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30 Ruling In Introduction Forty years ago the Warren Court decided the jurisprudential progeny of Baker v. Carr.3 Six cases, headed by Reynolds v. Sims,4 continued to remake the legal landscape of legislative apportionment using the “one person, one vote” principle. For President Kennedy’s Solicitor General, Archibald Cox, the decisions in Reynolds et al. were dangerous. He feared they would precipitate a constitutional crisis that would underscore why Justice Frankfurter, his mentor, had urged his judicial colleagues to avoid entangling their institution in the “political thicket” of legislative apportionment. In this paper I challenge the conventional wisdom that depicts the solicitor general as a ‘Tenth Justice’, the leader of an office with which is associated institutional norms and traditions that create a ‘special relationship’ between the solicitor general and the nine justices of the United States Supreme Court. Analysis is confined to Lucas v. Colorado General Assembly, one of the five cases decided with Reynolds. Cox believed that the federal government should not file any amicus curiae briefs supporting the extension of the one person, one vote standard in the reapportionment cases. Lucas posed the greatest problem for him because it involved a constitutional challenge to an apportionment plan that consisted of an amendment to the Colorado State Constitution adopted through a referendum, and supported by a majority of the voters in every county in Colorado. Appointed by President Kennedy in 1961, Archibald Cox became the thirty-first Solicitor General. He is widely acknowledged to have been one of the best Solicitors General, once referred to as “the Willie Mays of Supreme Court lawyers.”5 He came to an office steeped in tradition, where the traditional uniform for participation in oral arguments is the morning suit; it 3 369 U.S. 186 (1962). 4 376 U.S. 1 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); and Lucas v. Colorado General Assembly, 377 U.S. 713 (1964). 2 was an office to which mail addressed to “The Celestial General, Washington, D.C.” once found its way.6 Yet, for all the recognition of one’s legal talents that selection to the post of official lawyer of the U.S. government bestows, becoming the Solicitor General of the United States carries the baggage of dual loyalty. On the one hand, as Lincoln Caplan’s infamous moniker implies, the Solicitor General is a “Tenth Justice” because he enjoys a unique and special relationship with the justices of the U.S. Supreme Court.7 On the other hand, he serves at the pleasure of the President. The Solicitor General enjoys (or suffers) having his very own political thicket within which to work – one composed of the executive and judicial branches of the American governmental system. Part I: Literature Review In 1987, in one of the first substantive studies of the Office of the Solicitor General offered by someone who was not a former or current OSG employee, Lincoln Caplan described the solicitor general as the “Tenth Justice”. Reviewing the book, Roger Clegg suggested that one might also view the solicitor general as the “Thirty-Fifth Law Clerk”.8 Although subsequent studies more frequently invoke Caplan’s term, both descriptions portray the solicitor general as a member of the staff of the United States Supreme Court. Justice Powell once described the Court as comprising “nine small, independent law firms”.9 Uncritical use of the terms suggested by Clegg and Caplan would require us to expand the membership of the Court so that it 5 Quoted in KEN GORMLEY, ARCHIBALD COX: CONSCIENCE OF NATION 181 (1997). 6 EUGENE C. GERHART, AMERICA’S ADVOCATE: ROBERT H. JACKSON 143 (1958). 7 LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987). 8Roger Clegg, The Thirty-Fifth Law Clerk, 1987 DUKE L.J. 1964 (1987). 9 Quoted in WALTER F. MURPHY ET AL., COURTS, JUDGES, & POLITICS: AN INTRODUCTION TO THE JUDICIAL PROCESS 618 (5th ed. 2002). 3 comprised ten law firms – the nine justices’ chambers and the OSG. This is a misleading view of the solicitor general’s work. To be sure, he enjoys a “special relationship” with the Supreme Court. But he is also a presidential appointee serving at the ‘pleasure’ of the president; and as Justice Sutherland once observed: “It is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will.”10 In large part, Caplan’s book was a criticism of what he saw as the politicization of the OSG by the Solicitors General of the Reagan Administration; he portrayed the OSG as having lost its independence to the will (and therefore the conservative agenda) of the President. Subsequent works have shown that Caplan exaggerated the ‘independence’ of prior generations of OSG occupants, thereby skewing his conclusions about President Reagan’s appointees.11 Rebecca Mae Salokar demonstrated that between 1959 and 1986 the behavior of solicitors general was far from apolitical. And recently Peter N. Ubertaccio concluded that the same has applied throughout the history of the OSG – since its creation in 1870.12 The body of political science literature represented by the works of Salokar and Ubertaccio rightly emphasizes the solicitor general’s “conflicting obligations – to his client and to the Court”.13 10 Humphrey’s Ex’r v. United States, 295 U.S. 602 at 629 (1935). 11 Numerous scholars have discussed the extent to which Caplan’s observations about the Reagan Solicitors General were clouded by his own political objections to that Administration’s conservatism. See, for example, Gregg Ivers, Book Review, 87 AM. POL. SCI. REV. 783 (1993) (reviewing NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL’S OFFICE, 1789-1990 (1992); KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS (1992); and REBECCA MAE SALOKAR, THE SOLICITOR GENERAL: THE POLITICS OF LAW (1992)) (“While I do not count myself among Ronald Reagan or George Bush’s foremost admirers, neither would I deny them their day in court. Political jurisprudence, whether spurred by nongovernmental or organized interests or the solicitor general, is not, and need not be, the sole province of liberals.”). 12 SALOKAR, THE SOLICITOR GENERAL; Peter N. Ubertaccio, III, Advancing an Executive Agenda: The Office of the Solicitor General and The Development of the Modern American Presidency (2002) (unpublished Ph.D. dissertation, Brandeis University). 13 Archibald Cox, The Government in the Supreme Court, 44 CHI. B. REC. 221, 222 (1962/1963). 4 Modern usage of ‘obligation’ has retained the generic nature of the Latin ‘obligatio’, “any duty imposed by law, promise, contract, relations of society, courtesy, kindness, etc.”14 This definition aptly describes the work of the solicitor general. Reflecting the professionalization of law and the legal profession and the expansion of the federal government after the Civil War, the creation of the Department of Justice in 1870 included the establishment of the Office of the Solicitor General. As Ubertaccio has shown, the OSG quickly became an institution imbued with organizational norms reflecting this professionalization.15 Required to be “learned in the law”, the solicitor general is to “assist the Attorney General in the performance of his duties.”16 This is his legal obligation, his “duty imposed by law”. This ‘assistance’ primarily involves acting as the government’s lawyer – defending the federal government before the Supreme Court; choosing which cases to appeal to the Court; and selecting cases in which to file amicus briefs in support of one of the parties. The multifaceted nature of this work invokes most, if not all, of the other aspects of the aforementioned definition of ‘obligation’. By reflecting on some of these aspects of the OSG’s work we can see why the “conflicting obligations” to which Archibald Cox referred are specifically directed towards the “client” and the “Court”. The solicitor general is considered to have a ‘special’ relationship with the Supreme Court for several reasons.17 The Court looks upon him as the “gatekeeper” of petitions filed with 14 BLACK’S LAW DICTIONARY 740-741 (abridged 6th ed. 1991). 15 Ubertaccio, Executive Agenda, 63-73. 16 28 U.S.C. §§ 505. It is important to note that the relationship which has evolved whereby the solicitor general has been afforded considerable independence within the DOJ is not a legally stipulated separation of powers. John M. Harmon, Memorandum Opinion for the Attorney General, Role of the Solicitor General, 21 LOY. L.A. L. REV. 1089 (1988). 17 The material for this paragraph is drawn from id. at 1093; Corey A. Ditslear, Office of the Solicitor General Participation Before the United States Supreme Court: Influences on the Decision-Making Process 66-72 (2003) (unpublished Ph.D. dissertation, The Ohio State University); H. W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 128-133 (1991); CAPLAN, TENTH JUSTICE; and SALOKAR, THE SOLICITOR GENERAL. 5 it. The federal government loses many more lower court cases than it appeals. The solicitor general makes the final determination on appeals to the Supreme Court. Careful selection of appeals benefits the ‘law’ and the Court. It allows for development of the law at a speed that is generally consonant with the pace at which the Court’s work will be publicly perceived as legitimate. OSG lawyers understand that the Court expects them to maintain a high standard of brief writing. It undermines their relationship with the Court if their work fails to meet the justices’ expectations or exhibits an undesirable degree of ideologically driven argument.
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