Twins at Birth: Civil Rights and the Role of the Solicitor General

Indiana Law Journal

Volumn 75, Issue 4, 2000, Pages 1297-1315

  Waxman, Seth P ^a  

^a NONE

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EID: 0034375749     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (102)

1. 5 U.S. (1 Cranch) 137 (1803).
2. See Act of June 22, 1870, ch. 150, 16 Stat 162. The Fifteenth Amendment was ratified in 1870. The Thirteenth and Fourteenth Amendments were ratified in 1865 and 1868, respectively.
3. 28 U.S.C. § 505 (1994).
4. See 28 C.F.R. § 0.20 (1999).
5. 163 U.S. 537 (1896).
6. I am not at all certain how, or whether, to fix an end date for what I am calling this "second epoch." Persuasive points can be made in support of contentions that it closed with the passing of the Warren Court, or the Burger Court, or even that it continues, in some manifestations, to this day. Only the passage of time will show which, if any, of those periodizations is appropriate. For now, we remain, in Bruce Ackerman's metaphor, too close to the mountains to describe their outline in any comprehensive way: Think of the American Republic as a railroad train, with the judges sitting in the caboose, looking backward. What they see are the mountains and valleys of our dualistic constitutional experience . . . . As the train moves forward in history, it is harder for the judges to see the traces of volcanic ash that marked each mountain's emergence onto the legal landscape. At the same time, a different perspective becomes available: As the more recent eruptions move further into the background, it becomes easier to see that there is now a mountain range out there that can be described in a comprehensive way. Bruce Ackerman, Constitutional Policy/Constitutional Law, 99 YALE L.J. 453, 546 (1989).
7. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93.
8. Letter from Edmund Randolph, Attorney General, to George Washington, U.S. President (Dec. 26, 1791), reprinted in 1 AMERICAN STATE PAPERS (MISC.) 46 (1834).
9. Over the years Congress gradually granted the Attorney General both some measure of control over the litigating efforts of the federal government and some supporting personnel to aid in the achievement of that objective. But such provisions came slowly. Indeed, it was not until 1818 that Congress first gave the Attorney General a single clerk and permanent office space. See Act of Apr. 20, 1818, ch. 87, § 6, 3 Stat. 445, 447. And it was not until 1861 that the Attorney General was given control over the federal district attorneys across the country. See Act of Aug. 2, 1861, ch. 37, 12 Stat. 285, 285-286; HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE: CHAPTERS IN THE HISTORY OF JUSTICE AND THE FEDERAL EXECUTIVE 142, 218,491 (1937). But throughout the antebellum period, principal officers in other federal departments retained the authority to direct litigation concerning their departments, independent of the Attorney General. That authority included the power to direct the work of district attorneys, long before the Attorney General had any comparable authority. See Seth P. Waxman, "Presenting the Case of the united States As It Should Be": The Solicitor General in Historical Context, 1998 J. SUP. CT. HIST. SOC'Y 3, 7.
10. Over the years Congress gradually granted the Attorney General both some measure of control over the litigating efforts of the federal government and some supporting personnel to aid in the achievement of that objective. But such provisions came slowly. Indeed, it was not until 1818 that Congress first gave the Attorney General a single clerk and permanent office space. See Act of Apr. 20, 1818, ch. 87, § 6, 3 Stat. 445, 447. And it was not until 1861 that the Attorney General was given control over the federal district attorneys across the country. See Act of Aug. 2, 1861, ch. 37, 12 Stat. 285, 285-286; HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE: CHAPTERS IN THE HISTORY OF JUSTICE AND THE FEDERAL EXECUTIVE 142, 218,491 (1937). But throughout the antebellum period, principal officers in other federal departments retained the authority to direct litigation concerning their departments, independent of the Attorney General. That authority included the power to direct the work of district attorneys, long before the Attorney General had any comparable authority. See Seth P. Waxman, "Presenting the Case of the united States As It Should Be": The Solicitor General in Historical Context, 1998 J. SUP. CT. HIST. SOC'Y 3, 7.
11. See CONG. GLOBE, 40th Cong., 2d Sess. 196 (1867); CUMMINGS & MCFARLAND, supra note 9, at 222.
12. See S. EXEC. DOC. No. 40-13, at 2 (1867).
13. Id. 13. CONG. GLOBE, 41st Cong., 2d Sess. 3035 (1870).
14. See ROSS A. WEBB, BENJAMIN HELM BRISTOW: BORDER STATE POLITICIAN 50-70 (1969).
15. Id. at 70.
16. IND. CONST. art. XIII, §§ 1-2 (repealed) (invalidated as violating the federal Constitution in Smith v. Moody, 26 Ind. 299 (1866)); see also infra text accompanying note 24.
17. Act of Apr. 9, 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981-1982, 1987-1989 (1994)).
18. Act of May 31, 1870, ch. 114, 16 Stat. 140 (repealed 1894).
19. Act of Apr. 20, 1871, ch. 22, 17 Stat. 13 (current version at 42 U.S.C. § 1985 (1994)).
20. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (declared unconstitutional in The Civil Rights Cases, 109 U.S. 3 (1883)).
21. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. at 27 (current version at 42 U.S.C. § 1982 (1994)).
22. The likelihood of jury verdicts in favor of the government diminished even further when former Confederates were allowed back on federal juries in 1879. Before that, federal jurors were required to swear that they had always remained loyal to the Union. This presumably disqualified a number of those prospective jurors who were most irrevocably opposed to black civil rights.
23. 27 F. Cas. 785 (C.C.D. Ky. 1866) (No. 16, 151).
24. See Smith v. Moody, 26 Ind. 299 (1866).
25. WEBB, supra note 14, at 60 (alteration and omission added) (quoting Letter from Benjamin Helm Bristow, Solicitor General, to E. Rockwood Hoar, Attorney General (Nov. 9, 1869)).
26. 80 U.S. 581, 595 (1872). For a discussion of Bristow's prosecution of the case at the trial level, see WEBB, supra note 14, at 58-60.
27. See Blyew, 80 U.S. at 595.
28. The case is unreported, but is discussed in CUMMINGS & MCFARLAND, supra note 9, at 235-37, JAMES WILFORD GARNER, RECONSTRUCTION IN MISSISSIPPI 351-52 (1901), and WEBB, supra note 14, at 88.
29. S. REP. NO. 42-41, at 936 (1872).
30. See GARNER, supra note 28, at 352; WEBB, supra note 14, at 88.
31. See GARNER, supra note 28, at 351-52; WEBB, supra note 14, at 88.
32. See WEBB, supra note 14, at 96-97.
33. See id. 34. 92 U.S. 214 (1876).
34. 92 U.S. 542 (1876).
35. See R.H. Battle, Hon. Samuel Field Phillips, LL.D., 1 N.C. J.L. 22, 27 (1904); Robert D. Miller, Samuel Field Phillips: The Odyssey of a Southern Dissenter, 58 N.C. HIST. REV. 263, 275 (1981).
36. See R.H. Battle, Hon. Samuel Field Phillips, LL.D., 1 N.C. J.L. 22, 27 (1904); Robert D. Miller, Samuel Field Phillips: The Odyssey of a Southern Dissenter, 58 N.C. HIST. REV. 263, 275 (1981).
37. 109 U.S. 3 (1883).
38. 106 U.S. 629 (1883).
39. The Civil Rights Cases, 109 U.S. at 14.
40. See Harris, 106 U.S. at 643.
41. See generally ROBERT J. KACZOROWSKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE, AND CIVIL RIGHTS 1866-1876 (1985).
42. 163 U.S. 537 (1896).
43. Id. at 537 (quoting 1890 La. Acts 111); see also Damon Keith, One Hundred Years After Plessy v. Ferguson, 65 U. CIN. L. REV. 853, 854-55 (1997) (discussing facts and procedural background of Plessy). Phillips shared the oral argument on Plessy's behalf with Albion Tourgee, who had represented Plessy since trial. See generally CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION (1987).
44. Id. at 537 (quoting 1890 La. Acts 111); see also Damon Keith, One Hundred Years After Plessy v. Ferguson, 65 U. CIN. L. REV. 853, 854-55 (1997) (discussing facts and procedural background of Plessy). Phillips shared the oral argument on Plessy's behalf with Albion Tourgee, who had represented Plessy since trial. See generally CHARLES A. LOFGREN, THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION (1987).
45. Plessy, 163 U.S. at 552 (Harlan, J., dissenting); The Civil Rights Cases, 109 U.S. at 33 (Harlan, J., dissenting).
46. Justice Harlan's dissent was prophetic of Plessy's impact: The present decision, it may well be apprehended, will not only stimulate aggressions . . . upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Plessy, 163 U.S. at 560. For a detailed analysis of the post-Plessy period, and the jurisprudential tenor of the times, see Michael J. Klarman, The Plessy Era, 1998 SUP. CT. REV. 303.
47. 1 mean "little," of course, in a relative, not an absolute, sense. Prominent examples of pro-civil rights decisions by the Court during this 50-year period include Smith v. Allwright, 321 U.S. 649 (1944), and Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). For a contextual account of pro-civil rights decisions during the second decade of the twentieth century, see Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881 (1998). See also Andrew Kull, Post-Plessy, Pre-Brown: "Logical Exactness in Enforcing Equal Rights", 1999 J. SUP. CT. HIST. SOC'Y 155.
48. 1 mean "little," of course, in a relative, not an absolute, sense. Prominent examples of pro-civil rights decisions by the Court during this 50-year period include Smith v. Allwright, 321 U.S. 649 (1944), and Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). For a contextual account of pro-civil rights decisions during the second decade of the twentieth century, see Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881 (1998). See also Andrew Kull, Post-Plessy, Pre-Brown: "Logical Exactness in Enforcing Equal Rights", 1999 J. SUP. CT. HIST. SOC'Y 155.
49. The Committee, formed by President Truman in December 1946, released its report in October 1947. See PRESIDENT'S COMM. ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS (1947).
50. Brief for the United States as Amicus Curiae at 2, Shelley v. Kraemer, 334 U.S. 1 (1948) (No. 72).
51. A small civil rights unit had been established in 1939 by then-Attorney General Frank Murphy, but it was diminutive. As one historian described it, "[it] was still pretty much the Tinker Toy it had been when Frank Murphy set it up." RICHARD KLUGER, SIMPLE JUSTICE 252 (1977).
52. See generally MARK TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION (1987); Seth P. Waxman, The Physics of Persuasion: Arguing the New Deal, 88 GEO. L.J. (forthcoming 2000).
53. See generally MARK TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION (1987); Seth P. Waxman, The Physics of Persuasion: Arguing the New Deal, 88 GEO. L.J. (forthcoming 2000).
54. 334 U.S. 1 (1948).
55. Brief for the United States as Amicus Curiae at 121, Shelley (No. 72).
56. There is an ironic footnote to this proud moment. The brief for the United States in Shelley was written by four Jewish lawyers named Philip Elman, Oscar Davis, Hilbert Zarky, and Stanley Silverberg. Their names, however, were deliberately omitted from the filed brief. According to a subsequent account by Mr. Elman, Arnold Raum, the Solicitor General's principal assistant (and himself a Jew) told the others that it was "bad enough that Perlman's name has to be there, to have one Jew's name on it, but you have also put four more Jewish names on. That makes it look as if a bunch of Jewish lawyers in the Department of Justice put this out." Philip Elman & Norman Silber, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 819 (1987).
57. It is unusual, although consistent with the finest traditions of the Solicitor General's office, for the United States to decline to defend in the Supreme Court a lower-court judgment in favor of the United States when the Solicitor General concludes that the lower-court judgment cannot be defended. The practice is known as "confessing error." See generally Archibald Cox, The Government in the Supreme Court, 5 CHI. BAR REC. 221, 224-25 (1963).
58. Between the time the Solicitor General filed the United States's amicus brief in Shelley and the date on which he announced that the United States would switch sides in Henderson v. United States, 339 U.S. 816 (1950), Perlman on five separate occasions asked the Supreme Court to vacate lower-court decisions in civil rights cases in which the United States, as a defendant, had prevailed, because on review he concluded the lower courts had been wrong to rule against the civil rights plaintiffs.
59. Henderson, 339 U.S. 816.
60. See Brief for the United States at 12, 23-66, Henderson (No. 25).
61. See, e.g., LINCOLN CAPLAN, THE TENTH JUSTICE 107 (1987) (quoting Rex Lee, Solicitor General during President Reagan's first term, as saying that it "'accomplishes nothing'" to "'lecture the Justices about where they went wrong'" and to urge them to overturn well-established precedent); Craig R. Callen, Stare Decisis and the Case for Executive Restraint, 9 MISS. C. L. REV. 79, 90-95, 97-99 (1988); see also infra text accompanying notes 83-84, 88.
62. See, e.g., LINCOLN CAPLAN, THE TENTH JUSTICE 107 (1987) (quoting Rex Lee, Solicitor General during President Reagan's first term, as saying that it "'accomplishes nothing'" to "'lecture the Justices about where they went wrong'" and to urge them to overturn well-established precedent); Craig R. Callen, Stare Decisis and the Case for Executive Restraint, 9 MISS. C. L. REV. 79, 90-95, 97-99 (1988); see also infra text accompanying notes 83-84, 88.
63. Elman & Silber, supra note 53, at 821. Elman himself played a crucial role in the development and articulation of the United States's position in Henderson. For a brief account of that role, see Anthony Lewis, "Imposing on Them a Badge of Inferiority", N.Y. TIMES, Jan. 22, 2000, at A15.
64. I do not mean to suggest that the Court invariably lagged behind the federal government on matters of civil rights during this period. In at least a few instances, the Court evidenced a progressive attitude towards civil rights before the United States government did. In Smith v. Allwright, 321 U.S. 649 (1944), for example, the Court invalidated the exclusion of blacks from a primary election in Texas. The Roosevelt administration, however, elected not to participate in the case, possibly for fear of offending southern Democrats in Congress.
65. 339 U.S. 629 (1950).
66. 339 U.S. 637 (1950).
67. See Brief for the United States at 9-14, Sweatt (No. 44); Memorandum for the United States as Amicus Curiae at 9-14, McLaurin (No. 34).
68. McLaurin, 339 U.S. at 640-41; Sweatt, 339 U.S. at 632-33.
69. See Sweatt, 339 U.S. at 635-36.
70. 347 U.S. 483 (1954).
71. The actual phrase "deliberate speed" did not appear in the United States's initial brief. According to Elman, that phrase "made its first appearance in Brown in [Assistant Attorney General J. Lee] Rankin's oral argument in 1953." Elman & Silber, supra note 53, at 830; see 49A LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT: CONSTITUTIONAL LAW 538 (Philip B. Kurland & Gerhard Casper eds., 1975); MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW 208 (1994).
72. The actual phrase "deliberate speed" did not appear in the United States's initial brief. According to Elman, that phrase "made its first appearance in Brown in [Assistant Attorney General J. Lee] Rankin's oral argument in 1953." Elman & Silber, supra note 53, at 830; see 49A LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT: CONSTITUTIONAL LAW 538 (Philip B. Kurland & Gerhard Casper eds., 1975); MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW 208 (1994).
73. Elman & Silber, supra note 53, at 827.
74. See id. at 827-28 (describing the idea of a delayed remedy for a constitutional violation as "entirely unprincipled [and] . . . just plain wrong as a matter of constitutional law"); Randall Kennedy, A Reply to Philip Elman, 100 HARV. L. REV. 1938, 1947 (1987) (noting that "a decade after Brown, only 2.3 percent of black schoolchildren in the south were attending desegregated schools").
75. For general accounts of Cox's tenure as Solicitor General, see CAPLAN, supra note 57, at 188-201, and KEN GORMLEY, ARCHIBALD COX: CONSCIENCE OF A NATION 140-96 (1997).
76. See GORMLEY, supra note 69, at 164, 172, 177, 189; VICTOR S. NAVASKY, KENNEDY JUSTICE 289-95 (1971); ARTHUR M. SCHLESINGER, JR., ROBERT KENNEDY AND HIS TIMES 290-91 (1978).
77. See GORMLEY, supra note 69, at 164, 172, 177, 189; VICTOR S. NAVASKY, KENNEDY JUSTICE 289-95 (1971); ARTHUR M. SCHLESINGER, JR., ROBERT KENNEDY AND HIS TIMES 290-91 (1978).
78. GORMLEY, supra note 69, at 172 (quoting Interview by Anthony Lewis with Robert F. Kennedy and Burke Marshall (Dec. 12, 1964)).
79. 378 U.S. 347 (1964).
80. See Brief for Petitioners at 19-59, Bouie (No. 10).
81. See GORMLEY, supra note 69, at 155-59.
82. 118 U.S. 356 (1886).
83. See Brief of the United States as Amicus Curiae at 25-55, Bouie (No. 10). The protestors themselves also made a similar argument as an alternative basis for reversal, see Brief for Petitioners at 59-65, Bouie (No. 10), but their focus was on the equal protection issue.
84. See Bouie, 378 U.S. at 367 n.4 (Black, J., dissenting) (noting that "[o]ne petitioner said that he had intended to be arrested; the other said he had the same purpose 'if it took that.'").
85. Before it did so, however, the Court invited the Solicitor General to file a supplemental brief "expressing the views of the United States upon 'the broader constitutional issues which have been mooted'" in the case. Supplemental Brief for the United States as Amicus Curiae at 1-2, Bouie, 378 U.S. 347 (Nos. 6, 9, 10, 12, & 60). In its supplemental brief the United States took the position that discriminatory enforcement of trespass laws does constitute an equal protection violation. The brief accepted the Court's decision in the Civil Rights Cases, but argued that Bouie and the cases with which it was consolidated were distinguishable because they involved state action in the form of police and judicial enforcement of state laws in a discriminatory fashion. See id. at 10, 16-17. Thus, Cox was willing to make the equal protection argument if pressed. Presumably, he simply judged the more narrow argument to be preferable as a strategic matter.
86. Bouie, 378 U.S. at 363. In part because the protestors intended and expected to be arrested, the Court's "unforseeability" rationale seems rather tenuous at best. Indeed, even at the time Bouie was decided, commentators were skeptical of that rationale. See, e.g., Monrad G. Paulsen, The Sit-In Cases of 1964: "But Answer Came There None", 1964 SUP. CT. REV. 137, ("The majority's position respecting due process requirements in interpreting criminal statutes has established a precedent that will be difficult to follow because of the breadth of its effect. . . . It is not to be expected that the Court will be diligent in applying the ratio decidendi of Bouie to other cases."). But the Court's willingness to base its decision on that rationale underscores its desire to avoid reaching the equal protection issue, even if doing so means jeopardizing doctrinal credibility. See Michael J. Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 274 (1991) (contending that in Bouie and other sit-in cases, "the Court employed a variety of clever/disingenuous strategies for reversing the demonstrators convictions" without reaching the equal protection issue).
87. Bouie, 378 U.S. at 363. In part because the protestors intended and expected to be arrested, the Court's "unforseeability" rationale seems rather tenuous at best. Indeed, even at the time Bouie was decided, commentators were skeptical of that rationale. See, e.g., Monrad G. Paulsen, The Sit-In Cases of 1964: "But Answer Came There None", 1964 SUP. CT. REV. 137, ("The majority's position respecting due process requirements in interpreting criminal statutes has established a precedent that will be difficult to follow because of the breadth of its effect. . . . It is not to be expected that the Court will be diligent in applying the ratio decidendi of Bouie to other cases."). But the Court's willingness to base its decision on that rationale underscores its desire to avoid reaching the equal protection issue, even if doing so means jeopardizing doctrinal credibility. See Michael J. Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 274 (1991) (contending that in Bouie and other sit-in cases, "the Court employed a variety of clever/disingenuous strategies for reversing the demonstrators convictions" without reaching the equal protection issue).
88. 379 U.S. 241 (1964).
89. 379 U.S. 294 (1964).
90. See 42 U.S.C. § 2000a (1994).
91. See, e.g., GORMLEY, supra note 69, at 189.
92. Cox may also have had in mind a case decided just before he became Solicitor General. In Boynton v. Virginia, 364 U.S. 454 (1960), decided just a month after President Kennedy was elected, the Supreme Court had seemingly gone out of its way to avoid having to address the question whether private conduct could violate the Fourteenth Amendment. In that case, a black law student named Bruce Boynton was convicted of unlawfully remaining in the whites-only section of a bus terminal restaurant in Richmond, Virginia. His petition for certiorari challenged his conviction both as an invalid burden on interstate commerce, in violation of the Commerce Clause, and as contrary to the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In a brief filed by Solicitor General J. Lee Rankin in support of Boynton, the United States argued that the Fourteenth Amendment is violated when generally applicable state laws are applied to effectuate the racially discriminatory practices of private entities. See Brief for the United States as Amicus Curiae at 16-28, Boynton (No. 7). In making that argument, Rankin stopped short of asking the Court to overrule the Civil Rights Cases, noting that "there the Court carefully reserved the question whether the [Fourteenth] Amendment secured the right to be free from state-sanctioned discrimination in places of public accommodations." Id. at 21 (emphasis in original). The Court, however, was unwilling to thread that needle. Instead, it took the unusual step of reversing the judgment of the court of appeals on a ground wholly separate from the questions raised in Boynton's petition. Rather than reaching the constitutional issues, the Court held that Boynton's convictions violated the Interstate Commerce Act. Considering Boynton, therefore, Cox may have believed that the Court would be reluctant even to engage, much less overrule, the Civil Rights Cases in Heart of Atlanta Motel and McClung.
93. See GORMLEY, supra note 69, at 189.
94. Id. 87. See Waxman, supra note 50.
95. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 279 (1964) (Douglas, J., concurring); id. at 291 (Goldberg, J., concurring).
96. I think particularly of Rex Lee, a highly regarded Solicitor General who served during President Reagan's first term. See CAPLAN, supra note 57, at 107, 144-46; Rex E. Lee, Lawyering for the Government: Politics, Polemics & Principle, 47 OHIO ST. L.J. 595, 600-01 (1986).
97. 383 U.S. 745 (1966).
98. See Brief for the United States at 18-52, Guest (No. 65).
99. Guest, 383 U.S. at 782 (Brennan, J., concurring in part and dissenting in part).
100. See id. at 761 (Clark, J., concurring). Justices Black and Fortas joined Justice Clark's opinion.
101. See id. at 774 (Brennan, J., concurring in part and dissenting in part). Chief Justice Warren and Justice Douglas joined Justice Brennan's opinion.
102. The opinion of the Court, written by Justice Stewart, construed the indictment at issue in that case to allege actual state action. See id. at 753-57. In that way, it avoided the question whether the Fourteenth Amendment might be violated in the absence of state action.