May It Please the Court? The Solicitor General’s Not-So-“Special” Relationship: Archibald Cox and the 1963–1964 Reapportionment Cases

Abstract

May It Please the Court? The Solicitor General’s Not-So-“Special” Relationship: Archibald Cox and the 1963-1964 Reapportionment Cases HELEN J. KNOWLES* Forty-two years ago, the Warren Court decided thejurisprudential progeny ofBakerv. Carr. Six cases, headed by Reynolds v. Sims,2 continued to remake the legal landscape of legislative apportionment using the “one person, one vote” principle. For President John F. Kennedy’s Solicitor General, Archibald Cox, the Reynolds decisions were dangerous. He feared they would precipitate a constitutional crisis thatwouldunderscore why Justice Felix Frankfurter, his mentor, had urged his judicial colleagues to avoid entangling their institution in the “political thicket” oflegislative apportionment. In this article, I challenge the conventional wisdom that the Solicitor General is a “Tenth Justice,” the leader ofan office with which are associated institutional norms and traditions that create a “special relationship” between the Solicitor General and the nine Justices of the Supreme Court of the United States. Analy­ sis is confined to Lucas v. Colorado General Assembly, one of the five cases decided with Reynolds. Lucas was particularly problematic because it involved a constitutional challenge to an apportionment plan that consisted of an amendmentto the Colorado State Constitution, adopted through a referendum and supported by a majority of the voters in every county in Colorado. Documents relating to the craft­ ing of the government’s amicus briefin Lucas show that Cox could not rely on his profes­ sional status to achieve the goal of keeping the Court out of the reapportionment thicket. First, while the Kennedy administration shared his views, it did so for policy-based rather 280 JOURNAL OF SUPREME COURT HISTORY Archibald Cox, appointed Solicitor General in 1961 by President Kennedy, once described his office as having “conflicting obligations—to his client and to the Court.” Cox’s mentor, Felix Frankfurter, dissented in Baker v. Carr, arguing that the Court was rushing into the “political thicket” of legislative malapportionment. than rule-of-law reasons. Second, the post1962 Warren Court did not share the Solicitor General’s concern for its institutional welfare. In theory, as Solicitor General, Cox enjoyed a special relationship with the Supreme Court. In reality, what this relationship allowed him to accomplish was contingent upon the wider institutional context within which the Solicitor General is situated. 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.”3 He came to an office steeped in tradition, where the traditional uniform for participation in oral arguments is the morning suit; it was an office to which mail addressed to “The Celestial General, Washington, D.C.” once found its way.4 Yet, for all the recog­ nition of one’s legal talents that selection to the post of official lawyer of the U.S. govern­ ment bestows, becoming the Solicitor General ofthe United States carries the baggage ofdual loyalty. On the one hand, as Lincoln Caplan’s infamous moniker implies, the Solicitor Gen­ eral is a “Tenth Justice” because he enjoys a unique and special relationship with the Jus­ tices of the Supreme Court.5 On the other hand, he serves at the pleasure of the Presi­ dent. The Solicitor General enjoys (or suffers) having his very own political thicket within which to work—one composed of the exec­ utive and judicial branches of the American governmental system. In 1987, in one of the first substantive studies of the Office of the Solicitor Gen­ eral (OSG) offered by someone who was not a former or current employee, Caplan de­ scribed the Solicitor General as the “Tenth Justice.” Reviewing the book, Roger Clegg suggested that one might also view the Solic­ itor General as the “Thirty-Fifth Law Clerk.”6 Although subsequent studies more frequently invoke Caplan’s term, both descriptions por­ tray the Solicitor General as a member of the ARCHIBALD COX 281 staffofthe United States Supreme Court. Jus­ tice Lewis F. Powell once described the Court as comprising “nine small, independent law firms.”7 Uncritical use of the terms suggested by Clegg and Caplan would require us to ex­ pand the membership...