 The case was originally argued on January 22 , 1968 . During oral argument , some of the justices were concerned that the state of Wisconsin was not a party to the case . Following oral arguments , the court called for reargument and requested that Wisconsin present an oral argument in addition to the brief it had filed with the court . Justice Marshall recused himself from the case , as he had been the U.S. Solicitor General the previous year and had participated in the government 's preparation of the case . 
