Gilligan v. Morgan

LOCATION: Pennsylvania State Capital Building

DOCKET NO.: 71-1553
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 413 US 1 (1973)
ARGUED: Mar 19, 1973
DECIDED: Jun 21, 1973

Erwin N. Griswold -
Michael E. Geltner - for respondents
Thomas V. Martin - for petitioners

Facts of the case


Media for Gilligan v. Morgan

Audio Transcription for Oral Argument - March 19, 1973 in Gilligan v. Morgan

Warren E. Burger:

-- this morning in 71-1553, Gilligan against Morgan.

Mr. Martin.

Thomas V. Martin:

Mr. Chief Justice and may it please the Court.

The question presented by this case is whether the propriety of the training, weapons and orders should be determined by the Federal Court or by the other branches of the Federal Government.

Another question presented by this case is whether injunctive relief against the use of the National Guard or against the use of certain training, weapons or equipment of the guard would constitute an unwarranted interference with a legitimate activity of a state.

This case arose of the use of the National Guard to control civil disorders which occurred at Kent State University in May of 1970.

The respondents filed suit, the following fall claiming that the Governor had prematurely called the guard to duty, that the conduct of the guard while on duty at Kent State violated the student's constitutional rights and that Section 5923.55 which provides under limited circumstances immunity for members of the National Guard was unconstitutional.

Respondents also claimed that the continuance of the same operating methods and procedures of the National Guard under the continued direction of defendants constituted a threat of repetition of injury in the future.

The District Court dismissed the complaint on the ground that it failed to state a claim upon which relief could be granted.

The Court of Appeals unanimously affirmed the District Court in its dismissal of two causes of action.

However, it found that the complaint did state a claim with respect to the following question.

Whether there was and is a pattern of training, weaponry, and orders of the National Guard which requires or makes inevitable the use of a lethal force in controlling civil disorders where such force is not reasonably necessary.

Petitioners who are the successors in office to defendants below filed a petition for a writ of certiorari to this Court to review the portion of a judgment which reversed the District Court.

The issue as framed by the Court of Appeals will require the Court to determine the propriety of the training, weapons and orders of the National Guard.

The resolution of this issue has been committed to the other branches of the Federal Government.

Petitioners therefore contend that this issue presents a non-justiciable political question.

All of the factors or formulations which this Court has said, may describe a political question are involved herein.

There is a demonstrable constitutional commitment of the issue to Congress.

Article 1, Section 8 of the constitution gives Congress the power to provide for the training and equipment of the National Guard.

The Congress pursuant to this power has enacted legislation which prescribes the proper training, weapons and orders for the National Guard.

Congress has also enacted legislation which delegates to the President, the authority to prescribe regulations and issue orders concerning these matters.

The President has also acted pursuant to his authority and has prescribed mandatory riot control training requirements for the National Guard.

Any relief which the District -- which a Federal Court could give would express a lack of respect for the coordinate branches of the Government.

Both Congress and the President have the authority and the responsibility to determine the proper methods of training and equipping the National Guard.

Any judicial relief which would control these matters would therefore indicate a lack of respect by the Court for these coordinate branches to carryout their responsibilities.

Any judicial relief which controlled the training, weapons or orders of the National Guard would also run the risk, create the risk of conflicting pronouncements by the various departments on the same subject.

Both Congress and the President have acted pursuant to their authority in the past.

There is no reason to assume that they will not again so act in the future.

Any judicial relief as to these matters might create varying or even conflicting directives with future directives from either Congress or the President.

These conflicting directives could cause confusion and delay responding to the civil disorders.