Bell v. Maryland: Kenneth Mack challenges three common views

By Kali Borkoski
on Oct 26, 2013 at 5:48 pm

Last Wednesday evening, Justice Kagan hosted the Supreme Court Historical Society for the third of its four 2013 Leon Silverman lectures, whose theme this year is “Litigants in landmark Supreme Court cases of the 20^th century.”  The lecture, by Harvard Law School’s Kenneth Mack, focused on recently retired Chief Judge Robert Bell, the lead plaintiff in Bell v. Maryland, who was also in attendance.  In her introduction to the evening, Justice Kagan referred Bell to as a living legend, a description that one would be hard pressed to contest given the epic trajectory of his career.

In 1960, when Bell was sixteen, he and eleven other African-American high school students participated in a sit-in at Hooper’s Restaurant in Baltimore.  When they arrived, the hostess apologized that the establishment “hadn’t integrated yet,” and she asked them to leave.  After they refused, the restaurant had them arrested for trespassing.  Three years later, the case had made it way to the Supreme Court, which vacated the judgment against the students and remanded the case for further consideration in light of the “public accommodation laws” that Maryland had passed since the students’ arrest.  Those laws made it illegal for privately owned establishments to discriminate on the basis of race. The state’s highest court, the Maryland Court of Appeals, eventually reversed the students’ convictions. After attending college and Harvard Law School (where his case was on on the syllabus), Bell went on to serve on that very same court alongside his defense lawyer, the prosecutor who tried him, and several judges who were involved in his case.

Mack’s lecture, which will be printed in a forthcoming issue of the Journal of the Supreme Court History, outlined three common ways of viewing Bell’s case that he believes are incorrect:

1. Bell’s case can be resolved by the holding of the Civil Rights Cases — in which the Court deemed unconstitutional the Civil Rights Act of 1875, which provided for equal access to “the accommodations, advantages, facilities, and privileges of inns, public conveyances . . . applicable alike to citizens of every race and color, regardless of any previous condition of servitude” – or the text of the Fourteenth Amendment, both of which are often asserted to be the source of the state action doctrine.
2. The protesters were acting contrary to state trespass law, and a ruling in favor of their constitutional claims constitutes an infringement of settled property rights.
3. Bell should be regarded as a rebel, a protest leader whose claims were rejected by the Maryland courts but ultimately accepted in some form through his elevation to the Chief Judgeship.

The first proposition is flawed, Mack explained, because the modern state action doctrine is not what the Court announced in the Civil Rights Cases.

To support this argument, Mack gave a brief overview of the events and debate that preceded the Court’s decision in the Civil Rights Cases, which was authored by Justice Joseph Bradley. Of particular interest was Justice Bradley’s experience presiding over the Colfax Massacre appeal while riding circuit in 1873.  In the Colfax case, the idea of private discrimination being a federal crime, an issue that would return in Bell’s case, was “brushed aside.” According to Mack, Justice Bradley’s true concern during the Colfax case and again ten years later in the Civil Rights Act cases was federalism, not whether Congress’s reach extended beyond state acts of discrimination to individual acts of discrimination.

To the second proposition, Mack contends that – among other reasons –  because Maryland was debating a public accommodation law making discrimination on the basis of race illegal at the time of the sit-in, it was not at all clear whether Bell and the other students were in fact trespassing at the time of their arrest (a conundrum highlighted, he pointed out, by the hostess informing the students that Hooper’s hadn’t integrated “yet”).

Third and finally, Mack concluded that the Chief Judge should not be considered a rebel, because although he sometimes donned the trappings of a rebel, such as an afro and a zodiac medallion, Bell didn’t participate in any protests after Hooper’s. The error in the rebel hypothesis is further borne out, Mack explained (undaunted by his subject’s presence), by Bell’s actions later in life.  For example, Bell attended law school not because he was involved in a landmark Supreme Court case, but because he loved the show Perry Mason. And, Mack pointed out, it was only because of the alphabet that Bell was the named plaintiff to begin with. Had one of the students’ last names been Anderson, Bell wouldn’t have been as prominently associated with the case.

“Let me just answer this question,” the Chief Judge chimed in after Mack concluded his remarks. Chief Judge Bell affirmed that Mack’s view of his disposition was closer to reality than those that cast him as a rebel or protest leader.  The retired jurist deferred nearly all the credit to the Morgan State students who were organizing the protests and who had asked him, in his capacity as class president at Dunbar High School, to recruit high school students for the sit-ins. “We did something that was intended to be meaningful,” the Chief Judge told the audience, adding humbly that he was simply grateful for the opportunity to be part of it. “My role was a little more than the alphabet, I had to recruit the students, that’s what I want credit for, but that’s it.”

The next Leon Silverman lecture will be held on November 6. The topic is Tinker v. Des Moines Independent Community School District.