THE SUPREME COURT DEBATES
STATE ACTION IN THE SIT-IN CASES, 1963-64
(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 (Douglas) 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. |