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Birmingham Bar Association Spring 2014

2. The whole case, from filing of the Complaint to the final decision in the United States Supreme Court took less than six months. Although McClung is a landmark, it took an impressively short time to be resolved. The Civil Rights Act of 1964 was signed by President Johnson on July 2, 1964. The McClungs filed suit in the United States District Court for the Northern District of Alabama less than thirty days later on July 31, 1964. Following a preliminary injunction hearing held on September 1 and the ruling entered by the three-judge panel on September 17, the U.S. Supreme Court heard oral argument on October 5 and issued its landmark ruling on December 14, 1964. The rapidity at which McClung was decided is a testament to the importance placed on promptly resolving the constitutionality of the Civil Rights Act, but also to the tenacity and skill of the lawyers involved. The case was forcibly expedited so that thorough and well-written briefs had to be filed on extremely short notice and a Supreme Court oral argument prepared and delivered in a matter of days. 3. Alabama’s own Hugo Black played a pivotal role in the case while being heavily lobbied by his fellow Southerners, including his own wife. After the 3-judge panel held the Civil Rights Act unconstitutional, the federal government immediately appealed directly to the U.S. Supreme Court and applied for a stay of the panel’s order. As the Justice assigned to Alabama, it fell to Associate Justice Hugo Black to rule on the request for a stay. On September 23, 1964, less than a week after the 3-judge panel’s ruling, Justice Black entered an order staying execution of the judgment and setting oral argument in the case for just two weeks later. While the case was pending in the Supreme Court, Justice Black received letters from his fellow Southerners, including Alabamians, urging him to uphold segregation and the 3-judge panel’s finding that the Civil Rights Act was unconstitutional. At the same time, Justice Black’s wife, Elizabeth, who was a frequent and loyal customer of Ollie’s, was also gently lobbying her husband against finding that the restaurant was involved in interstate commerce by volunteering to him that: “They just have local people coming in for lunch. Nobody is a stranger in that place.” Justice Black no doubt listened quietly to his wife before joining the 9-0 majority in telling Ollie’s that it was time to make some new customers. 4. The lead lawyer for the Mc- Clungs, Robert McDavid Smith, did not read the Supreme Court’s opinion until twenty years after it was released. Robert McDavid Smith was a Ramsay High School graduate and a decorated WWII veteran who received his law degree from the University of Alabama and an L.L.M. from Harvard in 1949. Smith conceived of, directed and masterfully argued the McClung case before both the 3-judge panel (where he won) and the Supreme Court (where he lost). Most lawyers never get the chance to argue a case in the U.S. Supreme Court, much less a closelywatched, landmark constitutional law case. McClung had to be one of the most important and memorable moments of Smith’s career. Despite all of this, Smith did not read the Supreme Court’s opinion in McClung for more than twenty years after it was released. “I knew we lost the case,” Smith stoically recounted years later. 5. The reaction to the Supreme Court’s decision was swift and predictable, but also almost universally peaceful. On December 14, 1964, the Supreme Court released its decision in McClung along with the decision in Heart of Atlanta Motel, Inc. v. U.S., which similarly upheld the application of the 1964 Civil Rights Act to hotels and motels. Alabama Governor George Wallace hyperbolized the Supreme Court’s decisions as a “staggering blow to the free enterprise system and the rights of private property owners” and called for “continuing resistance” to such federal intervention. The Birmingham News warned that “a grave danger may lie in the uses of this opinion as further precedent in cases involving governmental power to act against private enterprise.” 18 Birmingham Bar Association


Birmingham Bar Association Spring 2014
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