(Note:  In 1963, Robert Bell and eleven other demonstrators were arrested during a sit-in at a segregated Baltimore restaurant and tried and convicted of violating state trespass laws.  The central question before the Court was whether, in convicting Bell and the others for trespass, there was state action under the theory used by the Court to find state action (and, ultimately, a violation of equal protection principles) in the case of Shelley v Kraemer.  Was this just neutral protection of private property rights or a violation of the Constitution?  On that key question, as notes of the justices later revealed, the Court was closely divided.  The source for the notes below is: The Supreme Court in Conference, 1940-1985 (Del Dickson, Editor)(pp717-724)).

Conference of October 23, 1963

Warren: I had hoped that we could take these cases step by step, not reaching the final question until much experience has been had. That course seems to me to be impracticable. I don’t go for the solicitor general’s suggestion to avoid the main issue and go off on grounds of vagueness.  The constitutional issue can’t be avoided in some of these cases, and therefore it should be decided in all of them.  We should ask the solicitor general for his views on the fundamental merits of these cases.  The solicitor general says that he is willing to express himself. I think that the government should be on record here. I could dispose of Griffin, as I wrote last year, because of the deputy sheriff. That is state action, and it is not pressing too far. I could reverse Barr on the same ground, because of police action. The police notified the owner – they sent two deputies and participated in the order to remove. The state was working with the owner, who said “We were working as a group,” and that is unconstitutional state action. In Bouie, the police also established the policy. The police participated in establishing the offence by themselves directing the petitioners to leave and, apparently without an express request to arrest them, did arrest them. They arrested on their own, not at the insistence of the owner. The owner or manager did not request it – the police are supplying material elements of the arrest. Also in Barr and Bouie, it was a department store to which all were invited and welcomed, with the exception of the lunch counter.

            I believe that in Barr and Bouie, the actions of the police make the convictions particularly vulnerable because of the plethora of segregation statues of South Carolina. The action of police in the environment of the South Carolina segregation statues makes this state action in support of a state policy of segregation.

            In Robinson, we again have a department store. The police were called and instructed the owner on what to do to make petitioners commit a crime. Also there were two white who were arrested solely because they were with Negroes. The statutes, construed to mean that the owner can eject people for other than offensive conduct, does not give warning because it says “intoxicating, brawling, etc.,” or those who, in the opinion of the manager, it would be detrimental to such a restaurant to entertain. That means that the statute is construed to support ejection for something other than offensive conduct of the kind put into the act. This is not sui generis, and conflicts with the particularity required of criminal acts. This is not of the same species as drunkenness, and so forth. If the legislature wanted to give unlimited discretion to the owner, they would have drawn a different statute.

            In the Bell case I hit hard bottom. Here we get to the raw of the problem, except for the probable case of prior notice that no Negroes were allowed. No matter, however, that this owner served only a segment of the public. In the field of public accommodations, the owner of such facilities abandons his private choice and his right of privacy to own or control his own property as he sees fit. If you have a private property for private use, you can call on the state to throw people off. A person can keep anyone out of his home, or hog pasture, or warehouse, provided that it is strictly private. A church can limit its membership any way it wants and no one could crash the gates, although if the church allows all it could not shut out Negroes. In the field of public accommodations, the owner is advertising to the world for customers without restriction. He gives up some rights of privacy. As long as customers are orderly and behave themselves, they have the same right as all other people to be in that place, and the owner can’t have police help to throw them out. The state would then unconstitutionally enforce discrimination. Shelley v. Kraemer is also violated, for there we held that private grievances and arrangements having races excluded will not be enforced. Here it is worse, because we are putting people in jail. We could even do that on the principle of Marsh v. Alabama. This certainly meets the principle of Shelley v. Kraemer.

            If we are to say that the owner of public accommodations has the right to keep a person out, we endanger the public accommodation laws of some thirty states. If one state can toss them out on racial grounds, so can another.


Black: I do not object to the solicitor general submitting a new brief on the merits. If we affirm, a state or federal government could change the result by legislation. For us to say that this Court can enforce a policy of non-segregation here would be to overrule the Civil Rights Cases. To adopt the Chief Justice’s views would overrule the Civil Rights Cases. I would be willing to overrule those cases if that was all that was involved.

            The Constitution, without more, does not bar segregation in public places.  Florida was making an honest effort to protect a property owner.  We have a system of private ownership.  The Constitution does not distinguish between a home and a store.  We cannot sit here and redesign the Constitution when we think it is just.  When a man owns property, he owns it.  Shelley v. Kraemer and Marsh v. Alabama do not control this.  I would rather overrule these cases than hold that these trespass statutes are void.  Bradley was right in the Civil Rights Cases, when he said once the barrier of privacy is broken down then there is no stopping.  If these businesses can be regulated by the Court in this way, so can private homes.  I have no objection to regulation by a proper body of rights of policy, but we are not the proper agency to do it.

            I would not hold that Florida failed to give proper notice.  Nor would I do that in Bell v. Maryland.  Kraemer is too broad in its languages.  I will go the whole way to protect discrimination by government, but not discrimination by private people.  I think that the right of association is vital to American life, and reversal here would endanger it.  Colored people want to be treated socially like the rest of us.  Perhaps Hitler could make that come to pass, but I will not foist it on people.  Congress can pass a law making it a duty for a storekeeper to sell to all comers.

Douglas: I reverse in all of these cases.

Clark: I agree with Hugo in all that he says.  On Barr and Bouie, I could reverse on lack of notice.  In Griffin I am inclined to affirm.  Although I do not like the delegation of authority in Bell and Robinson, I would face the constitutional issues and affirm both.  There is no state action here under the Civil Rights Cases – I see none.  I would think that the only alternative would be “self-help.”

Harlan: I cannot subscribe more than I do to Hugo’s views.  I do not reach the Civil Rights issues.  I am not ready to overrule them. [Douglas: Though Hugo says that he would.] I cannot say that all this current debate in Congress is beside the point.  A man has a right to exclude from his property any man that he wishes.  The vagueness argument is not valid in any of the five cases here.  When it comes to “fair notice,” it is not realistic to say that the parties were not aware of the facts of the law and the consequences.  I affirm all these cases except for Barr.  As to that case, I would vacate and send it back for a new trial on the ground that the petitioners made out a prima facie case of state action.  Griffin is not a state action – it was a private policeman.

Brennan: I reverse on all of these cases.  I agree generally with Earl Warren and with Bill Douglas.  Criminal laws cannot enforce the owner’s choice in this field.  If we do so hold, then neither Congress nor the states can legislate otherwise.  Under §5 of the Fourteenth Amendment, Congress could not override that private choice.  As respects state statues, how can a state deprive a person of his private choice to seek the aid of criminal law to support his right to a private choice? I reverse all of these cases on Shelley v. Kraemer or on more limited grounds.

Stewart: In Griffin I could reverse, agreeing with what the Chief Justice wrote last year.  In Barr and Bouie, I could find sufficient state participation and reverse.  In Bell and Robinson, I would reach the basic issue.  I agree with Hugo that the result has nothing to do with what a state may do under its police powers, and what Congress could do under the commerce clause.  The question is whether to say that this is “state action.”  It is not a “state denial of equal protection.”

White: I agree with Hugo.  I would reverse in Barr and Bouie.  I would affirm Bell and Robinson.  I am not sure about Griffin, but will probably affirm.

Goldberg: I agree with the Chief and Douglas and HLB.  I could reverse on narrow grounds in Griffin and in Barr and Bouie.  I would reverse broadly in Robinson and Bell.

Black: I can go on the solicitor general’s grounds in a few cases.

[Douglas: In summary of the basic issues of right to deny service, the Court is 5-4 in favor of the restaurants owner’s right to serve only the ones he wants to serve]

Conference of October 26, 1963

Goldberg: I would like to elaborate my views on this case [Griffin], and in Barr, Bouie, Bell, and Robinson.  This is the most serious problem before the Court in recent years.  This will be the first time in the history of the country where if we say that the petitioners are not entitled to their rights, we legitimize racial discrimination.  If we say that these stores have a right to discriminate, we will have to overrule Shelley v. Kraemer, and repudiate the basis of the majority in Civil Rights Cases, and embrace the majority in Plessy v. Ferguson. I agree with the first John Marshall Harlan’s dissent in the Civil Rights Cases.

            We have progressively implemented the policy of desegregation.  Now we are receding – why?  Bradley’s opinion assumes that Congress was dealing with individual action not state action.  He says that the Fourteenth Amendment is aimed at state action “of every kind.”

            The majority opinion must say that Shelley v. Kraemer was wrong and that Bradley was wrong in the Civil Rights Cases, for he assumed that the state had a duty to protect Negroes in their access to public accommodations.  It is also a “privilege and immunity” to live in a society where public areas are free of discrimination.

            I would suggest that it is impossible to write this except by overruling Shelley v. Kraemer and repudiating Bradley.

            I think that the Slaughterhouse Cases were wrong.  The Thirteenth, Fourteenth, and Fifteenth Amendments, if they did nothing else, provided that people shall live in an open and free society where there is no public discrimination.  Racial discrimination is a badge of slavery.

            I agree with Adamson.  I think that the Fourteenth Amendment incorporates the Bill of Rights.  Whether they intended to incorporate all of the Bill of Rights is not important here, but certainly the Fourteenth Amendment decided to get rid of racial discrimination.

            Slavery was followed by the Black Codes, and they were followed by segregation.  Police are now used to enforce state policy of segregation.  There was no segregation in slave days, for when a slave traveled with his master, he was taken in.

            There is no equality here, for a Negro eating has to stand up while a white man sits down.  No “equal facilities” are furnished to these Negroes.

            I fear the results of an affirmance in these cases.  Shelley v. Kraemer does not cover all private rights.  Constitutional rights must be “accommodated.”  We have to reconcile conflicts.

            The Fourteenth Amendment does not give a right to discriminate in the public area.  Yet the majority must rely on that.  It is shocking to me beyond words to predicate the decision on that ground.  A majority vote to that effect will take the Court very far back.

            I believe that Hugo Black’s views are colored by Alabama’s background of slavery.  My family also had a store in Elgin, but they served all comers because Illinois never knew slavery.

            If we decide these cases as we must, and if we allow public discrimination is public places, I am convinced that we will set back legislation indefinitely.  Our society will then have an evil virus inside it that will keep it frozen on racial lines. [Douglas: He refers to last paragraph of Harlan’s dissent in the Civil Rights Cases.]  It would be a great disservice to the nation to decide this issue 5-4.  There is legislation pending.  The federal government’s argument is not implausible.  Rather than handing down a 5-4 decision Black’s way, I think that it is better to put these cases off on the ground urged by the United States, reversing them narrowly and not reaching the broad ground.  I am prepared to vote to reverse on the narrow government grounds.


Douglas: I would suggest that we put the matter over until we can look at the cases we are holding for these.

Harlan: I urge that the matter be tabled until the next conference, so that we can consider the question.

Warren: I suggest that we have these cases put down for November 7.


Bell v. Maryland, 378 U.S. 226 (1964)

Memorandum for the Files


June 20, 1964


            Brennan’s opinion which will be filed on Monday, June 22, 1964, was the product of his plan to keep the Court from deciding the basic constitutional issue of the Fourteenth Amendment.

            He wrote it only after the Court had voted, and the majority agreed to Black’s opinion.  He said at the time that he would not think of filing it if the Court had held that the sit-ins were constitutional.  Later he changed his mind and decided to file it anyway, not as a matter of principal, but because he had been somewhat shamed into sticking to the position he had taken, which came about this way.

            Clark for some reason finally left Black just before the opinions were to be announced, and joined Brennan’s opinion that would vacate and remand.  Goldberg also joined Brennan’s opinion, even though he also filed an opinion on the merits.  The Chief Justice joined my opinion, and he also joined Goldberg’s opinion, so there were three to reverse outright.  Then there were three for Brennan’s opinion, which Brennan maintained was a reversal but which in fact was only a vacating and remanding for reconsideration.  He dressed it up, however, with the word “reversing.”

            Black then amended his opinion, saying that there were only three who avoided the merits, the majority of the Court reached the merits, the three who avoided the merits did not really reverse but only vacated, and therefore if the vote had been taken of those who reached the merits the decision would be one of affirmance, since there were four to affirm and only three, myself, Goldberg, and the Chief Justice, voting to reverse.

            This position greatly disturbed Clark, and at the noon Conference he said he wanted the cases to go over, as he might write something.  It turned out that what he wrote was an opinion to reverse on the merits.  This opinion was conceived in my office in a talk I had with Clark.  After he finished it, he came back; I read it and approved it with a few minor changes.  Then he went on and cleared it with the Chief, with Brennan and with Goldberg.  At that point there was a majority of the Court to reach the basic constitutional issue and to reverse on the merits.  At that point also, Stewart in Conference said something that apparently hit Brennan pretty deep, because he implied that Brennan’s opinion merely to vacate was an opinion not of principle, but of expediency; and if it was good principal to be applied on the judgments below which ought to be affirmed, it was good principle to apply on the judgments below which were about to be reversed.  The exchange between them was brief, but Brennan said he would talk to Stewart.  Several days passed and Potter Stewart got hold of Tom Clark and told Clark that if he would return to Brennan’s opinion to vacate he, Potter Stewart, would join.  That would leave Brennan with himself, Potter Stewart, and Clark, because in the meantime Goldberg has talked with me and decided he would not go along with Brennan’s opinion to vacate. 

            The Chief had gone to Stanford to get an honorary degree and was out of the city that weekend.  I saw him Monday, June 15.  The issue on the sit-ins was still in doubt.

            What has transpired between Brennan and Stewart I do not know, but Brennan at that point had Tom Clark and Potter Stewart only.  At the same time, Clark had not withdrawn his opinion to reverse on the merits, although he expressed a preference to go the way of Brennan’s opinion rather than to reach the merits.

            I saw the Chief and told him what the situation was.  I suggested that if he indicated to Clark he would not join Brennan’s opinion, Brennan then would still lack a majority for vacating and remanding, and Clark’s basic worry on that concern would still remain.  The Chief said he did not think he should talk to Clark.

            Between that conversation and the next day, which was June 16, Clark has talked with the Chief and the Chief, instead of staying put, not only joined Brennan, but also got Goldberg to join.  That, together with Brennan, Clark, and Stewart, made up a majority of the court to vacate and remand. 

            The Chief came in to see me about it after it was all over, and said he thought that was probably the best thing to do under the circumstances.

            On thinking it over, he had decided not only to join Brennan, but also to join Goldberg and me on the merits.

            Then I recirculated, adding Part I of my opinion to be filed June 22, 1964, criticizing the Court for not meeting the issue on the merits.

            The Chief decided to join only Goldberg and not me, although there was nothing in the other parts of my opinion with which he disagreed

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