The Supreme Court struck down “separate but equal” schools in 1954, later calling upon the south to end school segregation “with all deliberate speed.” Segregationists soon responded by standing in schoolhouse doors, deploying the National Guard to keep black children out of historically white schools, and launching campaigns of “massive resistance” against the Constitution. Ten years after Brown, the justices complained that “[t]here has been entirely too much deliberation and not enough speed.” The Supreme Court was unable, on its own, to break the back of Jim Crow.
Just over a month after Justice Hugo Black warned of excessive deliberation, President Lyndon Johnson signed the first of two laws that would succeed where the Supreme Court failed. The Civil Rights Act of 1964 banned whites-only lunch counters and similar discrimination in hotels, restaurants and other “places of public accommodation.” It opened up public facilities to minorities and other disfavored groups. It created new opportunities for women and minorities at universities and other recipients of federal grants. And it banned employment discrimination on the basis of “race, color, religion, sex or national origin.” This law, along with the Voting Rights Act Johnson would sign a year later, finally breathed life into an constitutional promise of equality that the Supreme Court neutered decades before Brown. And the two laws together eventually rendered southern apartheid untenable.
Nearly half a century later, however, America has a very different Supreme Court than the one that decided Brown. Last week, five conservative justices tore out the backbone of the Voting Rights Act. One day earlier, they dealt two serious blows to civil rights in the workplace. And these later two decisions are part of a much bigger effort by the conservative justices to roll back workplace rights.
Meanwhile, at least one member of the Court — Justice Clarence Thomas — embraces a discredited reading of the Constitution that would completely gut the Civil Rights Act, strike down the federal ban on whites-only lunch counters and eliminate a similar ban on child labor to boot. And, while Sen. Rand Paul (R-KY) may be the only sitting senator with the audacity to openly attack the Civil Rights Act’s bans on private discrimination, conservative lawmakers eagerly embraced a legal assault on the Affordable Care Act that could have endangered the Civil Rights Act’s protections as well.
The lawyers challenging the Affordable Care Act initially charged that health reform was untenable because it “is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans,” but the same thing can be said about the Civil Rights Act, which banned business owners from refusing to do business with African-Americans. Admittedly, Obamacare’s opponents eventually came up with a customized, hyper-caveated legal rule that allowed a court to strike health reform and uphold the Civil Rights Act so long as its judges were willing to perform numerous legal backflips. But their broader vision of the Constitution, which insists that the Tenth Amendment must be read aggressively to preserve states rights that exist nowhere in the Constitution itself, closely resembles the vision that drove two unsuccessful legal attacks on the Civil Rights Act in the same year Johnson signed it into law.
In the years since President Obama took office, the consensus in the United States that the power to regulate American business and American workers should rest with elected officials, and not unelected judges, has broken down. Moreover, the Roberts Court is more aggressive in reading its ideological preferences into such laws than any Court since before the Great Depression. For these reasons, Americans’ civil rights are now in greater jeopardy than at any point since President Johnson signed his two great civil rights laws nearly 50 years ago.