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.
But three equal branches rarely means three equal burdens, and the civil-rights era was no exception. Although the Court-centered narrative undervalues the two political branches, of those two branches it was the executive that provided decisive leadership in the 1960s. Just as the intragovernmental cooperation of 1964 is striking in light of today’s partisan gridlock, the presidential initiative displayed during the mid-’60s is worth considering in light of Barack Obama’s perceived hands-off approach to lawmaking. Of course, no discussion of civil-rights leadership is complete without including Martin Luther King Jr., who provided moral and spiritual focus, infusing the movement with resolution and dignity. But the times also called for a leader who could subdue the vast political and administrative forces arrayed against change—for someone with the strategic and tactical instincts to overcome the most-entrenched opponents, and the courage to decide instantly, in a moment of great uncertainty and doubt, to throw his full weight behind progress. The civil-rights movement had the extraordinary figure of Lyndon Johnson.
The Civil Rights Act turns 50 this year, and a wave of fine books accompanies the semicentennial. Ackerman’s is the most ambitious; it is the third volume in an ongoing series on American constitutional history called We the People. A professor of law and political science at Yale, Ackerman likens the act to a constitutional amendment in its significance to the country’s legal development. He acknowledges the Supreme Court’s leadership during the 1950s, when President Eisenhower showed little enthusiasm for civil rights, and when Congress passed the largely toothless Civil Rights Act of 1957. During those same years, the Court spoke with a loud, clear voice, unanimously deciding Brown, which ordered the desegregation of schools, and Cooper v. Aaron, which held that state segregation laws conflicting with the Constitution could not stand. But the Supreme Court does not command the National Guard or control the budget. Someone needed to enforce those decisions in the defiant South. That is why, Ackerman writes, “the mantle of leadership passed to the president and Congress,” beginning with the 1964 law.
But the political branches ventured into the fray only in the last weeks of 1963. President Kennedy had introduced the bill in June of that year with much ambivalence. As Todd S. Purdum, a senior writer at Politico, recounts in An Idea Whose Time Has Come, Kennedy had led a sheltered life in matters of race. While generally sympathetic to civil-rights ideals, he “believed that strong civil rights legislation would be difficult if not impossible to pass, and that it could well jeopardize the rest of his legislative program.” He had tried to attack literacy tests and other barriers to voting with legislation but had twice been defeated in the Senate, where the old bulls of the South wielded the filibuster with practiced skill. (Roy Wilkins of the NAACP observed, “Kennedy was not naïve, but as a legislator he was very green.”) He regarded Martin Luther King Jr. warily, and with each new southern crisis saw his agenda slipping away. But events finally forced Kennedy to act. The Freedom Riders in Montgomery, the dogs and water cannons in Birmingham, and the sit-in in Jackson all made further equivocation on civil rights impossible by the spring of 1963. Four hours after Kennedy’s speech calling for legislation, an assassin murdered the NAACP organizer Medgar Evers in his own driveway. Five months after that, the bill was stuck in the House Rules Committee—“the turnstile at the entry to the House of Representatives,” in Purdum’s phrase—and the country had a new president.
Purdum, whose book is an astute, well-paced, and highly readable play-by-play of the bill’s journey to become a law, describes the immense challenges facing Lyndon Johnson after Kennedy’s assassination. “When it came to civil rights, much of America was paralyzed in 1963,” he writes. That certainly included Congress. The civil-rights bill, which had been languishing in the House since June, had no hope of coming to a full vote in the near future, and faced even bleaker prospects in the Senate. In fact, Kennedy’s entire legislative program was at a standstill, with a stalled tax-cut bill, eight stranded appropriations measures, and motionless education proposals. And Congress was not Johnson’s only problem. He also had to ensure the continuity of government, reassure the United States’ allies, and investigate Kennedy’s assassination. Purdum’s version of this story is excellent, but he cannot surpass the masterful Robert A. Caro, who offers a peerless and truly mesmerizing account of Johnson’s assumption of the presidency in The Passage of Power.