In the vocabulary of modern American politics, few phrases have been more defiled than “law and order.” For too many people, it is a thinly veiled code word for a return to Dixie’s cattle-prods and police dogs. To invoke it today is to stand in the modern schoolhouse door; likewise, to deride those who invoke it is to join with the saints of the civil rights movement's past. Slander and grandeur aside, this historical illiteracy reveals a total inversion of how Americans understand what truly ended Jim Crow segregation. 

While segregationists like Alabama Gov. George Wallace or Mississippi Sen. James Eastland, used the phrase hypocritically, their contradiction ultimately became their undoing. Law and order was the indispensable weapon that broke the back of government-enforced segregation and the only reliable defense against the mobs of separatism. The great triumphs of the Civil Rights era were largely triumphs of law and maintenance of order, by many that have been relatively unrecognized. Its most catastrophic failures were failures of lawlessness often abetted by names now canonized. To understand this is to understand the central theme of the long struggle towards the promise of equality before the law. 

Conventional history of the Civil Rights Movement often begins with the Supreme Court’s 1954 Brown v. Board of Education decision. It established, with the full authority of the Constitution, reasserting the Fourteenth Amendment, that state-mandated segregation was an American heresy. But a legal principle without an enforcement mechanism is merely a suggestion. And the Court, in its Brown II decision, rather than outline timetables or benchmarks, offered a phrase that was at best ambiguous, and at worst, contradictory. The ruling said that desegregation needed to be carried out "with all deliberate speed."¹ Any lower governing authority could sidestep the ruling by claiming vague difficulty with moving faster while still abiding by “all deliberate speed.” It became, in the words of Dwight Eisenhower’s Attorney General Herbert Brownell, a "major source of the enforcement problem."² The infamous phrase, Brownell lamented, “unwittingly sowed the seeds for violence that ensued at Little Rock and during the administrations of Presidents Kennedy and Johnson.”³ It created a vacuum, and into that vacuum rushed the forces of chaos.

Faced with this judicial void, President Dwight D. Eisenhower, the master strategist, saw no value in loud, empty theatrics. His administration was already quietly making monumental gains in areas where its authority was indisputable, such as desegregating the military and Washington, D.C. They understood that the Brown decision rested almost all authority onto the federal lower courts. They were the ones who were to dictate local desegregation plans; therefore, the people who sat on those benches determined how fast or slow de jure segregation would endure. 

Progress would not be won by speeches, but first by the patient, unglamorous work of building a legal infrastructure capable of enforcing the principles of the Fourteenth Amendment by filling the federal courts of the South. These lower court appointments, as much as the Brown decision itself, laid the foundation for the entire Civil Rights Movement.

Many of the civil rights era’s most iconic moments can be traced to Eisenhower’s lower court appointments. These judges provided the legal foundation for its greatest triumphs, and helped avert disasters that might have unraveled the movement entirely. It was Frank M. Johnson, an Eisenhower appointee, who struck down the segregated seating of public buses in Montgomery after the Rosa Parks incident.⁴ It was Johnson again who ordered George Wallace to allow Martin Luther King Jr. to march from Selma to the Capitol steps in Montgomery.⁵ It was Harlan Grooms, an Eisenhower appointee, who issued a court order for the belligerent University of Alabama to admit its first black student, Autherine Lucy.⁶ It was Ronald Davies, an Eisenhower appointee, who nullified a previous ruling to block the integration of nine students at the school in Little Rock.⁷ And it was Elbert Tuttle, John Robert Brown, and John Minor Wisdom, all three Eisenhower appointees, who led in the struggle to have James Meredith admitted to the University of Mississippi, and who ruled to permit Martin Luther King Jr. to conduct meetings and demonstrations in Albany, Georgia.⁸ 

After the Brown ruling, some of the Democratic Party’s most powerful figures were doing everything in their power to alter Eisenhower’s course of action. When the federal courts became overwhelmed, Senator James Eastland of Mississippi proposed a bill to create 25 new judgeships. Eastland, unfortunately, was exactly the person you didn’t want to oversee a slew of new judge appointments for civil rights cases. He was known as the “Voice of the White South,” his party allowed him to chair the Senate Judiciary Committee, which became the “graveyard of civil rights legislation.”⁹

Eastland was a lifelong Democrat who blocked over one hundred civil rights measures during his career from 1943 to 1978. When Eisenhower’s new attorney general, William Rogers, told Eastland and his partner in crime, Senate Majority Leader Lyndon Johnson, that it would be Eisenhower who would pick appointees who were “best qualified,” Eastland and Johnson knew what that entailed, namely that the new judges would fit Eisenhower’s standard for upholding the Brown decision, and Johnson, preferring gridlock, promptly killed his own bill.¹⁰

Publicly, with the threat of violent backlash throughout the country, Eisenhower pursued a strategy of persuasion and unity, appealing to the South’s professed respect for law and order. Days after Brown, he stated, “The Supreme Court has spoken, and I’m sworn to uphold the constitutional processes in this country; and I will obey.”¹¹ 

Many civil rights leaders at the time were upset with Eisenhower’s strategy of persuasion. A narrative has persisted that the lack of progress in these years was not because of the ambiguity of the Brown decision, or the delay between Brown and Brown II, which let resistance gain momentum, but because Eisenhower didn’t denounce the South in forceful enough terms. Not-so-coincidentally, one of the main purveyors of this narrative was the man responsible for the Brown ambiguity, Chief Justice Earl Warren.

Opportunistic demagogues capitalized on the vagueness of the Brown II ruling and attempted to defy the essence of the law while being able to obscure the charge of pure violation. Such was the case with Democratic governor Orval Faubus in Arkansas. With the obvious intention to create a spectacle, Faubus was able to use a vague fear of violence, and a state injunction, to do the exact opposite of the intention of the Brown ruling, by sending the Arkansas National Guard to block the integration of nine black students. Eisenhower’s hand was forced, and he sent federal troops. While serious violence was avoided, Faubus got his show, and it became a rallying cry for segregationists for years. 

The Democratic senator and chairman of the Senate Armed Services Committee, Richard B. Russell of Georgia accused the President (and former Supreme Allied Commander) of applying the tactics of "Hitler's storm troopers." Russell added that Eisenhower will be seen as using “strong-armed totalitarian police-state methods…"¹²

The essential strategy of appointing pro-Brown court appointments to key Southern benches was the most effective way to subvert the Russells and Eastland’s.

This strategy abruptly ended when John F. Kennedy was elected in 1960. Kennedy, in an effort to pass a massive omnibus bill, handed incredible power over appointments back to the very man who had fought Eisenhower: Senator Eastland, who was owed patronage for supporting Kennedy in 1960.¹³ The effect was immediate and devastating. 

Consider what was said by Kennedy’s own Assistant Attorney General of the Department of Justice’s Civil Rights Division (1961-1964), Burke Marshall:

The result was a catastrophe for civil rights in the South and the movement itself. The first judge appointed under this new arrangement was William Harold Cox, a man the Eisenhower administration had explicitly rejected for his virulent racism. In court, Judge Cox was known to refer to black defendants as “niggers” and “chimpanzees.”¹⁵ He was not an anomaly; the bill would allow for 73 new federal judge appointments, in addition to 22 vacancies, for a total of 95 appointments.¹⁶ The Kennedy administration admittedly appointed a slate of judges who openly defied Brown because of the Democratic Party's "relationships" with senators like Eastland. 

In significant ways, the Civil Rights Movement abruptly stopped making progress despite monumental legislation. The path to legal redress was being deliberately blocked by the movement’s supposed political allies.

The presidency of Lyndon Johnson brought this contradiction to its apex. Johnson secured the passage of the Civil Rights Act of 1964, an immense achievement of legislation. But he almost immediately betrayed it at the 1964 Democratic National Convention in Atlantic City. This largely forgotten and misunderstood debacle deserves further analysis, about which we’re currently writing, but for now, one needs to only understand the impact of Johnson’s actions toward the rejection of civil rights groups, primarily the SNCC’s Mississippi Freedom Democratic Party (MFDP), of being seated at the DNC and the effects more broadly for the Civil Rights Movement. The SNCC chairman during the MFDP battle at the DNC was future Georgia congressman John Lewis:

The message sent by the Kennedy and Johnson administrations was clear: the law was a tool to be used or ignored for political convenience. For activists who had staked their lives and entire strategy up to then on the sanctity of the law, the disillusionment was profound. Faith in the system collapsed. If the courts were rigged and the laws unenforced by their own authors, what was left? The answer came in fire and fury. The riots in Watts and Detroit, the rise of radicalism, and the cratering of public support for the movement were the direct, bitter fruit of this Democratic Party betrayal of the rule of law. After King’s “I Have a Dream” speech in 1963, only 37% gave him an unfavorable rating, but by early 1968, King was sitting at nearly a 75% disapproval rating.

Into this vortex of chaos stepped Richard Nixon. While Nixon is often criticized for using the phrase “law and order” as a coded message, the reality is that far from it being “coded,” he overtly framed the issue as being directly related to the civil rights movement–but as its ally. In 1966, targeting a Southern audience, Nixon authored a column on “Law and Order.” Here are a selection of excerpts that demonstrate Nixon may have understood this situation better than any politician:

And then again, Nixon hit on this theme in his 1968 RNC speech:

This was his message, and upon taking office, he acted.

Like Eisenhower, his methods were quiet, strategic, and stunningly effective. Shunning the press conferences and grandstanding of his Democratic Party predecessors, Nixon’s administration began the systematic, behind-the-scenes work of fostering Southern voluntary compliance with the law. The results were staggering. 

The liberal New York Times columnist Tom Wicker, after investigating the administration’s record, was forced to conclude: “There’s no doubt about it—the Nixon administration accomplished more in 1970 to desegregate Southern school systems than had been done in the sixteen previous years.”¹⁹ Wicker added, “There’s no doubt either that it was Richard Nixon personally who conceived, orchestrated and led the administration’s desegregation effort.”

The lesson is as clear today as it was then. The Civil Rights Movement succeeded when it appealed to the shared principle of American law and order backed by the power of an executive not beholden to the segregationist order. It collapsed when its own supposed champions subordinated the law to politics, an act of betrayal that burst into flames. The heroes of this story are not just the brave individuals who fought against the national Democratic Party and segregationist order, but the unrecognized judges and the leaders who understood that justice cannot exist without order. And the enduring tragedy is that the very people who claim the movement’s mantle today have embraced the tactics of its worst enemies: a contempt for the law, a preference for the mob, and a willful ignorance of the history they pretend to celebrate.