Reminiscences of the Solicitor General’s Office

Abstract

Reminiscences of the Solicitor General’s Office Robert L. Stern Editor’s Note: The Office ofthe Solicitor General isformally part ofthe Department ofJustice, but its influence in the history ofthe Supreme Court is both tremendous and relatively unknown. Lincoln Caplan believes the office is so important that he entitled his book The Tenth Justice: The Solicitor General and the Rule ofLaw (1987). And Caplan singles out as the man who knows more about the practice of the Court than anyone else Robert L. Stern, whose Supreme Court Practice (now in its seventh edition) is not only the bible oflawyers coming before the tribunal, but has proven quite influential with the Court as well. A few years ago Danielle Stern suggested to her grandfather that as the oldest member ofthe family, he ought toput down his memories ofboth thefamily and ofhis lawpractice. Stern did, and in it he describes various members ofthefamily, and how he came to go to Harvard Law School, graduating in 1932 during the Great Depression. Although he had been an editor ofthe Harvard Law Review and graduated magna cum laude, the major New Yorkfirmspassed him by because he was a Jew. He did manage to get ajob with a small lawfirm at $25 a week, and about a year later went to Washington tojoin the New Deal. We arepleased to present thatpart ofMr. Stern s memoirs that deals with his years in the Justice Department and then in the Solicitor Generals office. My first sixteen months after graduation from Harvard Law School I worked in a four-lawyer office inNewYork City. In October 1933 Herbert S. Marks, a classmate at Harvard Law School who had probably been the top student on the Harvard Law Review, telephoned to tell me that if I wanted to come to Washington I should see his superior, Nathan Margold, the Solicitor of the Interior Department, the next morning at a dentist’s office in New York. Margold (a former Harvard law professor) was recruiting lawyers for the Petroleum Administrative Board, who were to work under him and his first assistant, Charles Fahy (an Air Force pilot in World War I). Both of them had come to the Interior Department because of its concern with Indian affairs, not because of its knowledge of the petroleum industry! (Margold eventually became a District of Columbia Municipal Court Judge. Fahy became the Solicitor General ofthe United States who brought me into that office in 1941. He later became a judge ofthe Court ofAppeals for the District of Columbia Circuit.) Margold promptly offered me a job at thrice my prior sal­ ary, which I accepted. My boss at the small law firm where I worked had refused to raise my pay, so his suggestion that I should have asked the government for more shocked me. John F. Davis and John H. Hollands, who had also been on the Review with me at law school, came to the Petroleum Board at the same time in November 1933. The Board’s function was to administer the code for the petroleum industry under the National Industrial Recovery Act. All other industries were assigned to a sepa­ rate agency, the National Industrial Recovery 124 1995JOURNAL Administration. I remember telephoning Milton Handler, up to then a Columbia law professor, who we thought was in charge of brief writing under the Act, to send us a copy of their briefs on the constitutional issues. We discovered, how­ ever, that they had not yet drafted any briefs, and that it would be up to Davis, Hollands and me to prepare the first drafts on our own. The result was that we drafted the first brief on the consti­ tutionality of the National Industrial Recovery Act for the United States Court of Appeals in Texas in Panama Refining Co. v. Ryan.1 The case involved the provisions of the Petroleum Industry Code that forbade the production of oil in excess ofquotas for each well in the EastTexas oil field (where the price ofoil had gone down to five cents a barrel), and which limited the amount that oil producers could ship across state lines. The three of us divided up the first drafting of the...