A Big Week for Oral Arguments

For four hours a day, four days a week, two weeks a month, the Supreme Court listens to lawyers argue their cases. For the lawyers, their rigorously controlled time before the bench can be a harrowing ordeal. They are allowed exactly one hour* by the clock in which to make their oral arguments--and during that brief span they must field the penetrating questions of the nine justices. "I made three arguments in every case," the late Supreme Court Justice Robert Jackson once wrote about his own appearance before the court as Solicitor General of the U.S. "First came the one that I had planned--logical, coherent, complete. Second was the one I actually presented--interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night."

When he himself was appointed to the court, Justice Jackson learned that his colleagues had mixed views of oral argument. Some thought it vital, others thought it largely a waste of time. Over the years, written briefs have become less and less brief; the justices have the opportunity--whether they use it or not --of reading a lawyer's whole story before he utters a word in court.

Whether the verbal sparring wins, loses or makes little impression, seldom does the court hear oral argument on so many big and brambly constitutional issues in one four-day session as it did last week.

Forms of Evasion. The procession began with a platoon of civil rights lawyers backed up by the Justice Department, arguing that Prince Edward County, Va., should not be permitted to evade court-ordered desegregation by abolishing its public school system. After the Supreme Court's landmark segregation decision a decade ago, Prince Edward closed its public schools in 1959 and set up "private" schools for white children. Negroes had no schools at all from 1959 until last year. "We have a truly local-option law in Virginia," argued an assistant attorney from Virginia. As a friend of the court, Solicitor General Archibald Cox demurred. The Prince Edward dodging of the issue, he said, "constitutes invidious discrimination under the equal-protection clause of the 14th Amendment."

Next, the N.A.A.C.P. Legal Defense and Educational Fund attacked the Atlanta school-integration program as another form of evasion. Atlanta's grade-a-year plan, is not really desegregation, said Lawyer Constance Baker Motley. The pace is too slow, she contended, to qualify as the "deliberate speed" that the Supreme Court called for in 1955. The pace is indeed slow, admitted a lawyer for the Atlanta school board, but the city's attitude, he maintained, "has been compliance, not defiance."

Burning Books. From desegregation the arguments switched to apportionment of seats in state legislatures. The court had considered the subject earlier this term in a cluster of cases not yet decided, and the justices were primed with questions. Seats in Colorado's lower house are already divided up according to population, and the suit by a group of the state's citizens argues that the Constitution requires apportionment along one-man-one-vote lines for both houses of a state legislature. Colorado's Special Attorney General Anthony F. Zarlengo defended rural overrepresentation on the ground that the legislature "must be familiar with the problems of all parts of the state." Countered Associate Justice Arthur Goldberg: "But there are urban problems as well as rural. I just don't follow the argument that the need to safeguard the interests of rural areas, but not urban, justifies discrimination."

Politics having been disposed of for the moment, the court turned to obscenity. The French movie The Lovers, shown unexpurgated in many U.S. cities, had been banned in Cleveland Heights and Dayton, Ohio, and lawyers for the moviemen argued that questions of obscenity must be decided by the prevailing national standards, not by the standards of Cleveland Heights. In a related case, a lawyer for a Kansas book distributor argued that a state law under which authorities had seized and burned allegedly pornographic books was unconstitutionally restrictive. "It's easier to burn books than to prosecute the seller," commented Chief Justice Earl Warren in a broad hint of how the court might rule

False Presumption. One of the last oral arguments of the week concerned U.S.-born Herman Frederick Marks, who had fought in Fidel Castro's revolutionary forces. His lawyers attacked as unconstitutional the loss of citizen ship now prescribed for those who serve in foreign armies. Because it is automatic, and because it is based upon the false presumption that "service in a foreign army is tantamount to renouncing American allegiance," said Marks's lawyer, the law violates the constitutional requirement of "due process."

So went the dialogue. In months ahead, a string of significant decisions should reflect the week of significant argument.

*A few complex cases get extra time, and more and more cases each year are put on the "summary calendar," with only half an hour for each side.

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