It is one of the more striking ironies of the 1960s that although the “rights revolution” began in the streets, it achieved constitutional legitimacy through the Supreme Court, historically the most conservative branch of government. Under the guidance of Chief Justice Earl Warren, the Court vastly expanded the rights enjoyed by all Americans and placed them beyond the reach of legislative and local majorities.
As noted in Chapter 21, the Court’s emergence as a vigorous guardian of civil liberties had been foreshadowed in 1937, when it abandoned its commitment to freedom of contract while declaring that the right of free expression deserved added protection. The McCarthy era halted progress toward a broader conception of civil liberties. It resumed on June 17, 1957, known as “Red Monday” by conservatives, when the Court moved to rein in the anticommunist crusade. The justices overturned convictions of individuals for advocating the overthrow of the government, failing to answer questions before the House Un-American Activities Committee, and refusing to disclose their political beliefs to state officials. The government, Warren declared, could prosecute illegal actions, but not “unorthodoxy or dissent.” By the time Warren retired in 1969, the Court had reaffirmed the right of even the most unpopular viewpoints to First Amendment protection and had dismantled the Cold War loyalty security system.
Civil liberties had gained strength in the 1930s because of association with the rights of labor; in the 1950s and 1960s, they became intertwined with civil rights. Beginning with NAACP v. Alabama in 1958, the Court struck down southern laws that sought to destroy civil rights organizations by forcing them to make public their membership lists. In addition, in the landmark ruling in New York Times v. Sullivan (1964), it overturned a libel judgment by an Alabama jury against the nation’s leading newspaper for carrying an advertisement critical of how local officials treated civil rights demonstrators. The “central meaning of the First Amendment,” the justices declared, lay in the right of citizens to criticize then government. For good measure, they declared the Sedition Act of 1798 unconstitutional over a century and a half after it had expired. Before the 1960s, few Supreme Court cases had dealt with newspaper publishing. Sullivan created the modem constitutional law of freedom of the press.
Karl Hubenthal's December 8, 1976, cartoon for the Los Angeles Herald-Examiner celebrates the rights revolution as an expansion of American liberty.
The Court in the 1960s continued the push toward racial equality, overturning numerous local Jim Crow laws. In Loving v. Virginia (1967), it declared unconstitutional the laws still on the books in sixteen states that prohibited interracial marriage. This aptly named case arose from the interracial marriage of Richard and Mildred Loving. Barred by Virginia law from marrying, they did so in Washington, D.C., and later returned to their home state. Two weeks after their arrival, the local sheriff entered their home in the middle of the night, roused the couple from bed, and arrested them. The Lovings were sentenced to five years in prison, although the judge gave them the option of leaving Virginia instead. They departed for Washington, but five years later, wishing to return, they sued in federal court, claiming that their rights had been violated. In 1968, in Jones v. Alfred H. Mayer Co., the Court forbade discrimination in the rental or sale of housing. Eliminating “badges of slavery,” such as unequal access to housing, the ruling suggested, was essential to fulfilling at long last the promise of emancipation.