Editing Archibald Cox (section)

====After Kennedy====
According to columnist [[William V. Shannon]], President Kennedy had planned to appoint Cox to the next opening on the Supreme Court.<ref>"Capital Notes", New York Post, Dec. 5, 1963</ref> After Kennedy's assassination, Deputy Attorney General [[Nicholas Katzenbach]] became Cox's direct superior. The first request of the acting Attorney General was that Cox accompany him to see the chief justice and request him to head a commission to investigate the circumstances surrounding the assassination of President Kennedy. Cox was reluctant, believing that Warren should refuse the request, because it would have adverse impact on the Court. He agreed but asked that Katzenbach not have him try to persuade the chief justice. In the end Warren declined the request, and the two Justice employees left.{{sfn|Gormley|1997|pp=184–186}} Within an hour President  [[Lyndon Johnson|Johnson]] called Warren, who capitulated. Warren said in 1969 that because of it, it became "the unhappiest year of my life."{{sfn|Lake|1969|pp=SM133-34}}

The civil rights legislation that Kennedy was unable to see pass during his lifetime received the needed momentum from his death and the legislative skill of President Johnson. In 1964 the public accommodations bill passed as the [[Civil Rights Act of 1964]]. The obvious constitutional attack on the legislation was its constitutionality under the Fourteenth Amendment because it sought to regulate conduct that was not "state action." Cox and Assistant Attorney General and Head of the Civil Rights Division [[Burke Marshall]], however founded the legislation on Congress's [[Commerce Clause|power to regulate interstate commerce]]. Although both John and Robert Kennedy questioned the optics of using the Commerce Clause, they did not object.{{sfn|Marshall|1970|p=5}}Cox had no difficulty having the Court uphold the statute on that basis when he argued the cases in October.{{efn|''See'' ''[[Heart of Atlanta Motel v. United States]]'', 379 U.S. 241 (1964) and ''[[Katzenbach v. McClung]]'', 379 U.S. 294 (1964). There was no dissent in either case.}}

After a landslide election victory, Johnson used his State of the Union address in January 1965 to, among other things, promise a voting rights act.<ref>{{cite web|url=http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650104.asp|archive-url=https://web.archive.org/web/20020416162913/http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650104.asp|url-status=dead|archive-date=April 16, 2002|title=Annual Message to the Congress on the State of the Union|date=January 4, 1965|publisher=LBJ Presidential Library Website|access-date=April 18, 2014}}</ref> It was Cox who developed the first draft. The mechanism devised by Cox was to provide for a presumption of illegality of a list of practices including literacy tests and similar devices if the state had a history of low minority voter turn-out as shown by voter statistics. In such cases the burden was shifted to the state to prove nondiscriminatory intent. This mechanism remained the heart of the legislation throughout the legislative process. Both Ramsey Clark and Nicholas Katzenbach admired the mechanism for its legal craftsmanship and statecraft (because it avoided the need to prove intent to discriminate).{{sfn|Gormley|1997|pp=190–191}} Before the bill was submitted to Congress Cox answered a question in Court that was used by nationally syndicated columnist [[Drew Pearson (journalist)|Drew Pearson]] to embarrass Cox before the new president. On January 28, Cox urged the Supreme Court to reverse a lower court decision that held that the federal government had no power to sue a state alleging violation of the Fifteenth Amendment by discriminatory devices aimed at African-Americans. Cox argued the narrow ground that the government had such power. When the Court expressly asked Cox whether he was asking the Court to strike down the statutes, Cox answered that he was not, only that the case be remanded to the three-court panel. The Court's opinion, delivered on March 8, highlighted this exchange in such a way that some inferred that Cox passed up a golden opportunity.{{efn|"While the Government has argued that several provisions of the Mississippi laws challenged here might or should be held unconstitutional on their face without introduction of evidence or further hearings, with respect to all the others, the Solicitor General in this Court specifically has declined to 'urge that the constitutionality of these provisions be decided prior to trial.' In this situation, we have decided that it is the more appropriate course to pass only upon the sufficiency of the complaint's allegations to justify relief if proved." ''United States v. Mississippi'', 380 U.S. 128, 143 (1965) (Black, J.).}} Pearson's column stated that Cox had cost the civil rights movement two years in litigation, and for that he point blank suggested that Johnson replace Cox as solicitor general.<ref>For one of the papers the column appeared in, ''see'' {{cite news|url=https://www.newspapers.com/clip/4987587/pearson_criticizes_cox_for_narrow/|last=Pearson|first=Drew|title=Chance to Kill Dixie Voting Law Muffed|work=Hagerstown, Md. Morning Herald|date=March 13, 1965|page=5|access-date=April 18, 2016|via=newspapers.com|archive-url=https://web.archive.org/web/20160506235924/https://www.newspapers.com/clip/4987587/pearson_criticizes_cox_for_narrow/|archive-date=May 6, 2016|url-status=live|df=mdy-all}}</ref>

The Voting Rights Act of 1965 mooted that case, and Cox would go on to defend the legislation successfully before the Court,<ref>''[[South Carolina v. Katzenbach]]'', 383 U.S. 301 (1966)</ref> but he did so as a private attorney.{{efn|Cox represented the Commonwealth of Massachusetts, which supported the Act.}} In the summer after Johnson's victory Cox offered his resignation in order that Johnson might pick his own Solicitor General if he chose. Although Cox dearly loved the job,{{efn|Cox was quoted as saying: "My whole life and career has trained me to look upon the Solicitor's office as second only to God."{{sfn|Navasky|1971|p=281}} Years later, after arguing the [[Regents of the University of California v. Bakke|''Bakke'']] case in 1977, Cox told a reporter from the ''Boston Globe'': "There's nothing quite like being back before the Supreme Court."<ref name="Gormley 1997 405">{{harvnb|Gormley|1997|p=405}}</ref>}} he overrode Katzenbach's strong objections to his decision. Johnson accepted the resignation on June 25, 1965.{{sfn|Gormley|1997|pp=193–194}}

Chief Justice Warren was "non-plussed and made unhappy by the news" that Cox was not reappointed.<ref name="Gormley 1997 195">{{harvnb|Gormley|1997|p=195}}</ref> Senator Kennedy delivered a tribute from the well of the Senate.<ref>{{cite news|url=https://www.nytimes.com/1965/07/14/archives/appointment-assailed.html|last=UPI|title=Appointment Assailed|work=New York Times|date=July 14, 1965|page=21|access-date=April 25, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180725215626/https://www.nytimes.com/1965/07/14/archives/appointment-assailed.html|archive-date=July 25, 2018|url-status=live|df=mdy-all}}</ref> Even years later his colleagues in the Justice Department praised his service. [[John W. Douglas]], for example, said "he was the best solicitor general that the department's ever had … ."{{sfn|Douglas|1970|p=17}} [[John Seigenthaler]] likewise found him "great."{{sfn|Seigenthaler|1966|p=474}} Students of the office have agreed. [[Lincoln Caplan]] called him one of the three most respected Solicitors General in history (together with [[Robert H. Jackson]] and [[John W. Davis]]).{{sfn|Caplan|1987|p=10}} Bruce Terris, who was Assistant Solicitor General in three administrations, said that he "was the best oral advocate I ever saw. … He had the ability to do something I had never seen anybody ever having the ability to do, and I suspect very few people ever had, and that was he had the ability to lecture the Supreme Court. "{{sfn|Terris|2015|pp=4–5}} Even critic Victor Navasky wrote that Cox was "by general agreement one of the most distinguished Solicitors General in the history of the office … ."<ref name="Navasky 1971 280">{{harvnb|Navasky|1971|p=280}}</ref> As Solicitor General Cox personally argued 67 cases before the Court, prevailing in 81%.{{sfn|Gormley|1997|p=505, n. 60}} A study of the eight Solicitors General between 1953 and 1982 found that Cox was the most liberal, filing liberal briefs in 77% of the cases.{{sfn|Clayton|1992|p=60}} Supreme Court litigation was his metier, so much so that he would continue to do it in the future even (or especially) when he received no fee.

In 1965, Cox returned to Harvard Law School as a visiting professor, teaching a course in current constitutional law and a section in criminal law.<ref>{{cite news|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/hlrec41&size=2&collection=journals&set_as_cursor=44&id=23|last=Joseph|first=Daniel M.|title=Prof. Cox Tells of High Court Advocacy|work=Harvard Law Record|date=October 7, 1965|volume=41|number=2|page=7|access-date=April 18, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160512191616/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals%2Fhlrec41&size=2&collection=journals&set_as_cursor=44&id=23|archive-date=May 12, 2016|url-status=live|df=mdy-all}}</ref>

In 1969, the Legal Services Program (LSP) would bring [[Shapiro v. Thompson]] to the Supreme Court after successful arguments in the District court of Connecticut. The first set of oral arguments before the Supreme Court happened on May 1, 1968. Cox would become the primary counsel for Thompson during the rehearing on the 23-24th of October 23-24th 1968. Edward Sparer, considered the 'father of welfare law'<ref>Davis, Martha F. (1993). Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973. Yale University Press.</ref> personally brought in Cox as the lead attorney for the rehearing in 1968.<ref name=":15">Kornbluh, Felicia. The Battle for Welfare Rights : Politics and Poverty in Modern America. Philadelphia: University of Pennsylvania Press, 2007. pp.51.</ref> Jacqueline Jones, a social historian, articulates that Archibald Cox's involvement with this case was coordinated. Sparer brought in Cox's legal assistance as he was the solicitor general, well-respected, and a recognized face by the Warren Court.<ref>Jones, Jacqueline. ''Labor of Love, Labor of Sorrow : Black Women, Work, and the Family from Slavery to the Present''. New York: Basic Books, 1985. pp.103-104.</ref> Shapiro v. Thompson was affirmed and Cox's oral argument that welfare was a fundamental right was key to Justice Brennan's majority opinion.<ref name=":0">Lampo, Jordan (2023). "The Last Days of the Warren Court: How Justice Brennan Orchestrated Shapiro v. Thompson (1969)". ''Journal of Supreme Court History''. '''48''' (1): 75–94. [[Doi (identifier)|doi]]:10.1353/sch.2023.a897339. [[S2CID (identifier)|S2CID]]&nbsp;259331779. [[Project MUSE (identifier)|Project&nbsp;MUSE]]&nbsp;897339.</ref> This case would also contribute to Justice Warren's "unhappiest year"{{sfn|Lake|1969|pp=SM133-34}} in 1969, as this case caused direct conflict between Justices Brennan and Warren.<ref>Tushnet, Mark; Tushnet, Mark (1993). "William J. Brennan and the Warren Court". In Robert C. Post (ed.). The Warren Court in Historical and Political Perspective. Charlottesville, NC: University Press of Virginia. pp. pg. 123-136.</ref><ref name=":0" />