How LBJ Saved the Civil Rights Act

In the winter of 1963, as the Civil Rights Act worked its way through Congress, Justice William Brennan decided to play for time. The Supreme Court had recently heard arguments in the appeal of 12 African American protesters arrested at a segregated Baltimore restaurant. The justices had caucused, and a conservative majority had voted to decide Bell v. Maryland by reiterating that the Fourteenth Amendment’s equal-protection clause did not apply to private businesses like restaurants and lunch counters—only to “state actors.” The Court had used this doctrine to limit the reach of the Fourteenth Amendment since 1883. Brennan—the Warren Court’s liberal deal maker and master strategist—knew that such a decision could destroy the civil-rights bill’s chances in Congress. After all, the bill’s key provision outlawed segregation in public accommodations. Taxing his opponents’ patience, he sought a delay in order to request the government’s views on the case. He all but winked and told the solicitor general not to hurry.

And then the conservatives on the Court lost their fifth vote. Justice Tom Clark changed his mind and circulated a draft opinion granting the appeal. In a revolutionary constitutional change, lunch counters and restaurants would suddenly be liable if they violated the equal-protection clause. But Brennan foresaw a new difficulty. By now it was June 1964, and a coalition of northern Democratic and Republican senators looked set to break a southern filibuster and pass a strong civil-rights bill. Would a favorable Supreme Court ruling actually give wavering senators an excuse to vote no? They might say there was no need for legislation because the Court had already solved the problem. So Brennan, ever nimble, engineered a tactical retreat by assembling a majority that avoided the merits of the case altogether. It was an alley-oop to the political branches. They grabbed the ball and dunked it. Ten days after the Court’s decision, Congress passed the Civil Rights Act and the president signed it into law.

In the popular imagination, the Supreme Court is the governmental hero of the civil-rights era. The period conjures images of strong white pillars, Earl Warren’s horn-rims, and the almost holy words Brown v. Board of Education. But in Bell, the Court vindicated civil rights by stepping aside. As Bruce Ackerman observes in The Civil Rights Revolution, Brennan realized that a law passed by democratically elected officials would bear greater legitimacy in the South than a Supreme Court decision. He also doubtless anticipated that the act would be challenged in court, and that he would eventually have his say. The moment demonstrated not merely cooperation among the three branches of government, but a confluence of personalities: Brennan slowing down the Court, President Johnson leaning on Congress to hurry up, and the grandstanders and speechmakers of the Senate making their deals, Everett Dirksen and Hubert Humphrey foremost among them. In this age of obstruction and delay, it is heartening to recall that when the government decides to act, it can be a mighty force....