April 1, 2014 | The Atlantic
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.
Days after Kennedy’s murder, Johnson displayed the type of leadership on civil rights that his predecessor lacked and that the other branches could not possibly match. He made the bold and exceedingly risky decision to champion the stalled civil-rights bill. It was a pivotal moment: without Johnson, a strong bill would not have passed. Caro writes that during a searching late-night conversation that lasted into the morning of November 27, when somebody tried to persuade Johnson not to waste his time or capital on the lost cause of civil rights, the president replied, “Well, what the hell’s the presidency for?” He grasped the unique possibilities of the moment and saw how to leverage the nation’s grief by tying Kennedy’s legacy to the fight against inequality. Addressing Congress later that day, Johnson showed that he would replace his predecessor’s eloquence with concrete action. He resolutely announced: “We have talked long enough in this country about equal rights. We have talked for 100 years or more. It is time now to write the next chapter, and to write it in the books of law.”
The New York Times journalist Clay Risen contends in The Bill of the Century that Johnson’s contribution to the Civil Rights Act’s success was “largely symbolic.” One might say the same thing about Neil Armstrong’s walk on the moon. Sometimes symbolism is substance—especially where the presidency is concerned. The head of the executive branch firmly seized the initiative, taking up a moribund bill addressing the nation’s most agonizing problem. Here was Johnson, president for only five days, working out of the Executive Office Building because the White House was still occupied by Kennedy’s family and staff, with an election already looming less than a year away. Instead of proceeding tentatively, as most anyone in those circumstances would have done, he radiated decisiveness, betting everything he had right after he got it. As Caro shows so persuasively, from that moment, Johnson’s urgency and purpose infused every stage of the bill’s progress. And in the days and weeks that followed, the stagnant cloud that had settled over Kennedy’s agenda began to lift.
Symbolism was the least of it. Johnson took off his jacket and tore into the legislative process intimately and tirelessly. As the former Senate majority leader, he knew his way around Capitol Hill like few other presidents before him—and none since. The best hope of moving the civil-rights bill from the House Rules Committee—whose segregationist chairman, Howard Smith of Virginia, had no intention of relinquishing it—was a procedure called a “discharge petition.” If a majority of House members sign a discharge petition, a bill is taken from the committee, to the chagrin of its chairman. Johnson made the petition his own personal crusade. Even Risen credits his zeal, noting that after receiving a list of 22 House members vulnerable to pressure on the petition, the president immediately ordered the White House switchboard to get them on the phone, wherever they could be found. Johnson engaged an army of lieutenants—businessmen, civil-rights leaders, labor officials, journalists, and allies on the Hill—to go out and find votes for the discharge petition. He cut a deal that secured half a dozen votes from the Texas delegation. He showed Martin Luther King Jr. a list of uncommitted Republicans and, as Caro writes, “told King to work on them.” He directed one labor leader to “talk to every human you could,” saying, “if we fail on this, then we fail in everything.”
The pressure worked. On December 4—not two weeks into Johnson’s presidency—the implacable Chairman Smith began to give way. Rather than have the bill taken from his committee, he privately agreed to begin hearings that would conclude before the end of January, and then release the bill. Smith looked set to renege on his agreement in the new year, but reluctantly kept his word, allowing the bill to be sent to the full House on January 30, 1964. Risen credits others with this development, suggesting that it was Representative Clarence Brown of Ohio, a Republican member of the Rules Committee, among others, who got Smith to move. Risen is particularly sharp on the evolution of the Republicans during these tumultuous years, but here he accords them too much clout. Brown had to answer to House Republican Leader Charles Halleck of Indiana, whose support Johnson likely bought by proposing, and then personally securing, a NASA research facility at Purdue University, in Halleck’s district. And the entire Republican caucus in the House was wilting under Johnson’s relentless and very public campaign to portray “the party of Lincoln” as obstructing civil rights by opposing the discharge petition.
Johnson kept the bill moving in the Senate by dislodging President Kennedy’s tax-cut bill from the Finance Committee. As vice president, Johnson had advised Kennedy not to introduce civil-rights legislation until the tax cut had cleared Congress. Kennedy didn’t listen, and now both bills were stuck. (Like House Rules, Senate Finance had a wily segregationist for a chairman: Harry Byrd of Virginia.) Risen minimizes the significance of this problem, writing that the tax bill “presented no procedural obstacle to the civil rights bill, only a political one.” (And when does politics ever derail legislation?!) As Caro explains, the tax bill was a hostage. By holding it in committee, the South pressured the administration to give up on civil-rights legislation, with the implication that the withdrawal of the latter might produce movement on the former. But Johnson and Byrd were old friends, and during an elaborate White House lunch they came to an understanding: if Johnson submitted a budget below $100 billion, Byrd would release the tax bill. Johnson then personally bullied department heads to reduce their appropriations requests, and delivered a budget of $97.9 billion. The Finance Committee passed the tax bill on January 23, 1964, with Byrd casting the deciding vote to allow a vote, then weighing in against the measure itself. The Senate passed the tax bill on February 7, mere days before the civil-rights bill cleared the House.
Finally, Johnson helped usher the bill to passage in the Senate by working to break the southern filibuster, which was led by his political patron, the formidable Richard Russell of Georgia. In light of the Senate’s fiercely guarded independence, the president could not operate in the open; he had to use proxies like Humphrey, who was his protégé and future vice president, as well as the bill’s floor manager. Johnson impressed upon Humphrey that the vain and flamboyant Senate Republican Leader Everett Dirksen of Illinois was the key to delivering the Republican votes needed for cloture:“You and I are going to get Ev. It’s going to take time. We’re going to get him. You make up your mind now that you’ve got to spend time with Ev Dirksen. You’ve got to let him have a piece of the action. He’s got to look good all the time. Don’t let those [liberal] bomb throwers, now, talk you out of seeing Dirksen. You get in there to see Dirksen. You drink with Dirksen! You talk with Dirksen! You listen to Dirksen!”
Johnson demanded constant updates from Humphrey and Majority Leader Mike Mansfield, and always urged more-aggressive tactics. (“The president grabbed me by my shoulder and damn near broke my arm,” said Humphrey.) Even though Senate Democrats did not deploy all those tactics, Johnson’s intensity nevertheless set the tone and supplied its own momentum. He kept up a steady stream of speeches and public appearances demanding Senate passage of the strong House bill, undiluted by horse-trading. And he personally lobbied senators to vote for cloture and end the filibuster. Risen contends that Johnson “persuaded exactly one senator” to change his vote on cloture. Given that it is of course impossible to know what motivated each senator’s final decision, this lowball figure is expressed with too much certitude. Evidence presented by Purdum and Caro suggests that Johnson’s importuning, bribing, and threatening may have made an impact on closer to a dozen. The Senate invoked cloture on June 10, breaking the longest filibuster in the institution’s history. The full Senate soon passed the bill. Johnson signed it into law on July 2, 1964, and immediately turned his energies to what would become another landmark statute: the Voting Rights Act of 1965.
Risen’s attempt to minimize Johnson’s significance in the passage of the Civil Rights Act—“he was at most a supporting actor”; “he was just one of a cast of dozens”; “the Civil Rights Act was not his bill by any stretch”—is perplexing. In an otherwise strong book, his revisionist view is less a question of facts than of emphasis: after all, Purdum too notes that Johnson “strategically limit[ed] his own role” at key moments (careful, for example, not to upstage Dirksen). But Risen seems bent on denying Johnson his due, drawing nearly every inference against him and repeatedly overstating the anti-Johnson case. On the one hand, Risen is right to take a fresh look at the evidence and tell the story from a new perspective, focusing on unsung heroes such as Dirksen, Humphrey, Representative William McCulloch, and Nicholas Katzenbach of the Justice Department. He makes a fair point in questioning the way history awards presidents the credit for measures that by necessity cross many desks. On the other hand, Risen is simply wrong to portray Johnson as some hapless operator for trying multiple tactics and targets, some of them unsuccessfully. Johnson’s very comprehensiveness is what jarred the sluggish and paralyzed Capitol into action and ultimately moved the bill.
If the president led and Congress followed, where did that leave the Supreme Court? Three months after Johnson signed the Civil Rights Act, the Court heard arguments in a pair of cases challenging the constitutionality of its most contentious provision—Title II, which outlawed segregation in public accommodations. In December 1964 the Court decided Katzenbach v. McClung and Heart of Atlanta Motel v. United States, upholding Title II as a valid exercise of Congress’s commerce power. In the years since, the act has been a remarkable success. Its acceptance in the South was surprisingly quick and widespread. In a stroke, the act demolished the rickety but persistent foundation for segregation and Jim Crow. Title II reached far into the daily lives of southerners, creating an unprecedented level of personal mingling between the races and making integration a fact of daily life. Title VII, meanwhile, has vastly reduced workplace discrimination, through the efforts of the Equal Employment Opportunity Commission. Although years of toil, struggle, and bloodshed still lay ahead, the 1964 law dealt a major blow to the system of segregation. The past 50 years of American history are almost unimaginable without it.
And yet the anniversary prompts an ominous reconsideration of the Supreme Court’s role in civil rights. In 1954, the Court launched the federal government’s assault on segregation, with Brown. In 1964, it got out of the way of the political branches, then quickly ratified their work. Today when it comes to racial civil rights, the Roberts Court is an aggressively hostile force. Recall Ackerman’s contention that the 1964 act has taken on the weight of a constitutional amendment. At a literal level, this is of course untrue: the act was not ratified by three-quarters of the states and is not part of the written Constitution. This means that a constitutional amendment is not needed to overturn the Civil Rights Act, which is vulnerable to a subsequent act of Congress or, more to the point, a decision by the Supreme Court.
Ten years ago, even mentioning this possibility would have seemed outrageous. But last June, the Court decided Shelby County v. Holder, striking down Section 4(b) of the Voting Rights Act of 1965 as unconstitutional. Section 4(b) listed the states with a history of voting discrimination that were required to seek preclearance from the Justice Department or the courts before amending their voting laws. The 5–4 decision by Chief Justice John Roberts is nothing short of appalling: as unpersuasive as it is misguided, it is, in Ackerman’s words, “a shattering judicial betrayal” of the civil-rights era. It is also the Roberts Court’s most brazenly activist decision: Congress has reauthorized the Voting Rights Act four times, most recently in 2006, with votes of 390–33 in the House and 98–0 in the Senate. In her brilliant dissent, Justice Ruth Bader Ginsburg summed up the decision’s obtuseness: “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Shelby County may be so unique that it portends no harm for the Civil Rights Act. After all, the preclearance regime was extraordinarily invasive. Ackerman calls it the biggest federal intrusion into the prerogatives of the southern states since Reconstruction. But Title II of the Civil Rights Act is also strong medicine, reaching beyond state actors to tell private businesses whom they must serve. It was by far the act’s most controversial provision—and it remains controversial among some conservatives. In 2010, Senator Rand Paul caused a sensation by arguing that the provision in the Civil Rights Act dealing with “private business owners” (ostensibly Title II) is unconstitutional. He quickly walked back his comments, but his father, Ron Paul, proudly continues to make the same argument, and the Tea Party is listening. The Heritage Foundation’s Web site files the McClung decision upholding Title II on its “Judicial Activism” page, tagged to the terms Abusing Precedent and Contorting Text. The Voting Rights Act decision can only embolden Title II’s opponents.
And they just might get a hearing. Three trends in the Roberts Court’s jurisprudence suggest that the justices would be more receptive to a challenge to Title II than any prior Court. First is its disregard for precedent. The Roberts Court has repeatedly ignored prior decisions when doing so enabled a conservative victory—most notoriously in the areas of gun regulation (District of Columbia v. Heller) and campaign finance (Citizens United v. Federal Election Commission). Hence it is little comfort that the Court upheld Title II in 1964. It had also previously upheld the Voting Rights Act and its reauthorizations. Second is the Roberts Court’s impatience with open-ended civil-rights measures, which some justices believe are no longer necessary. “The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years,” the Court wrote in Shelby County, dismissing the need for ongoing vigilance against voting discrimination. And third is the Court’s continued disdain for the commerce clause. Remember when Roberts’s decision upholding the Affordable Care Act made the point that the act was not a valid exercise of Congress’s commerce power? He was singling out the section of the Constitution that supports the Civil Rights Act.
The 1964 law is not in imminent danger from the Supreme Court. But it is worth considering how a hostile Court changes the equation from 1964, when the judiciary acted in concert with the political branches. The new paradigm places a premium on presidential leadership, at the very least in nominating judges and justices who are in sympathy with the great statutes of the 1960s. But the battle over the Civil Rights Act shows that presidents who are serious about concrete social progress must do even more. Lyndon Johnsons, of course, do not come along every four or every 40 years. Even if they did, Johnson brought plenty of darkness (election stealing, a credibility gap, Vietnam) along with the light (Civil Rights Act, Voting Rights Act, Great Society). Moreover, not every president needs to be a legislative genius in order to pass laws. Obama, after all, gambled big on the Affordable Care Act, investing the same type of capital in health care that Johnson invested in civil rights. It is now the law of the land. But the energy and purpose that Johnson brought to the Civil Rights Act struggle remains inspiring, and is a model for all presidents. As Richard Russell, the South’s leader in the Senate during the 1960s, put it to a friend a few days after Kennedy’s assassination: “You know, we could have beaten John Kennedy on civil rights, but not Lyndon Johnson.”