear for the 
United States, as amicus curiae. The special assist­
ant, with the approval of the court, filed a statement 
of facts (which was the equivalent of a pleading) and 
presented evidence before the Court of Appeals. Root 
Ref,ning Co. v. Universal Oil Products Co., 169 F. 
2d 514, 519-521, 537 (C. A. 3), certiorari denied, 335 
U. S. 912. In disposing of the objection of one of the 
parties that the court lacked jurisdiction to conduct 
such proceedings, the court said: “ This argument com­
pletely ignores the inherent power of a court to in­
quire into the integrity of its own judgments. * * * 
The matter is not one of merely private concern sub­
ject to the action or inaction of the litigants, but is 
one of vast public importance, so that it becomes im­
material that the injured party may have been derelict 
in bringing the fault to the court’s attention.” (169 
F. 2d at 521-522.)

Similarly, in Securities and Exchange Commission 
v. United States Realty <& Improvement Co., 310 U. S. 
434, this Court held that where an issue of public 
interest was involved it was proper for the Securities 
and Exchange Commission, as an agency of the Gov­
ernment, to intervene in a ease and seek affirmative 
relief by way of vacating a prior order made by the 
court.7 Again, in The Exchange, 7 Cr. 116, 118-119, 
where another important public interest was involved,

7 The participation o f the Securities and Exchange Commis­
sion in that case is set forth in detail in the earlier opinion 
o f the Court o f Appeals, In  re United States Realty <& Im ­
provement Go., 108 F. 2d 794,796 (C. A. 2).



19

the United States Attorney filed a “ suggestion”  that 
an attachment against a vessel be quashed and sub­
mitted evidence to justify such relief. See, also A. B. 
Dick Go. v. Marr, 197 F. 2d 498, 501-502 (C. A. 2), 
certiorari denied, 344 IT. S. 878; Kasper v. Brittain, 
245 F. 2d 97 (C. A. 6), certiorari denied, 355 IT. S. 
834; Helmbright v. John A. Gebelein, Inc., 19 F. Supp. 
621, 623 (D. Md.).

Moreover, the statutes prescribing the authority of 
the Attorney General authorized him to appear in this 
case and present the paramount interest of the Gov­
ernment in contesting petitioners’ forcible obstruction 
of the court’s orders. Congress, in 5 G. S. C. 309, 
has authorized the Attorney General, “ whenever he 
deems it for the interest of the United States,”  to con­
duct and argue, either in person or through any officer 
of the Department of Justice, “ any case in any court 
of the United States in which the United States is 
interested * * Similarly, 5 U. S. C. 316 provides 
that the Attorney General may send any officer of the 
Department of Justice “ to attend to the interests of 
the United States”  in any suit pending in any of the 
courts of the United States.

The authority given the Attorney General by these 
statutes is obviously not limited to cases in which the 
United States is a formal party. As stated in Booth 
v. Fletcher, 101 F. 2d 676, 681-682 (C. A. D. C.), 
certiorari denied, 307 U. S. 628:

* * * [5 U. S. C. 309] does not limit his [the 
Attorney General’s] participation or the par­
ticipation of his representatives to cases in 
which the United States is a party; it does not



20

direct how he shall participate in such cases; 
it gives him broad, general powers intended to 
safeguard the interests of the United States 
in any case, and in any court of the United 
States, whenever in his opinion those interests 
may be jeopardized. * * *

These provisions “ grant the Attorney General broad 
powers to institute and maintain court proceedings in 
order to safeguard national interests.”  United 
States v. California, 332 U. S. 19, 27. See, also, 
Sanitary District v. United States, 266 U. S. 405, 
425-426; Kern Biver Company v. United States, 257 
U. S. 147, 154-155; New York v. New Jersey, 256 
U. S. 296, 303-304, 307-308.

In addition, the district court had authority to 
entertain the Government’s amicus petition for an 
injunction against petitioners to prevent their forc­
ible obstruction of the court’s decrees as an exercise 
of the district court’s ancillary jurisdiction to ef­
fectuate its orders and prevent their frustration. 
28 U. S. C. 1651; Steelman v. All Continent Co., 301 
U. S. 278, 288-289; Dugas v. American Surety Co., 
300 U. S. 414, 428; Local Loan Co. v. Hunt, 292 U. S. 
234, 239; Julian v. Central Trust Company, 193 
U. S. 93,112.

Petitioners suggest (Pet. 25) that the United 
States had no interest in this case because the “ action 
was one for the protection of private rights,”  i. e., 
of the plaintiff school children. But this suggestion 
completely ignores the vital interest the Federal 
Government has in seeing that the due performance 
by the federal courts of their constitutional function 
under Art. I l l  is not obstructed by force.



21

Finally, petitioners assert (Pet. 22-23) that the 
Government’s amicus petition was unnecessary to 
uphold the district court’s authority because there 
was an adequate remedy by way of contempt pro­
ceedings. But even if petitioners could have been pro­
ceeded against for contempt, surely that was not an 
exclusive remedy and the court had authority to invoke 
the remedy utilized here.

Accordingly, the district court had jurisdiction to 
enjoin petitioners from forcibly obstructing the court’s 
order. Whether the district court had undertaken to 
do this on its own motion, or chose (as it did) to call 
upon the law officers of the Government for assistance, 
and whether the Government’s pleading for that pur­
pose had been by way of an amicus petition (as it 
was), or by formal intervention in the case, or by 
filing an independent action against petitioners, is 
wholly immaterial. The injunction was proper, and 
petitioners were not prejudiced by the choice of one 
particular style of pleading rather than another. See 
United States v. United Mine Workers of America, 
330 U. S. 258, 295-301; Kasper v. Brittain, 245 F. 2d 
97 (C. A. 6), certiorari denied, 355 IT. S. 834.8

8 Petitioners also contend that the lower court erred in pro­
ceeding to trial on plaintiffs’ Supplemental Complaint which 
was filed without notice to petitioners (Pet. 28-29). But, in 
the first place, no specific objection to lack of notice was made, 
either in the district court, when the plaintiffs moved to file 
the Supplemental Complaint (see R. 35-36), or in the court 
of appeals. Secondly, there could be no possible prejudice, 
since the Supplemental Complaint was, in substance, a repeti­
tion of the matters contained in the Government’s amicus 
petition, o f which petitioners had due notice.



22

CONCLUSION

For the reasons stated, it is respectfully submitted 
that the petition for a writ of certiorari should be 
denied.

J. L ee R ankin ,
Solicitor General. 

George Cochran D oiib, 
Assistant Attorney General. 
Morton H ollander,
Seymour F arber,

Attorneys.
A ugust 1958.

U. S. GOVERNMENT PRINTING OFFICE: 1958