Editing Archibald Cox (section)

====Civil rights and sit-in cases====
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 Hirsh Davis|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]]''.<ref>365 U.S. 715 (1961).</ref> 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 to the United States Constitution|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."<ref>For an examination of the state of constitutional jurisprudence on "state action" at the time that Cox became Solicitor General, ''see'' {{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/tndl34&start_page=303&collection=journals&set_as_cursor=2&men_tab=srchresults&id=311|last=Peters|first=Roger Paul|title=Civil Rights and State Non-Action|journal=Notre Dame Lawyer|date=May 1959|pages=303–334|access-date=March 30, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160415000129/http://heinonline.org/HOL/Page?handle=hein.journals%2Ftndl34&start_page=303&collection=journals&set_as_cursor=2&men_tab=srchresults&id=311|archive-date=April 15, 2016|url-status=live|df=mdy-all}}</ref> 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.{{sfn|Gormley|1997|pp=149–151}} The Court agreed. It was the beginning of the Court's dilution of the "state action" requirement in racial discrimination cases.<ref>''See'' {{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/hascq4&start_page=1&collection=journals&set_as_cursor=11&men_tab=srchresults&id=19|last=Goldstein|first=Leslie Friedman|title=Death and Transfiguration of the State Action Doctrine—Moose Lodge v. Irvis to Runyon v. McCrary|journal=Hastings Constitutional Law Quarterly|volume=8|number=2|date=Winter 1981|pages=1, 3|access-date=March 30, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160414203658/http://heinonline.org/HOL/Page?handle=hein.journals%2Fhascq4&start_page=1&collection=journals&set_as_cursor=11&men_tab=srchresults&id=19|archive-date=April 14, 2016|url-status=live|df=mdy-all}}  Cox also discusses this trend in {{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/hlr80&start_page=91&collection=journals&set_as_cursor=1&men_tab=srchresults&id=141|title=Foreword: Constitutional Adjudication and the Promotion of Human Rights|journal=Harvard Law Review|volume=80|number=1|date=November 1966|pages=91, 102|access-date=March 30, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160414195921/http://heinonline.org/HOL/Page?handle=hein.journals%2Fhlr80&start_page=91&collection=journals&set_as_cursor=1&men_tab=srchresults&id=141|archive-date=April 14, 2016|url-status=live|df=mdy-all}}</ref>

[[File:US Supreme Court 1958-62.jpg|thumb|left|The Supreme Court as it was composed from October 13, 1958, to March 26, 1962. Top (l-r): [[Charles E. Whittaker]], [[John Marshall Harlan II|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]].]]
By May 1961, the civil rights movement, led by [[James Farmer]] of [[Congress of Racial Equality|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.<ref>For a description of the Justice Department's efforts to protect protestors and employ legal measures to promote voting rights and integration of facilities, see {{harvnb|Schlesinger|1978|p=1:329}}</ref> 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 vastly 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.{{sfn|Gormley|1997|pp=151–152}} Prior to the [[Ole Miss riot of 1962|Ole Miss riot]] the subject reluctantly gave counsel to the President.{{sfn|Gormley|1997|pp=162–163}} Impatient of a piecemeal approach, Robert Kennedy, but more importantly the civil rights community and particularly [[Jack Greenberg (lawyer)|Jack Greenberg]] of the [[NAACP Legal Defense and Educational Fund|NAACP Legal Defense Fund]], sought near elimination of the "state action" doctrine, arguing that restaurants were like "common carriers", subject to the Fourteenth Amendment or that the mere act of enforcing a trespass law, used to further private discrimination, was itself sufficient "state action."{{efn|The former argument found some support in ''[[Boynton v. Virginia]]'', 364 U.S. 454 (1960), which vacated a trespass conviction of an African American eating in a "whites only" facility of a bus station. But that decision was based on the [[Interstate Commerce Act]], which banned segregation (and itself was based on the Commerce Clause and not the Fourteenth Amendment). The second theory had some support in ''[[Shelley v. Kraemer]]'', 334 U.S. 1 (1948), which made racially discriminatory real estate covenants illegal on the ground that court enforcement of them sufficiently intertwined the state in private discrimination as to amount to "state action." The arguments pressed on Cox, however, went well beyond those precedents in Cox' opinion, however much he agreed with the policy outcome.{{sfn|Hilbink|2000|pp=1:95–97}}}}

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.<ref>{{harvnb|Gormley|1997|pp=158–159}}; {{harvnb|Hilbink|2000|pp=1:97–100}}.</ref> 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.{{sfn|Gormley|1997|p=159}} 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 civil rights activists and the Justice Department, it prevailed, but in the face of three dissents (including that of Justice Black), suggesting that a broader rule might have been rejected by a majority.<ref>{{harvnb|Gormley|1997|pp=159–160}}; {{harvnb|Hilbink|2000|p=1:98}}.</ref> The issue would be mooted by legislation dealing with "public accommodations", which Cox helped draft and defended before the Court in 1965.