or to submit plans to accomplish desegregation as soon as practicable. Thus, the school boards would have the burden of showing how much, if any, time was required to carry out desegregation.

THE HOXIE CASE

The United States appeared again as amicus curiae to advise the court on the issues of law involved in Brewer v. Hoxie School District No. 46 of Lawrence County, Arkansas, which reached the United States Court of Appeals for the Eighth Circuit in October 1956. That action was brought by the Hoxie School Board against a group of individuals who had conspired to obstruct its attempt to comply voluntarily with the Supreme Court's ruling. The defendants were charged with making inflammatory speeches, trespassing on school property, causing the early closing of the schools, and reducing school attendance when the schools were open. The Federal district court had granted a temporary restraining order, and later an injunction. The United States intervened on appeal with leave of the court and a stipulation between the parties. Its brief as amicus curiae advocated affirmance and asserted as its reason for intervention the nationwide importance of the issue presented. This issue, whether or not State officials could be protected by the Federal courts from a purposeful obstruction to the performance of a duty imposed upon them by the Constitution of the United States (as distinct from a court order), was decided in the affirmative by the court of appeals. Its opinion borrowed extensively from the Government's brief. The court said: "

...

9

The principles enunciated by the Supreme Court in the School Segregation Cases are binding upon plaintiffs in this case, as well as on all other school boards or school officials administering public education programs. Plaintiffs are under a duty to obey the Constitution. Const. Art. VI, cl. 2. They are bound by oath or affirmation to support it and are mindful of their obligation. It follows as a necessary corollary that they have a Federal right to be free from direct and deliberate interference with the performance of the constitutionally imposed duty. The right arises by necessary implication from the imposition of the duty as clearly as though it had been specifically stated in the Constitution.

In the second Brown and Hoxie cases, the United States had followed the traditional pattern of amicus intervention, appearing only to advise

the Court on issues of law involved. The Supreme Court has stated that "[A] Federal court can always call on law officers of the United States to serve as amici."10 However, the function and powers of amicus curiae have recently become an issue in school desegregation cases because of the more extensive participation of the Attorney General in this capacity and as intervenor in some suits.

THE CLINTON CASES

In the criminal contempt proceedings brought for the violation of an injunction against Kasper for violent interference with the orderly desegregation of public schools in Clinton, Tennessee, the United States Attorney, on request of the court, participated actively as amicus curiae, and even interrogated witnesses. On appeal the United States Court of Appeals for the 6th Circuit upheld the conviction, noting the participation in the trial by the United States Attorney.11

The Federal role in the Hoxie and Kasper cases showed an expanded concept of amicus-not merely an adviser on the law but a defender of those performing a Federal duty. Each was based on the theory that the school board, having a duty to admit students to the public schools on an equal basis, had a corresponding right to be protected in the performance of that duty. The interest of the United States in providing that protection justified its intervention.

THE LITTLE ROCK CASES

The special interest of the United States in supporting the orders of its courts was a crucial feature in Aaron v. Cooper.12 While the Little Rock school board was preparing to desegregate Central High in accordance with a Federal court order, the Arkansas General Assembly passed a number of laws to block school desegregation. Thus armed with legislative authority, in September 1957 the Governor ordered the Arkansas National Guard to prevent Negroes from entering the school.1 When the school board sought instructions, the Federal district court directed the board to proceed with the desegregation forthwith, denied a stay,1 and advised the United States Attorney by letter that its original order had not been complied with.15 The Court requested him to investi

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gate and report his findings. On the basis of his report, the court ordered the Justice Department to intervene as amicus and directed it to file a petition against the Governor to enjoin him from further acts to prevent compliance with the court's order. The petition was filed (United States v. Faubus), hearings were held, and the court granted a preliminary injunction against the Governor and officers of the National Guard.16 The Governor then withdrew the National Guard. Disorder and violence followed. On September 23, 1957, a presidential proclamation ordered all persons engaged in any form of obstruction of justice in Little Rock to cease." On the following day the President directed the Federal troops to remove any obstruction to compliance with the court order.18 The presidential proclamation and order were issued pursuant to Title 10, United States Code, sections 332-334, which authorize the President to use the military to enforce the laws of the United States (whenever he considers that unlawful obstructions make it impracticable to enforce them by the ordinary course of judicial proceedings), and to suppress any domestic violence obstructing the execution of the laws or impeding the course of justice under those laws. The phrase, "the laws of the United States," had been held to cover not merely acts of Congress but Federal law in its broader sense, including the Federal Constitution and orders of a Federal court enforcing constitutional rights.19

This was the extent of direct intervention by the Chief Executive in the Little Rock crisis. However, the Attorney General continued as amicus curiae when the Arkansas Governor appealed the preliminary injunction imposed upon him. He contended that the Attorney General had no authority to file the amicus petition in the trial court. In his brief on appeal the Attorney General cited Title 5, United States Code, section 309, which authorizes him "whenever he deems it for the interest of the United States" to conduct 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 "and Title

5 United States Code, section 316, providing that the Attorney General may send any officer of the Department of Justice "to attend to the interest of the United States" in any suit pending in any court of the United States. This authority is in addition to the specific power to appear in cases in which the United States is a formal party.20 The brief also stressed the point that:21

The Government appeared in the cases only when an issue quite apart from the personal rights of the plaintiffs arose; i.e., the protection of the integrity of the district court's process from subversion by appellants' forcible obstruction to the carrying out of the court's order of September 3.

The court of appeals sustained the Government's position and upheld the district court's power to issue its order inviting the Attorney General to appear as amicus curiae and authorizing him to file pleadings, evidence and briefs and to file a petition for injunction to prevent obstruction of the court's order. The court of appeals said: 22

It was proper for the court to do all that reasonably and lawfully could be done to protect and effectuate its orders and judgments and to prevent them from being thwarted by force or otherwise. The court could not, with propriety, employ private counsel to do the necessary investigative and legal work. It has, we think, always in the past been customary for a Federal district court to call upon the law officers of the United States for aid and advice, in comparable situations.

In our opinion, the status of the Attorney General and the United States Attorney was something more than that of mere amici curiae in private litigation. They were acting under the authority and direction of the court to take such action as was necessary to prevent its orders and judgments from being frustrated and to represent the public interest in the due administration of justice.

This sanctioned a broad interpretation of the function of the United States as amicus in school desegregation cases. Since Faubus the declared purpose of such intervention has been to prevent obstruction of court orders, to protect and preserve the integrity of the Federal courts, and to maintain the proper administration of justice.

23

The United States submitted additional briefs as amicus in the subsequent Little Rock school litigation. It argued successfully against suspension of a school desegregation plan before the Supreme Court of the United States. After the Little Rock high schools were closed by the Governor's order, it intervened successfully to prevent the school board from leasing high school buildings to a private educational organization contending that the action was a device to frustrate the district court's prior desegregation order.24

Another amicus brief was submitted in Aaron v. McKinley,25 a suit contesting the constitutionality of acts directing the Governor to close schools under court order to desegregate, and authorizing the withholding of State funds from such schools. A three-judge Federal court declared both statutes unconstitutional.26 The Supreme Court of the United States affirmed per curiam after the Attorney General had filed an amicus brief." On the basis of the precedents established in the Little Rock cases the Federal Government has continued its active role in school desegregation litigation now pending in Louisiana, Virginia, and New York.

THE LOUISIANA CASES

An Interposition Act 28 purported to suspend the effect of the Brown decision in Louisiana, and made it a crime for Federal officers to attempt to enforce Federal court orders issued pursuant to the decision in the School Segregation Cases. In the face of this defiance of Federal authority, the United States brought suit in a Federal district court in United States v. Louisiana 29 against the State (and certain of its officials), and filed a motion for preliminary injunction. The brief supporting the motion justified this direct intervention on the ground that the Interposition Act was designed:*

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.. to impede and obstruct the performance of duties by United States courts, United States marshals, and other Federal officials and agencies, and thus to frustrate the proper execution of the laws of the United States. If enforced, the Act would have the effect of paralyzing at least one phase of the enforcement of these laws in the State of Louisiana.

The Attorney General claimed that: 31

The standing of the United States . . . is derived from the obligation of the Executive Branch to execute the laws of the United States, including the enforcement of Federal court orders. Where the Government has a constitutional duty, it has the right to apply to its own courts for any proper assistance in the fulfillment of that duty. In re Debs, 158 U.S. 564, 584 (1895).

The Attorney General described the legislative measures as a "massive effort to evade, obstruct, and repudiate the law of the land, to harass Federal personnel, and to deprive American citizens of their rights under the Constitution." He asked the court for an injunction against their enforcement in the name of the "profound interest in the protection of the integrity and inviolability of the Federal courts and of the constitutional freedoms of the citizens of this Nation and their right to be immune from arbitrary and oppressive State action.” 32 The court granted a temporary restraining order against enforcement of the interposition statute by Louisiana, its Governor, Attorney General, Director of Public Safety, District Attorney of the Parish of Orleans, sheriff, or other officials, and later issued a temporary injunction to the same effect.33 In the meantime, a three-judge Federal court had designated the United States amicus curiae in Bush v. Orleans Parish School Board where the issues involved the constitutionality of the new Louisiana legislation attempting to nullify the desegregation order. In so doin the court said: 3