Lupper v. Arkansas Oral Argument

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IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1964

x
Frank James Lupper, et al

Petitioners,
v s .

State of Arkansas
No- 5

Respondent

Washington, D. C.,
Monday, October 12, 1964.

The above-entitled matter came on for oral argument
at 11:45 a.m.

PRESENT:
The Chief Justice, Earl Warren, and Associate 

Justices Black, Douglas, Clark, Harlan, Brennan, Stewart, White, 
and Goldberg.

APPEARANCES:
On behalf Of the Petitioners:
Constance Baker Motley, New York, New York

On behalf of the Respondent:
Jack L. Lessenberry, Chief Assistant Attorney 
General, State of Arkansas, Justice Building, 
Little Rock, Arkansas.



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said the people have argued this was already in the Fourteenth 
Amendment. And so in the Senate, I understand, that was specific­
ally taken up. And tint appears on page 31 of our brief. In 
the Senate there was this change made from the words "hereby 
created" —  it was changed to,"based on this title," which would 
seem to indicate that there v?as some real notion that here were 
rights which were preexisting which were being protected now 
specifically.

JUSTICE WHITE: Then I suppose if your preemption or
Federal supremacy argument to abate these actions is to succeed, 
then I suppose you are saying that the Court must decide whether 
there was a right to service in these establishments prior to 
the passage of the Act.

MRS. MOTLEY: No.
JUSTICE WHITE: Otherwise Section 203 does not reach

your argument. Section 203 says no one will interfere or try to 
punish anyone for exercising a right secured by 201 or 202.
Well, if the .right under those two sections is created with the 
passage of the Act, these particular defendants were not exercis­
ing any rights secured by Section 201 and 202. These defendants 
in these cases, they committed their act before the Act was 
passed.

MRS. MOTLEY: If I can answer the question, these
defendants were exercising a right now secured by this Act, and 
203 now prohibits the infliction of the punishment which has not



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yet been inflicted, that is, the prison term and the $500 fine.
JUSTICE WHITE: The Act says you shall not punish

anyone for doing an act which before the statute he had no right 
to do but after the statute he has a right to do. Is that the 
meaning of 202?

MRS. MOTLEY: Yes, I would say so.
As in the preceding case, these petitioners also con­

tend that Title II mandates a referral of the judgments below, 
and a remanding of these cases for dismissal as a matter of 
Federal law pursuant to the unique legislative phenonemen rule 
enunciated by this C ourt in Bell against Maryland, and in accord­
ance with the express terms of Section 203(c) of Title II, which 
we have just referred to, permitting punishment for exercising 
the right to equal treatment in places of public accommodation.

The argument just made by Mr . Greenberg, of course, in 
the preceding case with respect to this we adopt. But I would 
like to point out that Arkansas, like Maryland, and unlike South 
Carolina, does have a saving clause statute. In fact, they have 
two which relate to this problem. And these statutes appear on 
pages S and 7 of our brief.

Unlike Maryland, however, these Arkansas statutes 
refer only to repeal of any criminal or penal statute. Conse­
quently, if this Court, for some reason, should not agree with 
petitioner’s argument that Title II has the effect of compelling 
a reversal of these convictions as a matter of Federal lav; and



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case.
MRS. MOTLEY: Yes.
JUSTICE HARLAN: And therefore of course you could

have different interpretations.
MRS. MOTLEY: Yes, the courts could interpret it

differently, yes.
JUSTICE GOLDBERG: That is an alternate argument.
MRS. MOTLEY: Yes, sir.
If, as respondents claim, Arkansas —  to further 

expand on this point -- if, as respondents claim, Arkansas has now 
set its face against its officially segregated past and has now 
turned for the future, free from state-imposed racial segregation 
in the public life of that state, then certainly this new state 
policy might be taken into consideration by the Supreme Court 
of the state upon a remand of these cases to chat court to deter­
mine the effect of Title II on these convictions.

But as Mr. Greenberg has already argued, this remand 
for state court consideration of the effect of Title II is 
entirely unnecessary, and there is ample Federal authority and 
necessity for remand for dismissal by this Court.

Petitioners here argue, as did petitioners in Bell 
against Maryland, that their convictions violate the equal pro­
tection clause of the Fourteenth Amendment since their convic­
tions enforce racial discrimination in violation of that clause.

THE CHIEF JUSTICE: We will recess.



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11 be-applicable,, and under state law they would abate.
And the State of South Carolina could not discriminate against a 
Federal law.

In Arkansas, on the other hand, there is a saving 
statute, and therefore it is a question of statutory interpreta­
tion.

If repeal means the same thing as repeal in the 
Federal statutes, then the Supreme Court of Arkansas might hold 
that these convictions abate because there is no statute saving 
the punishment. If not, then the proceedings do not abate, and 
of course that would be a question of state lav; —  under the law 
of the state they would not abate, and then we could not come 
back here on that question, although of course we have other ques­
tions, Constitutional questions, dealing with protection and so 
forth, which we argue.

JUSTICE BRENNAN: Senator Motley, what have you to
say about the record indicating coverage of this establishment?

MRS. MOIAEY; Well, in this case, as in the preceding 
case, the record is clear that this was a department store.

JUSTICE BRENNAN: Locally owned, was it not?
MRS. MOTLEY: Pardon me?
JUSTICE BRENNAN: The record does not show it was one

of these national chains.
MRS. MOTLEY: No, it does not. It appears to be 

locally owned. There is no testimony on that question. But



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it is a department store, and one or the petitioners testified 
that he had been a customer there for some time and that his 
mother had an account there for nineteen or twenty years. It 
was therefore a place open to the public, and our position is 
chat open to the public includes all of the public and is there­
fore covered by the Civil Rights Act, because it is a place which 

serves the public.
JUSTICE GOLDBERG: Mrs. Motley, can you clear up a

factual discrepancy which appears in the two briefs here and 
give us vour version as to actually what happened on che facts.

They went to the lunch/■ counter and asked to be 
served. The manager said they could not be served. How long, 
according to your version, did they remain at the lunch counter, 
and when the police came it appears they were going out of the 
store —  and that is challenged. Would you just enlighten us 
a little on the facts of this case?

MRS. MOTLEY: Yes. It appears chat these petitioners
went to the lunch counter and they were approached by the manager, 
and the assistant manager. The manager merely says he told them 
he did not want any disturbance and they would have to leave.
Then the assistant manager testified that he approached the boys 
at the lunch counter and spoke to one -- not one of these peti­
tioners but one in the group —  and said, "Well, we are just not 
prepared to serve you now. Would you excuse yourself meaning 
move away from the counter.



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The manager went outside of the store and got the 
police officers and came back. The police officers had already 
been called by another police officer who had observed these 
petitioners going into the store and observed them seating them­
selves at the counter, and ran out co call the police headquarters, 
which apparently was not too far away, because when the manager 
came out, there were the two policemen across the street.

The manager came back in with the two police officers 
and there were the petitioners walking out towards the front 
door. The police officers said, "Are you the two men?*’ And 
the manager identified them as being among the five which he saw 
at the lunch counter. And that was when they arrested them.

Now—
JUSTICE GOLDBERG: How much time elapsed in this

whole period?
MRS. MOTLEY: There is no direct testimony as to

how much time actually elapsed. But it does appear that it was 
just a few minutes, two to five minutes —  I believe the manager 
testified it cook him to go over and come back into the store.

JUSTICE GOLDBERG: But the whole episode obviously
must have lasted longer. Does this account for the half 
hour that the statement refers to?

MRS. MOTLEY: Yes, that”s right. From the time they
came into the store initially, when they were on their way out —  

the whole business cook place sometime between 11:30 and 12:00.



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No one knows the exact time. But the going out and getting the 
police was apparently just a couple of minutes.

Now, before —  I will come back to those facts when 
I get to our due process argument. But I did want to say a word 
about our equal protection argument.

We argued here, as petitioners in Beil and the other 
cases decided last term, that these convictions violate the equal 
protection clause of the Fourteenth Amendment, since these con­
victions enforce racial discrimination in violation of that 
clause. The came constitutionally relevant reasons which we 
urged so extensively and so exhaustively in Bell for reaching 
this conclusion have been succinctly repeated in our brief here 

at pages 46 to 69.
G'USTICE STEWART: That is basically the Shelley against

Kraemer argument?
MRS. MOTLEY: Yes. And our custom argument and our

regime of law argument. These arguments were made until very 
recently to this Court last term and the Court's decision in 
Bell evidences that this Court is thoroughly familiar with our 
intentions in this regard —— that we would like to not argue 
that really extensively here today. However, I think it should 
be noted again that since the granting of certiorari in these 
cases and this court's decision in Bell, we now have a Federal 
legislative prohibition against enforcement of the custom of 
segregation by the states, which we did not have before when



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It is like the situation in Shelley against Kraeraer.

We had a specific Federal statute there on the right to acquire' 
lease and hold real property without regard to race and color.
Wow we have a Federal statute which says specifically that the 
courts may not enforce the custom of segregation.

JUSTICE BLACK: How would you define custom so as to
make it specific and definite, as a law has to be?

MRS. MOTLEY: Well, that which is generally pursued
in the community. Here we do not really have that problem because 
the custom was identified in the South Carolina case and explic­
itly recognized as the custom of the community.

JUSTICE BLACK: By what percentage of the community?
MRS. MOTLEY: Well, according to the record in this

case, it appeared thit this was universal during that period in 
that particular city of Rock Hill but certainly it would have to 
be a substantial majority of the community following a particular 
custom of excluding Negroes, I would think, to say that we have 
in this community a custom of discriminating against Negroes.
And certainly in every southern state where the state as a 
matter of state policy, has had state laws requiring segregation 
in various areas, all such states, I would say, have a custom 
generally in the community of segregation flowing from that as 
a matter of fact.

JUSTICE BLACK: In ocher words, state action would
be something less than law as you understand it, and it would



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Shelley against Kraemer.
MRS. MOTLEY: Yes.
JUSTICE STEWART: Is there any indication in the legis­

lative history of 201(d) that Congress intended to go beyond 
existing case lav; in this matter of state discrimination, and 
what was state discrimination? Specifically, that there was 
any intention to import the supposed analogy of Shelley against 
Kraemer in this connection?

MRS. MOTLEY: Vie 11, I have this quote from a
Committee or House Report here which says that state action may 
under some circumstances be involved where the state lends its 
aid to the enforcement of discriminatory practices carried on by 
private persons. This is Shelley against Kraemer. The court 

held that judicial enforcement of private restrictive covenants 
constituted state action in violation of the Fourteenth Amendment. 
So they specifically had Shelley in mind, as you see. The court 
characterized the case as one in which the states had made 
available to individuals desiring to oppose racial discrimination 
the full coercive power of government. And then they cite Barrows, 
and Bowman against Birmingham, which is a Fifth Circuit case, 
and Lombard, which is a decision of this C ourt.

So chat it is clear that they had in mind our Shelley 
argument in this situation.

JUSTICE STEWART: Really they reviewed this decision
in capsule form.



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trespass.
MRS. MOTLEY: Yes.
JUSTICE HARLAN: That is the clear charge, right or

wrong.
MRS. MOTLEY: That is right.
JUSTICE HARLAN: And that is the charge that the

defendants knew was being preferred against them.
MRS. MOTLEY: That's right.
JUSTICE HARLAN: Is that equally true in the Lupper

case?
MRS. MOTLEY: Well, they were —  I do not have a copy 

of the warrant here. In the Lupper case —  no, I do noc think 
there is a copy of the warrant. There is a copy of the informa­
tion, S. guess, on page 3 that I am looking at.

JUSTICE HARLAN: What does the information say?
MRS. MOTLEY: Well, there are two -- Act 14 —  no,

there is not. That merely recites what took place in the 
beginning here.

JUSTICE BRENNAN: Does this mean anything, Mrs.
Motley, on page 9, on a motion to quash —  there is a recital 
there —  I guess this is defendant5s motion to quash. The 
contention is that Act 226 and so forth, "under which these 
defendants have been charged with creating a disturbance or 
breach of the peace" and Act 14 under which these defendants 
have been charged with failure to leave the business premises



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of the store at the request of management.
MRS. MOTLEY: Yes, that v;as the defendants5 motion

to quash.
JUSTICE BRENNAN: Is that a recital of something?
MRS. MOTLEY: I am not certain that that is a recital

exactly what the information charged. I thought there was a 
copy of the information at the beginning, but apparently not.

JUSTICE HARLAN: May I ask you one more question,
Senator.

Mr. Greenberg said that in the Hamm case, the vague­
ness point which you are now addressing yourself to, was not 
raised specifically, but he thought adequately, in terms of 
the broader question that is involved in the Hamm, but not here, 
as to the prosecutor's refusal to elect the statute under which 
he was proceeding. Was the vagueness point raised in che Lupper 
case below?

MRS. MOTLEY: Yes, sir, it was raised in the Supreme
Court of Arkansas and the Supreme Court of Arkansas passed on 
it not precisely in these terms, but they said the statute 
was clear, that what was required for conviction was a refusal 
to leave the premises, and there was no ambiguity on the face 
of the statute. But vagueness was definitely one of the issues 
before the state court here.

JUSTICE ill RIAN: So they construed cheir statute as
meaning leaving the lunch counter as being included within the



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the Attorney General, on his staff, and of course represent the 
respondent in this action. I think it proper chat I mention 
at the outset chat any lack of convincing quality in the brief 
and my oral argument I hope is not based upon reasonable authority 
thereof, but maybe my own ineptness and the feeling that every 
young advocate may have at his baptism before this Court.

I think petitioners and cheir several eminent counsel 
are to be congratulated on the magnificent job they have done, 
both in preparing their brief and in this effective oral presenta­
tion.

But I necessarily disagree with them.
I think it proper that certain aspects of the record 

before this case be emphasised before I embark on the argument.
This case does involve a privately-owned —  it is a 

family-owned department score. It does have a mezzanine tea 
room that does serve luncheons. And I certainly did not mis­
lead —  intend to mislead Mr. Justice Stewart in saying it 
just served salads. They do have light luncheons in there.
But if you can imagine it just very briefly, this is the type 
of place where during the serving hours a young lady comes out 
and models sweaters and skirts and other female attire to their 
customers chat are seated there. They are almost all women that 
use this facility.

Now, these demonstrators, ̂ ame in. There were not 
just five —  there were five there perhaps when Mr. Holt came



45

THE CHIEF JUSTICE: That is all —  that they had
colored boys up there. Now, what does that mean if it does 
not mean that they were concerned about them because they were 
colored?

MR. LESSENBERRY: Well, I can see this —  that such
a record to this Court probably means that these people were 
per se bad.

THE CHIEF JUSTICE: Because they were colored?
MR. LESSENBERRY: It is my impression —  chat co me,

from Little Rock, and living in a community of different ethnic 
groups, it means nothing else more than a description of who 
was there. I just do not see that an officer or a store 
manager saying "We have colored boys" means that is necessarily 
bad. I do not think the store manager intended to give chat 
implication.

THE CHIEF JUSTICE: Well, how about all your other-
restaur ants at that time? Did they or did they not cater to 
white and colored?

MR. LESSENBERRY: There were some. There was a
restaurant at Ninth or Twelfth Street that was serving colored 
and white when I was a child. People had been free to do what 
they so desired. I see one of the petitioners, local counsel, 
here, and that is the reason I looked back.

THE CHIEF JUSTICE: Suppose—
MR. LESSENBERRY: If I am misstating that—



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I-iR. LESSEBBERRY: Yes, they were in position to
leave. I think they were in one of the corridors. One of them 
stated he was looking at some shades.

The fact of the matter is, though, that upon the 
request, upon two different requests, they said, "Well, what 
for? Why? We are not going to leave." They wanted to argue 
and did argue —  and 1 suppose for a period of time. Ic did 
not seem critical to the prosecutor below. And I honestly do 
not think it i3 too critical here and now chat they stayed 
there any time after these two lawful requests.

I want to skip a portion of my argument and move 
over to the statement concerning the application of 203(c).
That is, as I read the notes of the brief of the petitioners, 
they say that there is not retroactive application of the Civil 
Rights Act. They admit that initially. But then they say that 
203(c) prohibits punishment —  shall prohibit punishment. They 
would say at this time. In other words they would admit or say 
to this Court "We agree that this was a criminal act, and chat 
there was a valid prosecution, and that there is no retroaction 
as far as the affirming state court conviction; but on the other 
hand you cannot now convict them."

I think that—
JUSTICE STEWART: They make several alternative argu­

ments. But as I understand it, you are certainly correct as to 
one of their alternative arguments. It is not that you cannot



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now convict them; it is chat you cannot now punish them.
MR. LESSBMBERRY: That is the point. In other words, 

you would deprive from the entire legal process the thing to be 
gained, punishment, from this. It makes legal procedure a 
criminal procedure, a mockery and nothing more than a farce, to 
my way of thinking, at least.

They say, and make a very emotional argument, that 
if these punishments are to be permitted, that this would be 
a last vestige of segregation —  and after the national conscience 
has said that these persons should not be convicted.

But if it please the Court, the national conscience 
did not provide for retroaction. Congress could have done that. 
They did not. The national conscience, in true terms, was 
actually not in sympathy with these petitioners. If they were, 
it would create a dual system of justice to my way of thinking, 
simply for the benefit of these petitioners.

There have been a number of cases which dramatically 
point this up.

This Court denied certiorari I think back in 1949 
when the Federal statutes were changed from permitting imprison­
ment for rape at either death or life imprisonment. After the 
charge it went back for retrial, and they argued chat the jury 
be instructed to provide for a lesser term of years —  that the 
jury be so instructed. The court refused to do so.

I think there is a significant difference in a man



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being fined $500 and given 30 days, and not permitting a 
jury to give him some term of years but serving life imprison­
ment .

There are numerous analogies here —  the violations 
of the Emergency Price Control Act. I do not think there is 
any question that this statute —  we could twist it so it would 
have Federal origin —  itt would not have been abated under the 
Federal savings statute.

I do not believe that the supremacy clause of the 
United States Constitution has given such an interpretation 
that we are going to treat states one way and Federal laws
another wav.

I want to say something about historical prejudices 
in Arkansas and the South. I cannot help but feel some 
personal animosity and disappointment in view of this argument. 
I think that Arkansas —  it is wrongful that Arkansas and the 
community of Little Rock be condemned for some antiquated 
statutes. I noticed one cited by the petitioners —  it has 
reference to separation of railways. If you look at chat 
statute, it was enacted within three years of Plessey v. 
Ferguson. It held what this Court held at that time. I think 
a real fine analogy was Mr. GreenbergTs statement that he 
did not believe that the provisions of the National Prohibition 
Act have been repealed by our own Congress. Legislatures seem 
to be too busy trying to take care of new business rather than



52

disponing of old business as it becomes ineffective.
There have been, as far as S know, even che Little 

Rock school decision —  there wasn't any Federal compulsion on 
the Little Rock School Board. They implemented their own plan 
of integration. It was only because of the disturbance there.
I invite the Court's attention to those cases, to see where 
the community leaders, Chamber of Commerce, the police officers 
all acted to enforce the law. And X think that they have.

I cannot believe that this Court will tell the 
people of Arkansas that they will take judicial notice that 
they, the people of Arkansas, are prejudiced. As Psalm 11 says, 
it seems co me it is appropriate here —  if our foundations shall 
fall, what shall happen to the righteous. I think there are some 
righteous people. I do not think it is proper -—  if you can make 
an argument of vagueness, if you can make an argument of vague­
ness of the statute, you can certainly make an argument of 
vagueness of this indictment that is brought against the 
people of Arkansas because certainly there was no evidence 
submitted below, there was no proof, there was some mere infer­
ence in their motion for new trial that was not even argued.
If this had been a jury discrimination case, this Court would 
hold, consistent with other holdings in hundreds of other cases, 
that these matters have to be brought to the state court's 
attention —  Carter v. Texas. You cannot just file a motion, 
and again prove and gain a reversal.



54
secured by this statute? Isn't that something unprecedented 
in your state? Do you think any of the existing law in your 
state covers that situation?

KIR. LESSENBERRY: I think the existing statute covers
it. But as far as I know, it has not been interpreted by a case. 
But to borrow a phrase, if we go back to Sutherland on Statutory 
Construction, and the purpose of a savings statute, in cases 
in .Federal Courts —  they ail adhere to that purpose. Because 
immodestly enough if these demonstrators caused Congress co 
enact a Civil Rights Act, still those people acted imprudently 
when they went to a place and did not leave after they had been 
advised to do so.

I want to talk very briefly now, if I may, in regard 
to the case of Shelley v. Kraemer. 7. arn not absolutely satis­
fied to simply distinguish Shelley v. Kraemer. i think Shelley 
v. Kraemer is saying something more. X think it confirms the 
fact that an individual has a right to discriminate if he so 
desires.

X understand Shelley v. Kraemer co say two or three 
different things. The first is that a state court cannot require 
persons to discriminate if they do not wish to do so. Also, 
Shelley v. Kraemer was determined in part at least on the feder­
ally-given right of colored people to deal in property as white 
men.

There is a phrase in Shelley v. Kraemer which is



55

significant to rue, and that is "Voluntary adherence co restric­
tive covenants is not constitutional." Isnct that an individual 
right, to discriminate, voluntary adherence? I believe that
it is.

t These cases are not like Marsh v. Alabama where a
decision can rest upon the right of religion, nor are they 
as in Smith v. Airice, or Terry v. Adams, where under the 
Thirteenth Amendment a person has a right. They are not cases 
involving at this time, I hope, interstate commerce, where 
we could invoke Boynton v. Virginia.

None of these cases, none of these principles say 
that a person has a right to go to a particular restaurant, 
a hot dog stand on the corner, or a mezzanine tea room and 
demand service. Even petitioners in their brief describe it 
as some sort of right. They do not define it for us,

And then in my closing moments, I want to—
JUSTICE BLACK: You do not deny that under the

Civil Rights Act they do have the right to go into such a 
restaurant and ask for service?

DIR. LESSEMBERRY: Yes. I would presuppose and
concede that the Civil Rights Act, for the sake of this 
argument, is constitutional in all respects.

JUSTICE BRENNAN: And would on the date this incident
happened have given them the right for service as demanded.

MR. LESSENBERRY: As a covered establishment. But