page_title: Archibald Cox
section_title: Civil rights and sit-in cases
hierarchical_section_title: Archibald Cox / Advisor to Senator Kennedy and role in the Kennedy administration / Solicitor General of the United States / Civil rights and sit-in cases
caption_attribution_description: English: Photograph of the U.S. Supreme Court as it was composed from October 13, 1958 to March 26, 1962
context_page_description: Archibald Cox Jr. was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy and as a special prosecutor during the Watergate scandal. During his career, he was a pioneering expert on labor law and was also an authority on constitutional law. The Journal of Legal Studies has identified Cox as one of the most cited legal scholars of the 20th century.
  Cox was Senator John F. Kennedy's labor advisor and in 1961, President Kennedy appointed him solicitor general, an office he held for four and a half years. Cox became famous when, under mounting pressure and charges of corruption against persons closely associated with Richard Nixon, Attorney General nominee Elliot Richardson appointed him as Special Prosecutor to oversee the federal criminal investigation into the Watergate burglary and other related crimes that became popularly known as the Watergate scandal. He had a dramatic confrontation with Nixon when he subpoenaed the tapes the president had secretly recorded of his Oval Office conversations.
context_section_description: During the customary introduction of the Solicitor General to the members of the Court, Justice Frankfurter had an extended talk with his former student. The justice advised Cox that the first case to argue should be something involving criminal law. Cox gave due weight to the recommendation, but he met vigorous objections from his assistant Oscar Davis who argued that civil rights was the most important legal issue facing the country and that Cox should signal in his first argued case the new administration's commitment to fight for it.  Cox agreed and selected Burton v. Wilmington Parking Authority. The case, brought by an African-American who was barred from a private restaurant that rented space in a building owned by the state of Delaware, confronted the Court squarely with the limitations on the Fourteenth Amendment guarantee of "equal protection of the laws" – erected by the so-called Civil Rights Cases of 1883, which held that the constitutional guarantee only applied against "state action." Cox persuaded the Court that the fact that the business was a state lessee as well as franchisee, was located in a parking complex developed by the state to promote business, and that the complex flew a Delaware flag in front of the building, all rendered the state a "joint participant" with the restaurant, sufficient to invoke the Fourteenth Amendment. The Court agreed. It was the beginning of the Court's dilution of the "state action" requirement in racial discrimination cases.
  By May 1961, the civil rights movement, led by James Farmer of CORE, initiated what would become a wave of non-violent confrontations against discrimination in public transit and other accommodations. The attorney general's office, under the personal supervision of Robert Kennedy, took active measures to protect the protestors in the face of local political and police indifference to or active complicity with violent resisters. Cox was regularly involved in meetings over day-to-day Justice Department activities, while at the same time he prepared to argue cases seeking to overturn state court convictions of civil rights protestors (under various statutes dealing with vagrancy, trespass and even parading without a permit.) Cox came into close contact with Robert Kennedy, and while the two had widely different styles (Kennedy was impulsive and somewhat cavalier of legal principles; Cox was cautious against making missteps that would set the movement back or commit the Court to a position on which it might lose its legitimacy), Cox grew to admire Kennedy. Prior to the Ole Miss riot the subject reluctantly gave counsel to the President. Impatient of a piecemeal approach, Robert Kennedy, but more importantly the civil rights community and particularly Jack Greenberg of the NAACP Legal Defense Fund, sought near elimination of the "state action" doctrine, arguing that restaurants were like "common carriers" subject to the Fourteen Amendment or that the mere act of enforcing a trespass law used to further private discrimination was itself sufficient "state action."
  Cox did not believe the Court would make so radical a break with eighty-year-old precedent. So in each case he argued on narrow grounds that did not require the Court to overrule the Civil Rights Cases, and each case he won on those grounds, in the process infuriating Jack Greenberg who was arguing in those very cases for the broader approach. The cautious approach, however, garnered Cox much credibility with the Court, which came to realize that he was not going to lead them into areas with uncertain future consequences. After a number of these cases, however, even the Court requested briefing in 1962 on the "state action" doctrine in Bell v. Maryland.  Cox took a slightly more advanced position, arguing that where trespass laws were used to prosecute civil rights demonstrators in states such as Maryland where there was a history of racial segregation by custom and law, then the discrimination was part of the enforcement sufficient to invoke state action. Although even this position disappointed 
caption: The Supreme Court as it was composed from October 13, 1958 to March 26, 1962. Top (l-r): Charles E. Whittaker, John M. Harlan, William J. Brennan, Jr., Potter Stewart. Bottom (l-r): William O. Douglas, Hugo L. Black, Earl Warren, Felix Frankfurter, Tom C. Clark.
exif: {}