By the time Justice Bradley and Justice Harlan argued over the constitutionality of the public accommodation provisions in the Civil Rights Cases, the Supreme Court had not yet offered a deep analysis of equality. That did not change with Justice Bradley's majority opinion. But Bradley's combination of support for the Civil Rights Act of 1866 and rejection of the public accommodation provisions would have been recognizable to contemporaries. The instability in centrist Republican use of the social rights category was short-lived, and the civil/social distinction Bradley advanced had been established in political and legal realms for over a decade.

According to conventional wisdom, the Civil Rights Cases struck down the public accommodation provisions of the Civil Rights Act of 1875 because these provisions regulated private individuals (e.g., owners of inns, theaters, railroads, and steamboats), and private individuals were beyond the reach of the Fourteenth Amendment. It did not matter if states applied neutral laws unevenly and failed to punish crimes against blacks. The conventional view holds that individual perpetrators of those crimes were beyond the reach of the Fourteenth Amendment.

There is an obstacle to this understanding of the Civil Rights Cases: Justice Bradley's construction of the legal phrase “under color of law… or custom.”