Editing Archibald Cox (section)

==Advisor to Senator Kennedy and role in the Kennedy administration==

===Kennedy advisor, then partisan===

====Kennedy's labor expert====
In 1953 the young and ambitious [[John F. Kennedy]], new to the Senate, decided that labor relations would be the area that he would specialize in to begin building a policy and legislative resume for use in future political endeavors. He wrote to Cox in March 1953 inviting him to testify before the Senate Committee on Labor and Public Welfare.{{sfn|Gormley|1997|p=98}} Cox was a natural ally to seek out. He was one of Kennedy's constituents and a fellow Harvard alumnus. More importantly, he was a nationally recognized academic expert on labor law and a liberal Democrat{{efn|Professor Cox in 2000 was not certain when he had registered as a Democrat. He thought it "may have just been in connection with working with Kennedy and thinking it would be well advised."{{sfn|Hilbink|2000|p=1:62}} He once revealed that he had voted in an election for Democrat [[Adlai Stevenson II|Adlai Stevenson]] for president, Republicans [[Henry Cabot Lodge Jr.]] for Senator and [[Christian Herter]] for Governor.<ref name="ProfDemand">{{cite news|url=https://www.nytimes.com/1960/04/06/archives/professor-in-demand-archibald-cox.html|title=Professor in Demand: Archibald Cox|work=New York Times|date=April 6, 1960|page=31|access-date=April 20, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180322155136/https://www.nytimes.com/1960/04/06/archives/professor-in-demand-archibald-cox.html|archive-date=March 22, 2018|url-status=live|df=mdy-all}}</ref> Lodge's opponent in that race was John F. Kennedy.}} with a predisposition towards labor.

In the fall of 1959, after the work on the Landrum–Griffin Act had wound up, Kennedy confided to Cox that he was running for president.{{sfn|Gormley|1997|p=112}} In January 1960, he wrote Cox formally asking him to head up his efforts to "tap intellectual talent in the Cambridge area" and then "ride herd over twenty or thirty college professors" in their activities for him.{{efn|[[Abram Chayes]] claimed that it was his idea to select Cox for this purpose and so told Sorensen "a couple of months" before 1960.{{sfn|Chayes|1964|pp=52–53}}{{sfn|Gormley|1997|p=115}} Much as he did with the informal group of advisors whom Cox recruited and led for the initial advice on the McClellan Hearings, Kennedy never made explicit what activities he wanted the group to perform, although he was clear to both Cox and those experts he met that he did not expect them to consider political implications in delivering their opinion on sound policy.{{sfn|Hilbink|2000|p=1:72}} Cox later found out that the position had been originally offered to Harvard law professor [[Mark De Wolfe Howe (historian)|Mark Howe]], who turned it down, thinking he was not suited for the role, and recommended Cox.<ref>{{harvnb|Hilbink|2000|pp=1:70–71}}; {{harvnb|Gormley|1997|p=115}}.</ref>}} Cox brought a number of eminent policy experts in a number of fields into contact with Kennedy. Although many were skeptical of his candidacy and some had been loyal to or inclined towards either [[Adlai Stevenson II|Adlai Stevenson]] or [[Hubert Humphrey]], Kennedy won them over at a meeting in Boston's Harvard Club on January 24.{{efn|''See'' {{harvnb|Gormley|1997|p=116}}. The attendees included, from MIT: [[Jerome Wiesner]], [[Walt Whitman Rostow|Walt W. Rostow]], [[Paul Samuelson]], [[Lucian Pye]] and [[Walter A. Rosenblith]]; from Harvard Law School: Mark Howe, [[Paul Freund]] and [[Abram Chayes]]; and from Brandeis: [[Edward L. Katzenbach, Jr.]]{{sfn|Gormley|1997|p=485 n.22}}}} In the period leading up to the [[1960 Democratic National Convention|Democratic Convention]] in July, Cox acted mainly as a "stimulator" to prod various academics to send memoranda to Kennedy or to find academics to supply Kennedy with policy positions on specific topics.{{sfn|Hilbink|2000|pp=1:72–73}} While before the Convention, Cox had not recruited extensively beyond the Boston area, he had at least one recruit from the University of Colorado and recruited from [[Stanford University|Stanford]].{{sfn|Lester|1964|p=47}} as well. Even though the number was not large before the nomination, no other Democratic contender, not even Stevenson, had made an effort to recruit intellectual partisans.{{sfn|Lester|1964|pp=42–45}}

[[File:Archibald Cox in 1960.jpg|thumb|left|Archibald Cox in April 1960]]
As with the case of Cox's informal group of labor advisors, Kennedy was anxious to use Cox's contacts not only for their expertise but also for the éclat they gave his campaign. A ''Congressional Quarterly'' article in April, widely reprinted in local papers, named Cox and the other Cambridge advisors as a key to the kinds of policies Kennedy would advocate.<ref>One of the many papers that reprinted the report: {{cite news|url=https://www.newspapers.com/clip/4766714/jefferson_city_posttribune/|title=Presidential Candidates Rely on 'Brain Trusts' for Advice|work=Jefferson City [Mo.] Post-Tribune|date=April 26, 1960|page=5|access-date=March 29, 2016|archive-url=https://web.archive.org/web/20160413211132/https://www.newspapers.com/clip/4766714/jefferson_city_posttribune/|archive-date=April 13, 2016|url-status=live|df=mdy-all}}</ref> "Of John F. Kennedy's political talents none has been more helpful to him than his ability to attract capable men to his cause," the ''Times'' said in the middle of the convention.<ref>{{cite web|url=https://www.nytimes.com/1960/07/14/archives/kennedys-nomination-drive-aided-by-mixture-of-amateurs.html|title=Kennedy's Nomination Drive Aided by Mixture of Amateurs, Professionals, Eggheads and Hardheads|work=New York Times|date=July 14, 1960|access-date=March 23, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180727115202/https://www.nytimes.com/1960/07/14/archives/kennedys-nomination-drive-aided-by-mixture-of-amateurs.html|archive-date=July 27, 2018|url-status=live|df=mdy-all}}</ref> The description of Cox's academic advisers was designed to recall Roosevelt's "[[Brain trust#Roosevelt.27s .22Brain Trust.22|Brain Trusts]]": "More ideas poured in from Cambridge, Mass., where an astounding galaxy of scholars had made themselves an informal brain-trust for Senator Kennedy."

After the Los Angeles Convention Kennedy, now the nominee, asked Cox to move to Washington to have an expanded role, hiring speechwriters and coordinating academic talent. Cox accepted, and then Kennedy point blank asked Cox if he thought he could get along with [[Ted Sorensen]] and explained "Sorensen's fear that somebody was going to elbow his way in between him and Kennedy."{{sfn|Hilbink|2000|p=1:74}} Cox assumed he could.{{sfn|Gormley|1997|p=122}} Cox had been unaware that Sorensen had already been at work, back in February, trying to compartmentalize and minimize Cox' group's efforts. Sorenen told [[Joseph A. Loftus]] of the ''Times'' that the Cambridge group was "something 'much more talked about than fact.'"<ref>{{cite news|url=https://www.nytimes.com/1960/02/08/archives/diverse-staffs-assist-kennedy-some-work-for-candidate-others-for.html|last=Loftus|first=James A.|title=Diverse Staffs Assist Kennedy|work=New York Times|date=February 8, 1960|page=25|access-date=March 28, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180725215107/https://www.nytimes.com/1960/02/08/archives/diverse-staffs-assist-kennedy-some-work-for-candidate-others-for.html|archive-date=July 25, 2018|url-status=live|df=mdy-all}}</ref> Cox would soon discover, however, that Sorensen always "was terribly worried about being cut out" and protected Kennedy from independent advice, including Cox'.{{sfn|Hilbink|2000|p=1:66}}

===Solicitor General of the United States===
[[File:Cox, Hoover, RFK.jpg|right|thumb|FBI Director J. Edgar Hoover, Attorney General Robert F. Kennedy and Solicitor General Archibald Cox in the White House Rose Garden on May 7, 1963.]]
After Kennedy's election in 1960, despite publicly downplaying the idea that he was being considered for public office,<ref>{{cite news|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/hlrec31&size=2&collection=journals&set_as_cursor=29&id=168|title=Professor Cox Back at the Law School, Resumes Teaching|work=Harvard Law Record|volume=31|number=11|date=December 8, 1960|page=8|access-date=April 15, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160507040742/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals%2Fhlrec31&size=2&collection=journals&set_as_cursor=29&id=168|archive-date=May 7, 2016|url-status=live|df=mdy-all}}</ref> Cox was concerned he might be offered a seat on the NLRB or a second echelon position in the [[United States Department of Labor|Department of Labor]]. Neither position offered new challenges for him, but he worried about the propriety of refusing.{{sfn|Hilbink|2000|p=1:78}} Before leaving for his family Christmas celebration in Windsor, Cox was tipped off by [[Anthony Lewis]] of the ''Times'' that he had been chosen for Solicitor General. Cox decided that if this was true, he would tell the president-elect that he needed time to think the matter over. But when Kennedy called, interrupting a family lunch, he accepted immediately.{{sfn|Gormley|1997|p=143}} Cox was unaware until much later that his law school colleague, [[Paul Freund]], whom he had recommended for the position, declined and recommended Cox in turn.<ref>{{harvnb|Gormley|1997|p=141}}; {{harvnb|Hilbink|2000|pp=2:117–118}}.</ref> Next month, Cox appeared before the Senate Judicial Committee for confirmation hearings, but his reputation was such that the hearing took only ten minutes; even minority leader Dirksen, who knew Cox from Landrum–Griffin days, said he "had been quite impressed with his legal abilities … ."<ref>{{harvnb|Gormley|1997|p=146}}; {{cite book|last=Salokar|first=Rebecca Mae|title=The Solicitor General: The Politics of Law|location=Philadelphia, Pennsylvania|publisher=Temple University Press|year=1992|isbn=0877229260|page=[https://archive.org/details/solicitorgeneral00salo/page/38 38]|url=https://archive.org/details/solicitorgeneral00salo/page/38}}</ref>

In the nearly century-long period that the office had existed before Cox occupied it, the solicitor general, as the government's lawyer before the Supreme Court, was immensely influential. Cox held the position at a time when the [[Warren Court]] was about to involve the Court in issues never before considered appropriate for judicial review, at a time when the country was ready for the Court to decide various questions of social justice and individual rights. Cox was aware of the pivotal time the Court and he faced and explained it in an address right before the beginning of the first full Term he would argue in:
	
{{Blockquote|text=[A]n extraordinarily large proportion of the most fundamental issues of our times ultimately go before the Supreme Court for judicial determination. They are the issues upon which the community, consciously or unconsciously, is most deeply divided. They arouse the deepest emotions. Their resolution—one way or the other often writes our future history. … Perhaps it is an exaggeration to suggest that in the United States we have developed an extraordinary facility for casting social, economic, philosophical, and political questions in the form of actions at law and suits in equity, and then turning around and having the courts decide them upon social, economic, and philosophical grounds. It is plainly true that we put upon the Supreme Court the burden of deciding cases that would never come before the judicial branch in any other country.{{sfn|Cox|1961|p=94}}}}

====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.

====Reapportionment cases====
The cases that troubled Cox the most during his tenure, and the area where he differed widest from Robert Kennedy, involved malapportionment of voting districts. Over the years failure to re-allocate voting districts particularly in state legislatures, produced wildly disproportionate districts, with rural areas having many fewer voters than urban districts as a result of the urbanization of America.{{efn|In 1962 more than half the states had failed to re-apportion legislative districts for more than a quarter of a century.{{sfn|Schlesinger|1978|p=1:413}}}} The result was dilution of the urban vote with policy resulting accordingly; rectification would benefit Democrats politically, while malapportionment stood as an obstacle to legislation that improved the lot of city-dwellers, minorities and the poor.<ref>{{cite journal|last=Terris|first=Bruce J.|title=Attorney General Kennedy versus Solicitor General Cox: The Formulation of the Federal Government's Position in the Reapportionment Cases|journal= Journal of Supreme Court History|volume=32|number=3|pages=335–345|date=November 2007|doi=10.1111/j.1540-5818.2007.00171.x|s2cid=145128085 }}<!--|access-date=March 31, 2016--></ref> The problem was that Justice Frankfurter had written in a plurality decision in 1946 that such issues amounted to a [[political question]]—a matter not appropriate for the Court to resolve.{{efn|Frankfurter's decision in'' [[Colegrove v. Green]]'', 328 U.S. 549 (1946), was joined in by only two other justices. The two others making the majority decided on other grounds.}} On the other hand, given that political interests were entrenched, and those with disproportionate power were not likely to give up their greater share, a political solution was unlikely. But a case surfaced from Tennessee that seemed ideal to test that ruling. Tennessee had not reapportioned its legislature since 1910 and, as a result, there were urban districts that had eleven times the citizens of rural districts. Cox decided to submit an ''[[amicus curiae]]'' brief supporting the plaintiffs in ''[[Baker v. Carr]]''. The case was argued once in April 1961 and re-argued in October. In between Cox was subjected to an unpleasant onslaught by Frankfurter at a public dinner and relentless questions in the October argument.{{sfn|Gormley|1997|pp=165–168}} When the decision was announced, however, Frankfurter was joined by only Harlan; the result was 6–2.<ref>''[[Baker v. Carr]]'', 369 U.S. 186 (1962)</ref>

The first case proved far easier than Cox expected.{{efn|It also became, to Warren's mind on his retirement, the single most important contribution to Constitutional law during his tenure: "I think ''Baker v. Carr'' was the most important case that we decided in my time, because that gave to the courts the power to determine whether or not we were to have fair representation in our governmental system, and ''Reynolds v. Simms'' [377 U.S. 533 (1964)] was merely the application of that principle."{{sfn|Lake|1969|p=130}}}} The holding was relatively narrow, simply providing federal court jurisdiction, and followed the points in Cox's brief.<ref>{{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/cwrlrv62&start_page=1109&collection=journals&set_as_cursor=0&men_tab=srchresults&id=1147|last=Solimine|first=Michael E.|title=Congress, the Solicitor General, and the Path of Reapportionment Litigation|journal=Case Western Reserve Law Review|volume=62|number=4|date=Summer 2012|pages=1109–1152, 1121|access-date=March 31, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160625044130/http://heinonline.org/HOL/Page?handle=hein.journals%2Fcwrlrv62&start_page=1109&collection=journals&set_as_cursor=0&men_tab=srchresults&id=1147|archive-date=June 25, 2016|url-status=live|df=mdy-all}}</ref> But Cox had much more difficulty with the follow-up cases, because he could not persuade himself that history or legal theory would demand a one-man-one-vote standard in all cases. He developed what he later called a "highly complex set of criteria," but in the end when the Court finally erected the one-man-one-vote standard it simply made the general rule subject to all the exceptions that Cox had tried to weave into his proposed standards. As Chief Justice Warren's clerk later told him "all the Chief did was take your brief and turn it upside down and write exceptions to the one-person one-vote that covered all the cases that you had attempted to exclude by this complicated formula.".{{sfn|Hilbink|2000|pp=2:168–169}} The case was ''[[Reynolds v. Sims]]'', 377 U.S. 533 (1964), holding that election districts must be roughly proportional to population.

====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" />