The Sit-In Cases: Explaining the Great Aberration of the Warren Court

Abstract

The Sit-In Cases: Explaining the Great Aberration of the Warren Court CHRISTOPHER W. SCHMIDT The Warren Court is remembered for its commitment to advancing the rights of the disempowered. In cases involving conten­ tious national issues—school desegregation, criminal justice, voting rights—the Supreme Court under the leadership of Chief Justice Earl Warren (1953-1969) offered bold new interpretations of the Constitution. But in a line of cases in the early 1960s—cases many at the time believed to be as significant as any the Warren Court faced—the Court broke pattern. When faced with cases involving appeals of criminal convictions for involve­ ment in lunch counter sit-in demonstrations, the Court ducked, again and again. The Court overturned convictions of the sit-in protest­ ers, but always on narrow grounds. A majority of the Justices never squarely faced the difficult constitutional question at the core ofthe sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use race as a qualification for service? In other lines of cases, when the struggle for racial equality faced constitutional bar­ riers to achieving its objectives, the Warren Court reworked constitutional law. This was particularly true when civil rights activists in the streets were able to secure broad constitutional support for the constitutional claims the civil rights lawyers were pressing in the courts. When it came to the sit-in cases, public opinion had clearly swung behind the cause of the sit-ins protesters. By the middle of 1963, an overwhelming majority of Americans supported equal access to eating facilities.1 In 1964, when Congress was about to pass the Civil Rights Act, which included a national prohibition on racial discrimination in public accommodations, most ofthe nation lived under state or local laws requiring nondiscriminatory access to public accom­ modations.2 Despite this transformation tak­ ing place outside the Court, the Court still refused to align itself squarely with the students. In fact, in late 1963, a majority of THE SIT-IN CASES: THE GREAT ABERRATION 295 the Justices were poised to squarely reject the students’ constitutional claim. The sit-in cases stand as the great—and largely forgot­ ten—aberration of the Warren Court. Why did the Justices, such stalwart defenders of other civil rights claims during this period, have so much difficulty with the sitin cases? When the Justices approached the constitutional claim ofthe sit-ins, they saw the same basic issues that captured the attention of the American people.3 They appreciated the powerful egalitarian message ofblack students sitting at lunch counters, denied their share of American citizenship for no reason other than the color of their skin. They supported the passage of federal legislation ending this shameful situation once and for all. But they also faced concerns that were particular to their places in the institution perched at the apex of the American judicial system. The Justices worked with a distinctive tool, the language of constitutional doctrine, with its particular cate­ gories ofanalysis and reliance on precedent. And they were moved by distinctive institutional interests, the most significant of which was an overriding concern with protecting the legiti­ macy and integrity of the judicial process. The Justices differed among themselves as to the nature, import, and relative weight of these factors, but taken as a whole, they explain why the Court fell out of step with the rest of the nation when it came to the fundamental constitutional question raised by the sit-ins. This article breaks down the Supreme Court’s confrontation with the sit-in cases into four acts. Act One examines two cases, each originating in challenges to racial discrimination that predated the sit-in move­ ment, that arrived at the Court in late 1960 and early 1961, in the aftermath of the sit-ins. I use these cases to introduce the central constitutional issues raised in the sit-in cases A majority of the Justices on the Warren Court never squarely faced the difficult constitutional question at the core of the sit-ins: did the Equal Protection Clause of the Fourteenth Amendment allow private businesses that cater to the general public to use...