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"Presenting the Case of the United States As It Should Be":
The Solicitor General in Historical Context



Address to the
Supreme Court Historical Society
by
Seth P. Waxman *
Solicitor General of the United States


June 1, 1998



Some 60 years ago, a letter found its way into the United States mail addressed simply "The Celestial General, Washington, D.C."   The Postmaster apparently had no trouble discerning to whom it should be delivered.   It went to Robert H. Jackson, then Solicitor General of the United States.(1)

Now neither Justice Jackson nor any of my other predecessors, I am sure, had pretensions of other-worldliness.   But they -- we -- have all been fortunate indeed to have been able to serve in what Thurgood Marshall called "the best job I've ever had."(2)   For the office of Solicitor General of the United States is a wonderful and unique creation.

The Solicitor General is the only officer of the United States required by statute to be "learned in the law."(3)   He is one of only two people (the other being the Vice President) with formal offices in two branches of government.(4)   And perhaps more than any other position in government, the Solicitor General has important traditions of deference to all three branches.

The Solicitor General is of course an Executive Branch officer, reporting to the Attorney General, and ultimately to the President, in whom our Constitution vests all of the Executive power of the United States.   Yet as the officer charged with, among other things, representing the interests of the United States in the Supreme Court, the position carries with it responsibilities to the other branches of government as well.   As a result, by long tradition the Solicitor General has been accorded a large degree of independence.

To the Congress, Solicitors General have long assumed the responsibility, except in rare instances, of defending the constitutionality of enactments, so long as a defense can reasonably be made.(5) With respect to the Supreme Court, the Solicitor General has often been called "the Tenth Justice."(6)   But alas, although I get to participate a lot, I do not get a vote (and in some important cases I could really use one).   No, the Solicitor General's special relationship to the Court is not one of privilege, but of duty -- to respect and honor the principle of stare decisis, to exercise restraint in invoking the Court's jurisdiction, and to be absolutely scrupulous in every representation made.   As one of my predecessors, Simon Sobeloff, once described the mission of the office:

The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case.   My client's chief business is not to achieve victory, but to establish justice.(7)

So what does the Solicitor General do, and how did the office come to be? As for the "what," for the past 50 years or so, the Solicitor General has had two principal functions: to represent the United States in the Supreme Court and, with respect to the lower federal courts and state courts, to decide when the United States should appeal a case it has lost, when it should file a brief amicus curiae, and when the United States should intervene to defend the constitutionality of an Act of Congress.   Ultimately, it is the responsibility of the Solicitor General to ensure that the United States speaks in court with a single voice -- a voice that speaks on behalf of the rule of law.

How this position -- this marvelous creation -- came to be, and how it developed, is the subject of this lecture.   But at best I will be only partially successful, for the office has a long, rich history that, in many respects, is not well documented.   Much of the collected history of the office consists of anecdotal accounts of discrete events and individuals(8) -- and almost none of it covers the origins and early development of the Office.   I propose to focus on three early developments that shaped the Solicitor General's authority over litigation on behalf of the United States.   First, I will briefly discuss the problems and historical forces that led to the creation of the Office of Solicitor General and the Department of Justice in 1870.   Second, I will summarize the formative experiences of the early Solicitors General in consolidating control over government litigation.   And third, I will point out the important part played by the Supreme Court in securing this consolidation of authority.

I. Early Experiences of the Attorneys General

The First Congress established four cabinet positions to assist the President.   With respect to one of those four, the position of Attorney General, the Judiciary Act of 1789 provided:

[T]here shall *   *   * be appointed a *   *   * person, learned in the law, to act as attorney-general for the United States, *   *   * whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.(9)

Although given broad authority over the legal affairs of the country, the Attorney General -- unlike his fellow cabinet officers -- did not preside over an executive department.   Rather, the Judiciary Act of 1789 created only the Office of the Attorney General.   There was no provision for a Department of Justice or even for subsidiary officers or clerical staff to assist the Attorney General in his duties.(10)   Although the Act also created United States district attorneys to conduct the government's legal business in the lower courts, it did not authorize the Attorney General to supervise those lesser legal officers.(11)

Not only was the Attorney General given no assistance, but his salary was set at $1500, one-half the rate of the other cabinet officers, with the clear expectation that his would be a part-time job only and that he could more than make up the pay differential from his private clients.(12)   As President Washington advised Edmund Randolph, seeking to persuade him to accept the position as the first Attorney General, while the salary was low, "the Station would confer pre-eminence on its possessor, and procure for him a decided preference of Professional employment."(13)   In other words, being Attorney General would be highly advantageous to what we now know as "business development."

Experience provided Randolph with a more colorful description of his part-time status.   In 1790, he described himself as "a sort of mongrel between the State and the United States; called an officer of some rank under the latter, and yet thrust out to get a livelihood in the former."(14)   That description proved apt; indeed, in the celebrated Hayburn's Case, Randolph appeared in the Supreme Court acting on behalf of the United States in his official capacity as Attorney General.(15)   When the Court declined to recognize his participation ex officio, Randolph simply switched hats and was allowed to proceed as private counsel for William Hayburn.(16)

It did not take Randolph long to recognize several deficiencies in the original structure of his office.   In December 1791 he wrote a long letter to President Washington protesting that the current conditions made it impossible for him properly to discharge his duties.   He recommended that the Attorney General be authorized to represent the United States in the lower courts, that he be given control and supervision of the district attorneys, and that he be provided with at least one clerk to assist him in transcribing his opinions.(17)

Of particular significance given the current duties of the Solicitor General, Randolph described the need to supervise and coordinate the litigation of the government.   From "the want of a fixed relation between the attorneys of the districts and the Attorney General," Randolph explained,

the United States may be deeply affected by various proceedings in the inferior courts, which no appeal can rectify.   The peculiar duty of the Attorney General calls upon him to watch over these cases; *   *   * [but] his best exertions can not be too often repeated, to oppose the danger of a schism.(18)

Randolph therefore requested authority to supervise the work of the district attorneys and to harmonize conflicting interpretations of law among them.

President Washington immediately forwarded Randolph's letter to Congress, where a bill was drafted to enact his suggestions.   But in what would become a distressing pattern for efforts to reform the government's legal work, Congress did not pass the bill despite favorable committee action.(19)   Over the ensuing eight decades, incremental changes were enacted, but Congress consistently refused to resolve the larger structural concerns raised by Randolph and his successors.(20)

The failure of Congress to reform and coordinate the government's legal business is rather puzzling, and apparently did not reflect any lack of interest or effort by the Executive.   In 1814, for example, President Madison echoed Attorney General Randolph's reform recommendations by urging Congress to extend the powers and duties of the Attorney General, to increase his salary to that of other Cabinet officers, to provide fitting office space, supplies, and support, and to give him control over the district attorneys; but to no avail.(21)

In 1829 President Jackson made similar recommendations, adding that the Attorney General should also have authority to supervise and manage all suits involving revenue and other Treasury matters.(22)   Congress responded to President Jackson's message with a bill "to re-organize the establishment of the Attorney General, and erect it into an Executive Department."   The bill proposed to make the Attorney General the head of the Law Department and authorized him to superintend all suits in which the United States was a party.(23)

Senator Daniel Webster, however, led the opposition to the bill.   According to Webster, the measure would "turn [the Attorney General] into a half accountant, a half lawyer, a half clerk -- in fine, a half of every thing, and not much of any thing."(24)   Rather, Webster argued, the Attorney General "should be engaged in studying his books of law," without distraction from such minor matters as tax collection.(25)   Webster, therefore, proposed a bill to create a Solicitor of the Treasury with authority over all Treasury suits and authority to provide rules for the district attorneys to follow in regard to all civil litigation in which the United States was a party.   Webster's bill passed the Congress.(26)

As an experienced advocate before the Supreme Court, Webster should have known better than to promote the further balkanization of the federal government's control over its litigation.   But the issue arose in the context of a struggle by the National Republicans to find a suitable leader to succeed John Quincy Adams, who had been swamped by Jackson in the 1828 election, and Webster sought that mantle.   The need to consolidate control over the government's litigation may thus have fallen hostage to presidential ambitions.(27)   Other presidents revived Jackson's requests, but Congress continued to show little interest.(28)

Why, then, didn't the President simply issue an executive order directing the Attorney General to assume primacy over government litigation?   The President, after all, has plenary authority under Article II to ensure that the laws be "faithfully executed."   In 1854 Attorney General Caleb Cushing told President Pierce that

the President may undoubtedly, in the performance of his constitutional duty, instruct the Attorney General to give his direct personal attention to legal concerns of the United States [in courts other than the Supreme Court] when the interests of the Government seem to the President to require this.(29)

If the Attorney General could be directed personally to take over litigation, why would the President lack authority to instruct him to supervise litigation conducted by other officers subordinate to the President?   But instead of issuing such an instruction, President Pierce forwarded Cushing's letter to Congress with a request for legislation.(30)   Only when Congress failed to act did he issue an executive order attempting to consolidate a modicum of control in the Attorney General.   But Pierce's order met with substantial resistance within the Executive Branch itself and had little practical effect.(31)

It may be that Presidents other than Pierce did not feel themselves free to order their Attorneys General to supervise the legal work of officers in other Departments because by statute Congress had frequently, and perhaps haphazardly, conferred authority to control litigation in other federal officers.   In 1820, for example, Congress had authorized an agent of the Comptroller of the Treasury to oversee the government's legal efforts to enforce tax and revenue laws -- including the power to direct the district attorneys in those cases.(32)   Neither the Comptroller nor his agent were required to have had any legal training, and the agent was considered a relatively low-level accounting officer.(33)   Thus, Congress created the anomalous situation of subjecting the district attorneys, at least in part, to the direction and control of a non-legal officer, while the chief legal officer of the government -- the Attorney General -- had little or no authority over them at all.(34)

As discussed, Congress superseded that arrangement in 1830 by creating the position of Solicitor of the Treasury, with authority "to instruct the district attorneys *   *   * in all matters and proceedings, appertaining to suits [in the district and circuit courts] in which the United States is a party, or interested."(35)   With that precedent, other department heads began clamoring for their own legal staffs and control over their own litigation.(36)   In 1836 Congress passed a law requiring district attorneys to follow instructions of the auditor of the Post Office Department.(37)   By the eve of the Civil War, every major department had its own legal officer.(38)

The exigencies of the Civil War laid bare the deficiencies of this uncoordinated legal structure.   In August 1861 Congress finally enacted a law giving the Attorney General control over the United States district attorneys and marshals.(39)   Yet much of the significance of that reform was undermined when, four days later, Congress passed another Act providing that the authority of the Solicitor of the Treasury was not to be affected.(40)   To complicate matters even further, Congress passed a law in 1867 requiring the Commissioner of Internal Revenue to establish regulations for the guidance of United States district attorneys.(41)

The law giving the Attorney General control over the district attorneys also authorized the Attorney General to retain outside counsel to assist the district attorneys.   Due to the immense increase in Civil War-related government litigation, almost immediately the number of outside counsel retained to represent the United States exceeded the number of all commissioned law officers in the federal government.(42)   In the six-year period beginning in 1861, when Congress authorized the hiring of outside attorneys, the Attorney General paid nearly $50,000 for outside counsel to assist in the preparation and argument of government cases in the Supreme Court alone.(43)   In addition, the solicitors of the various departments and the district attorneys were spending ever-increasing amounts on outside legal services.   Indeed, it was not uncommon for a single non-governmental attorney during this period to receive a higher average annual income from the government than the Attorney General himself.(44)   All told, between 1864 and 1869 the United States spent well over $700,000 procuring outside legal services.(45)

II. The Birth of the Department of Justice and
the Office of Solicitor General

By 1867 the size of these expenditures focused Congress's attention once again on proposals for reforming the government's legal work.   In December of that year, the Senate passed a resolution requesting the Attorney General to provide information and his views on the need for reform.(46)

Attorney General Henry Stanberry's reply is an important key to understanding the origins and development of the Solicitor General's Office.   "As to the mere administrative business of the office [of the Attorney General] the present force is sufficient," Stanberry declared, "but as to the proper duties of the Attorney General, especially in the preparation and argument of cases before the Supreme Court *   *   * and the preparation of opinions on questions of law referred to him, some provision is absolutely necessary to enable him properly to discharge his duties.   After much reflection," Stanberry proposed, "it seems to me that this want may best be supplied by the appointment of a solicitor general.   With such an assistant, the necessity of employing special counsel in the argument of cases in the Supreme Court of the United States would be in a great measure, if not altogether, dispensed with."(47)   Stanberry further added that he believed the various law officers of the other Departments and the Court of Claims should be transferred to the Attorney General's Office "so that it may be made the law department of the government, and thereby secure uniformity of decision, of superintendence, and of official responsibility."(48)

Stanberry's letter appears to contain one of the first references in an American legislative document to the term "Solicitor General."(49)   And his vision of the duties of that position -- to assist in the preparation and argument of Supreme Court cases and the preparation of legal opinions for the Attorney General -- tracks very closely with the actual work of the early Solicitors General.(50) Interestingly, it also mirrors the very responsibilities given to the Attorney General himself in the 1789 Judiciary Act.(51)

While the Senate Judiciary Committee kept the subject under advisement without further action, the House of Representatives was also considering legal reform.   Even before the Senate had requested information, Representative William Lawrence of Ohio, Chairman of the House Judiciary Committee, was directing a similar inquiry into the creation of a "law department" headed by the Attorney General and composed of the various department solicitors and district attorneys.(52)   Shortly thereafter, Representative Thomas Jenckes of Rhode Island introduced a measure to establish a "department of justice."   Jenckes's proposal was referred not to the Judiciary Committee but to the Committee on Retrenchment, a joint body of the two Houses charged with finding ways of reducing government expenditures.(53)   Thus, by 1868 three separate congressional committees were examining proposals to consolidate and place under the direction of the Attorney General the legal business of the government.(54)

The House Judiciary Committee acted first.   On February 19, 1868, Representative Lawrence reported out his bill to establish a "law department" that contained features ultimately enacted in 1870, including: the creation of a department to handle legal affairs with the Attorney General at its head; a position of Solicitor General to assist the Attorney General; the transfer to the new department of solicitors and assistant solicitors then in the other departments; a requirement that the Attorney General approve all government legal opinions; and a prohibition on the hiring of outside counsel to represent the United States.(55)   Before Congress could act, however, the impeachment trial of President Johnson derailed Chairman Lawrence's bill.(56)

Notwithstanding that event, Congress did enact some piece-meal reforms.   In June 1868 it authorized the Attorney General to control all government litigation in the Court of Claims and provided two Assistant Attorneys General, together with additional clerical staff, to assist him.(57)   In March 1869, as a retrenchment measure, Congress repealed the authority of the Attorney General to employ outside counsel to aid the district attorneys.(58)   But the volume of litigation immediately overwhelmed the district attorneys, and Congress quickly restored that authority.(59)

Finally, on February 25, 1870, Representative Jenckes reported from the Committee on Retrenchment a bill "to establish a Department of Justice," which embodied the ideas of both Lawrence and Jenckes.(60)   Proponents of the bill emphasized the multiplicity of conflicting legal opinions given by the law officers in the several departments and the ever-increasing expenditures for outside counsel -- what one Senator contemptuously referred to as "the sporadic system of paying fees to persons *   *   * who may be called departmental favorites."(61)   Representative Jenckes explained the overriding aim of this legislation as creating "a unity of decision, a unity of jurisprudence *   *   * in the executive law of the United States," and it was for this purpose that the bill "propose[d] that all the law officers therein provided for shall be subordinate to one head."(62)   Of the new office of Solicitor General, Representative Jenckes had this to say:

We propose to create *   *   * a new officer, to be called the solicitor general of the United States, part of whose duty it shall be to try these cases in whatever courts they may arise.   We propose to have a man of sufficient learning, ability, and experience that he can be sent to New Orleans or to New York, or into any court wherever the Government has any interest in litigation, and there present the case of the United States as it should be presented.(63)

The bill was passed by both houses and signed into law by President Grant on June 22, 1870.(64)   Section 2 provided:

That there shall be in said Department an officer learned in the law, to assist the Attorney-General in the performance of his duties, to be called the solicitor-general, and who, in case of a vacancy in the office of Attorney-General, or in his absence or disability, shall have power to exercise all the duties of that office.(65)

Curiously, with the creation of the Office of Solicitor General, the requirement originally set out in the 1789 Judiciary Act -- that the Attorney General be "learned in the law" -- was dispensed with, and no longer appears in the statutes.(66)

III. The Early Solicitors General: Defining the Office

President Grant was serious about reforming the conduct of the government's legal business -- particularly in the Reconstruction South -- and his first appointment as Solicitor General reflected that seriousness.   In October 1870 he nominated Benjamin Helm Bristow of Kentucky to be the first Solicitor General of the United States.   Bristow was a renowned lawyer, a loyal Republican, and an ardent proponent of black civil rights who had served for the previous four years as United States district attorney for the district of Kentucky.   During his tenure as district attorney, Bristow had made a name for himself as one of the most aggressive and successful prosecutors of Ku Klux Klan cases in the country, obtaining 29 convictions for various crimes under the civil rights acts, including a capital sentence for murder.(67)

The 1870 Act created extravagant expectations for the Office of Solicitor General.   Was the Solicitor General to write the legal opinions, to handle the Supreme Court litigation, and to ride circuit, supervising the government's most sensitive litigation?   Was he to be the Attorney General's surrogate, substituting for him during his many absences?   No one person could perform all those tasks. And so it fell to Bristow and the new Attorney General, Amos T. Ackerman of Georgia, to determine which duties would actually be performed by the Solicitor General and which would not.

One of the early imperatives was to consolidate: the Act of 1870, after all, was a retrenchment measure.   Which legal officers and their clerks from other Departments should be absorbed into the new Department of Justice and which could be dispensed with?   Apparently, one particular clerk stood out.   Congress had eliminated a position for a third-class clerk, and the Treasury Solicitor recommended that "Mr. Walt Whitman is the clerk of this class who can be discharged with least detriment to the public service."(68)   Thus was one of this country's great creative spirits unbound from the demands of government service.(69)

The new Solicitor General took little time in establishing primacy over the government's Supreme Court docket.   As Bristow prepared for his first oral argument in United States v. Hodson,(70) his former law partner John Marshall Harlan, still practicing in Kentucky, wrote that this opportunity would give him an opportunity for "brilliant distinction."(71)   Another colleague advised: "Look upward and onward trusting to your God -- to Justice and Right -- in your conflicts before finite judges and all will be well."(72)

Bristow was indeed a success in the Supreme Court, and his presence quickly obviated the need to hire private attorneys to represent the United States in that Court.   During the December 1869 Term, the last one without a Solicitor General, private counsel argued 15 cases on behalf of the United States.(73)   During Bristow's first Term, they appeared in only two cases, and in his second Term, one.   By the third Term, the December 1872 Term, the government's Supreme Court litigation was being handled exclusively by its own attorneys.(74)

Bristow did not take over completely, by any means.   Both the Attorney General and the Assistant Attorneys General handled cases before the Court, and would continue to do so for some time.(75)   During the December 1870 Term of the Court, the first year the Solicitor General appeared, Solicitor General Bristow presented arguments in 13 cases -- three alone, five together with Attorney General Ackerman, and five others with Assistant Attorneys General.   Approximately seven cases were argued that term by the Attorney General and/or the Assistant Attorneys General without Bristow's participation.   The following year, Solicitor General Bristow argued 27 Supreme Court cases -- seven alone, five with the Attorney General, and 15 with the Assistant Attorneys General.

Bristow's successor, Samuel Field Phillips of North Carolina, another accomplished federal civil rights prosecutor,(76) continued in that vein.   During the 1873 Term, Phillips' first full Term as Solicitor General, he argued 18 cases before the Supreme Court -- 11 solo and seven in conjunction with the Attorney General.   During Phillips' remarkable 12-year tenure as Solicitor General -- under four different Republican Presidents and six Attorneys General -- the number of cases argued by Attorneys General declined.(77)   And Phillips's skill as an oral advocate inspires us to this day.   As a distinguished contemporary recalled:

His habit was to discard the minor points of a case, and address himself to the great questions upon which [the Court's] decision ought to rest; and then he was so candid in stating the position of his opponents and the facts appearing in the record, and so lucid and strong in his argument, that he commanded the entire confidence, as well as the respect, of the Court.(78)

In so doing, Phillips was again carrying on a tradition set by Benjamin Bristow.   As a tract written about Bristow's life in connection with his much anticipated bid for the Republican presidential nomination in 1876 described:

One marked characteristic of Mr. Bristow's arguments was an absence of all attempt at display.   He always thoroughly prepared himself, going over every case in which he did not make the brief, with as much care as if nothing had been done in its preparation, and making voluminous notes and memoranda.   But when he came to speak he would never make any further use of these than the posture of the case demanded; and if he thought the case had been sufficiently argued by his associate, would add but a few remarks on one or two of the most vital points.   The great judgment he thus showed in arguing the important questions and leaving the others alone, and never unnecessarily taking up the time of the overworked judges, was one reason why he was so great a favorite with them, and was always listened to with respectful attention.(79)

What President Grant and his successors wanted in a Solicitor General -- and what they got -- were advocates of the first order.

The Solicitors General did not, however, completely fulfill one litigation function Congress had contemplated -- conducting important government litigation around the country.(80)   The early Solicitors General did participate in some important matters in the lower courts.   One of Bristow's first assignments as Solicitor General, for example, was to monitor the district court trial in Ex parte Walton, in which twenty-eight persons were indicted under the Enforcement Act(81) for killing a Negro in Monroe County, Mississippi.(82)   The defendants had filed a writ of habeas corpus alleging that they were being held illegally because the Enforcement Act exceeded Congress's authority under the Fourteenth Amendment.(83)   When Bristow arrived in Oxford, Mississippi, at the close of the trial, tensions were high and order was being maintained by a full company of United States infantry and a cavalry brigade.(84)   The case ended successfully, with the district court confirming, at least for the time being,(85) that the Enforcement Act was a valid exercise of Congress's authority under the Fourteenth Amendment.(86)

But overall, there were simply too many other responsibilities for any Solicitor General to be much of a circuit rider.   In addition to his Supreme Court responsibilities, the Solicitor General was required both to substitute for the Attorney General in the latter's absence and also to issue legal opinions to the President, the Attorney General, and the other department heads on a range of statutory and constitutional matters, and to the United States district attorneys and marshals in particular cases.(87)   As to the former responsibility, the exigencies of Reconstruction politics often required the Attorney General to travel for extended periods from Washington, D.C.(88)   And, as the era was also characterized by a rapid turnover in Attorneys General (recall that Solicitor General Phillips served under six different Attorneys General), the early Solicitors General frequently served as the Acting Attorney General.(89)   Attendance at Cabinet meetings and other functions required of the Attorney General, and responsibility for all of the administrative duties of a Cabinet Secretary, occupied a very considerable portion of the time of the early Solicitors General.

The responsibility to prepare legal opinions was likewise very demanding -- to the point that, by the 1930s Congress was required to create a new Senate-confirmed position, Assistant Solicitor General (later renamed Assistant Attorney General for Legal Counsel), to handle it.(90)   One interesting exercise of that function focused on a burning issue of the early twentieth century -- the meaning of the term "whiskey."   The Secretary of Agriculture had designated certain products as "whiskey," which made them subject to federal taxation.   The distillers complained noisily -- so much so that President Taft, himself a former Solicitor General, referred the issue to his own Solicitor General, Lloyd W. Bowers, for a legal opinion.(91)   Taft obviously felt that a matter of such overriding importance could be entrusted only to an officer "learned in the law."   After hearing testimony that fills 2365 pages, "[a] voluminous mass of documentary evidence," and extensive briefs and argument by multiple counsel, Solicitor General Bowers entered a lengthy and detailed report on the meaning of the term.(92)

Lest one think that perhaps this might not have been the most productive use of a Solicitor General's time, the story does not end there.   When the distillers took exception to Bowers' conclusions, President Taft himself conducted a hearing, in the White House.(93)   Ironically, President Taft went even further than his Solicitor General in adopting the broadest definition of "whiskey" and directed that the regulatory agencies use his construction of the applicable statutes.(94)   Thus do we learn an important lesson that Solicitors General try to impart to their client agencies: on appeal, things can always get worse.

Returning to Benjamin Bristow, and most relevant to the theme of this lecture, Bristow's nonlitigation duties did not prevent him from devoting his attention to what is perhaps the most significant function performed by Solicitors General to this day: determining and harmonizing the litigation position of the United States in courts across the country.   Bristow began the practice of reviewing each case in which the government received an adverse decision in a lower court to determine whether the case was deserving of appeal.   "If his decision was to appeal," one early biographer of Bristow wrote, "it was his job to decide how best to defend the cause of the Government."(95)   Thus, some 80 years after Attorney General Randolph first bemoaned the inability to coordinate the government's legal positions in the lower courts, a sustained and systematic attempt was finally made to supervise and harmonize the government's appellate litigation.(96)

But decades of bureaucratic inertia and institutional jealousy were not easily overcome.   The greatest obstacle to effective consolidation was the fact that, although the 1870 Department of Justice Act reflected an obvious intent to centralize control over the government's litigation in the Department of Justice, Congress had failed to repeal its earlier statutes creating the law officers of the other departments and giving them allegiance to their department heads.   The Commissioner of Internal Revenue, for example, resisted the Attorney General's supervision and asserted that, under his original statute, he still retained unfettered control over internal revenue cases and independent authority to direct the district attorneys in the handling of such cases.(97)   The Solicitor of the Treasury took the position that the unrepealed laws protected his control over Treasury litigation.(98)   Before long, the Solicitor of the Navy and the Examiner of Claims in the Department of State adopted similar positions.(99)

Despite the Attorney General's vigorous protests,(100) Congress made no attempt to clarify the issue and, in fact, took actions that further muddied the waters.   In 1872 it created legal positions in the Interior and Post Office Departments that were nominally called Assistant Attorneys General but that reported to the heads of those Departments.(101)   Even worse, when Congress passed the Revised Statutes a few years later, it reenacted, probably inadvertently, all of the old statutes giving duties and authority to the solicitors of the other departments -- further bolstering their assertions of independence.(102)

IV. The Supreme Court to the Rescue

Fortunately, the seeming ambivalence of Congress was not shared by the Supreme Court, which played a key role in consolidating the government's litigation.   The Justices were no doubt frustrated indeed to be subjected to a succession of attorneys who ostensibly spoke on behalf of the United States, but who took inconsistent and ill-considered positions on questions of federal law.   And when the Justices had opportunities to do something about it, they did.

In 1866 the Supreme Court held, in a case called The Gray Jacket, that where the United States appeared through the Attorney General or his representative, no counsel could be heard taking a conflicting position on behalf of another department of the government.(103)   Two years later, in the Confiscation Cases, in an opinion written by Justice Nathan Clifford, himself a former Attorney General, the Supreme Court expanded this rule and held that the Attorney General had control over -- including the power to dismiss -- any action brought in the name of, or for the benefit of, the United States in any court.(104)   Likewise, in the 1878 case of United States v. Throckmorton, the Supreme Court upheld the Attorney General's contention that a suit by the United States or any of its agencies to set aside a patent to land could only be brought by or at the direction of the Attorney General.(105)

The capstone of this line of authority was United States v. San Jacinto Tin Co.,(106) argued for the United States by Solicitor General George Jenks and decided in 1888.   The Attorney General had brought an action to set aside a land patent allegedly obtained by fraud, but the defendant argued that the Attorney General had no express authority, statutory or constitutional, to commence a suit in the name of the United States to set aside a patent or other solemn instrument.   Echoing earlier positions taken by past Presidents and Attorneys General,(107) the Court reasoned that authority over such litigation must exist somewhere; that some officer of the government must decide what cases are appropriate for the government to bring; and that the appropriate officer is the Attorney General, or his statutory delegate, the Solicitor General.

The Court based that holding on two grounds.   First, Congress had vested supervisory authority in the Attorney General over the government's litigation, and that authority in turn had been delegated to the Solicitor General.   And second, when Congress created the office of Attorney General in 1789, it was presumed to have been aware that the English Attorney General possessed absolute control over governmental litigation, so the Court assumed that Congress similarly intended to confer that same authority on the American Attorney General.   Thus, under the Court's reasoning, the Attorney General had -- and had always had -- supervisory authority over the government's litigation, even in the lower courts, unless a statute placed a specific duty elsewhere.(108)

San Jacinto was in many ways the culmination of an effort begun by Edmund Randolph in his 1791 letter to President Washington.   After decades of legislative efforts by Presidents and Attorneys General, the primacy of the Attorney General's authority over the conduct of federal litigation -- and the responsibility of the Solicitor General to supervise that litigation -- was largely secured.

Occasionally, even to this day, questions still arise -- particularly with respect to independent agencies.   As times change, and new agencies are created, the dialectic between an independent agency's desire to advance its mandate and the overriding need for the government to speak with one voice continues -- with understandable centrifugal tendencies on the agencies' part.   On balance, the Supreme Court appears to remain strongly convinced of the desirability of a centripetal counterweight.   Earlier this decade, for example, in FEC v. NRA Political Victory Fund, the Court held that the Federal Election Commission lacked authority independent of the Solicitor General to petition for certiorari even in actions brought under the very statute the FEC was created to administer.(109)   Ultimately, of course, the power to allocate litigating authority belongs to Congress and the President.   Still, particularly given the modern inclination to create Executive Branch agencies that are "independent" of the President, it is wise to remember the very substantial benefits in retaining approval authority centralized in the Solicitor General -- so that when the United States speaks, it is with a voice that has considered, and reflects, the interests of the whole United States.

V.   Conclusion

In the nearly thirteen decades since the Office of the Solicitor General was created, its core litigation functions have largely remained the same.   During the past Term, for example, our office handled approximately 2800 cases before the Supreme Court.   We filed 30 petitions for a writ of certiorari and participated in oral argument in 75% of the cases the Court heard on the merits.   During that same one-year period, the Solicitor General decided whether to authorize appeal or to appear as an intervenor or amicus in over 2300 cases, covering subjects as varied as the activities of the government we represent.

The nonlitigation duties of the early Solicitors General are largely gone -- and that absence may be, after all, one of the principal charms of the position.   Since creation of the office of Deputy Attorney General in 1953, the Solicitor General has largely been relieved of the administrative and policy functions he served during the first hundred years.(110)   The other nonlitigation responsibility of the early Solicitors General -- writing legal opinions for the President and the other Departments -- was assigned elsewhere even earlier.   By the 1930s, the press of litigation -- particularly in the Supreme Court -- had pushed the opinion-writing function of the Solicitor General to the very back burner.   In 1933, Congress created a new position, Assistant Solicitor General, to assume principal responsibility for preparation of legal opinions, but after several years in which the Solicitor General himself was unable to devote enough time to review the opinions, form followed function and the position was restyled Assistant Attorney General, where it remains today.(111)   The situation that provoked this transfer was perhaps best epitomized in the front-page article of the New York Times on December 11, 1935, recounting Solicitor General Stanley Reed's physical collapse from exhaustion during the second day of his oral argument before the Supreme Court in defense of successive pieces of New Deal legislation.(112)

Since the early 1950s, relief from non-litigation responsibilities has left modern-day Solicitors General free to concentrate on the "interest of the United States" with respect to litigation.   That concept is elusive, and it is often difficult to discern just what position the interest of the United States supports.   But so long as Solicitors General apply the principle best articulated by my predecessor Frederick Lehmann -- that "[t]he United States wins its point whenever justice is done its citizens in the courts"(113) -- and so long as Solicitors General maintain fidelity to the rule of law, it will continue to be true, as Francis Biddle wrote following his tenure in the office, that "[t]he Solicitor General has no master to serve except his country."(114)


 

* The author gratefully acknowledges the considerable assistance of David B. Salmons, a Bristow Fellow in the Office of the Solicitor General during the October Term 1997, and David C. Frederick, an Assistant to the Solicitor General.

1. Eugene C. Gerhart, America's Advocate: Robert H. Jackson 143 (1958); Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law171 (1987).

2. Caplan, supra note 1, at 261.

3. Act of June 22, 1870, ch. 150, § 2, 16 Stat. 162.

4. In addition to his offices in the Department of Justice, the Solicitor General has a working office in the Supreme Court building, located on the main floor in close proximity to the courtroom.

5. See, e.g., 8 Op. Off. Legal Counsel 183, 193-99 (1984); 40 Op. Att'y Gen. 158 (1942); 39 Op. Att'y Gen. 11 (1937); 38 Op. Att'y Gen. 252 (1935); 38 Op. Att'y Gen. 136 (1934); 36 Op. Att'y Gen. 21 (1929); 31 Op. Att'y Gen. 475, 476 (1919).

6. See Caplan, supra note 1, at 3.

7. Simon E. Sobeloff, Attorney for the Government: The Work of the Solicitor General's Office, 41 A.B.A. J. 229, 229 (Mar. 1955).

8. Among the more comprehensive analyses are Caplan, supra note 1; Symposium: The Role and Function of the United States Solicitor General, 21 Loy. L.A. L. Rev. 1047 (1988); and Rebecca Mae Salokar, The Solicitor General: The Politics of Law (1992).

9. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93.   That the Attorney General's first enumerated duty has always been to represent the United States in the Supreme Court underscores the Attorney General's close connection with Article III courts.   This connection becomes even more pronounced when one considers that in the original bill of the Judiciary Act introduced in the Senate, the Attorney General was to be appointed by the Supreme Court, and the district attorneys by the district courts, rather than by the President.   See 4 The Documentary History of the Supreme Court of the United States, 1789-1800 106-07 (Maeva Marcus & James R. Perry ed., Colum. Univ. Press 1992); Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 108-09 (1924).   For a discussion of the brief legislative history regarding the change, see Susan L. Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 Duke L.J. 561, 570-72 & n.33.

10.   As a result, all of the Attorney General's opinions, letters, and briefs had to be written out in his own hand, or by staff provided at his own expense.   See Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive, 154-58 (1937); James S. Easby-Smith, Edmund Randolph -- Trail Blazer, 12 J. Bar Ass'n D.C. 415, 419 (1945) (hereinafter cited as Easby-Smith, Edmund Randolph); Sewell Key, The Legal Work of the Federal Government, 25 Va. L. Rev. 165, 175-76 (1939).   Moreover, because Congress had not even thought it necessary to provide the Attorney General with office space, for years the Attorney General served as an absentee, coming to the seat of government only when called on specific business.   See James S. Easby-Smith, The Department of Justice: Its History and Functions 8 (1904) (hereinafter cited as Easby-Smith, Department of Justice).

11. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 92-93.

12. Id.; see Cummings & McFarland, supra note 10, at 19; Easby-Smith, Department of Justice, supra note 10, at 5.

13. Letter from George Washington to Edmund Randolph (Sept. 28, 1789), reprinted in 30 Writings of George Washington 418-19 (John C. Fitzpatrick ed., Gov't Printing Off. 1939); see Cummings & McFarland, supra note 10, at 19 & n.37; Easby-Smith, Edmund Randolph, supra note 10, at 419.

14. Easby-Smith, Edmund Randolph, supra note 10, at 420; Henry Barrett Learned, The President's Cabinet 159 (1912); Rex E. Lee, Lawyering in the Supreme Court: The Role of the Solicitor General, 21 Loy. L.A. L. Rev. 1059, 1061 (1988).

15. 2 U.S. (2 Dall.) 409 (1792).   At issue was the constitutionality of the Invalid Pensions Act of 1792, which required the circuit courts to receive the applications of invalid veterans of the Revolutionary War and to certify to the Secretary of War their opinions on the applications.   Many of the circuit judges and justices believed the act to be unconstitutional because it conferred upon the courts a nonjudicial function.   When the application of William Hayburn, an invalid veteran, came before a panel of judges in Pennsylvania composed of Justices Wilson and Blair and District Judge Peters, the judges refused to take any action.   For a thorough treatment of Hayburn's Case and its subsequent, if not misguided, impact on the Court, see Maeva Marcus & Robert Teir, Hayburn's Case: A Misinterpretation of Precedent, 1988 Wis. L. Rev. 527.

16.   See 1 The Documentary History of the Supreme Court of the United States, 1789-1800 206 (Maeva Marcus & James R. Perry ed., Colum. Univ. Press 1992).   After hearing Randolph's argument in his capacity as Hayburn's counsel, the Court concluded it would hold the motion under advisement until the next term -- by which time, it turned out, Congress had revised the underlying statute, making resolution of the case unnecessary. Id.; 2 U.S. (2 Dall.) at 409-10.

17. Letter from Edmund Randolph to George Washington (Dec. 28, 1791), reprinted in 1 American State Papers (Misc.) 45 (1834); see Easby-Smith, Edmund Randolph, supra note 10, at 424-25; Key, supra note 10, at 176.

18. American State Papers, supra note 17, at 45-46; see 2 Annals of Cong. 1765-66 (1791); Easby-Smith, Edmund Randolph, supra note 10, at 425.

19. See Report from Rep. Lawrence (Jan. 18, 1792), reprinted in 1 American State Papers 46 (1834); 3 Annals of Cong. 329-31 (1792); see also Bloch, supra note 9, at 585-89; Easby-Smith, Edmund Randolph, supra note 10, at 425; Key, supra note 10, at 176-79.

20.   Indeed, 27 years passed before Congress, in 1818, finally gave the Attorney General a clerk and made some provision for office space.   See Act of Apr. 20, 1818, ch. 87, § 6, 3 Stat. 445, 447.   The following year, Congress provided a small contingent fund of $500 for such essentials as stationery, fuel, and "a boy to attend the menial duties."   See Act of Mar. 3, 1819, ch. 54, 3 Stat. 496, 500; Cummings & McFarland, supra note 10, at 80-81, 155-56; Easby-Smith, Department of Justice, supra note 10, at 10.   It took 62 years before the Attorney General's salary was made comparable to other cabinet officers, see Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189, 212; Easby-Smith, Department of Justice, supra note 10, at 15, and 70 years before Congress gave the Attorney General supervision and control over the district attorneys, see Act of Aug. 2, 1861, ch. 37, 12 Stat. 285, 285-86; Cummings & McFarland, supra note 10, at 142, 218, 491; Bloch, supra note 9, at 618-20.

21. See 1 A Compilation of the Messages and Papers of the Presidents, 1789-1897 577-78 (James D. Richardson ed., Bureau of Nat'l Lit. 1897).

22. 2 A Compilation of the Messages and Papers of the Presidents, 1789-1897 453-54 (James D. Richardson ed., Bureau of Nat'l Lit. 1897).

23. 6 Cong. Deb. 276, 276 (1830).

24. Id. For a discussion of Jackson's proposal, and Webster's successful opposition, see Key, supra note 10, at 177-79; Cummings & McFarland, supra note 10, at 144-46.

25. 6 Cong. Deb. 276, 277.

26. Act of May 29, 1830, ch. 153, 4 Stat. 414, 414.   Although President Jackson signed Webster's bill into law, he nonetheless remained unsatisfied with the structure of the government's legal work.   In his second annual message to Congress, he stated, "I am convinced that the public interest would be greatly promoted by giving [the Attorney General] the general superintendence of the various law agents of the Government, and of all law proceedings, whether civil or criminal, in which the United States may be interested."   3 A Compilation of the Messages and Papers of the Presidents 1789-1897 1090 (James D. Richardson ed. Bureau of Nat'l Lit. 1897).

27.   On Webster and Adams, see generally Samuel Flagg Bemis, John Quincy Adams and the Union 150-51, 155-57, 289-90, 311 (1956).

28. For example, in his first annual message on December 2, 1845, President James Polk called attention to the need to place the Attorney General on the same footing as the heads of the executive departments. 5 A Compilation of the Messages and Papers of the Presidents, 1789-1897 2265 (James D. Richardson ed. Bureau of Nat'l Lit., 1897); see also Cummings & McFarland, supra note 10, at 147-48; Key, supra note 10, at 180.   Shortly thereafter bills were introduced in both the House and Senate, the latter under the sponsorship of former Attorney General John M. Berrien, to implement Polk's proposals.   Most notably, the bills would have made it the duty of the Solicitor of the Treasury "to act in subordination to the Attorney General."   Opposition arose and, as with previous proposals, the bill was tabled.   Cummings & McFarland, supra note 10, at 148 (citing Cong. Globe, XV 613, 873, 881, 1130-31, 1134 (1845)).

29. 6 Op. Att'y Gen. 326, 335 (1854).

30. See H.R. Exec. Doc. No. 95, 33d Cong., 1st Sess. (1854).

31. See Exec. Order No. 1855-17-2 (July 16, 1855) (Order of President Pierce); Cummings & McFarland, supra note 10, at 152, 218.

32. Act of May 15, 1820, ch. 107, § 1, 3 Stat. 592, 592. Prior to this time, the power to institute such suits had been lodged in the Comptroller of the Treasury, see Act of Mar. 3, 1797, ch. 20, §§ 1,3, 1 Stat. 512, 514-15; see also Key, supra note 10, at 177.

33. 6 Cong. Deb. 322-24; Key, supra note 10, at 177. A similar situation arose in the Post Office Department.   In recommending the bill to create the Department of Justice in 1870, Representative William Lawrence of Ohio lamented that "[t]he Auditor of the Post Office Department, in charge of the prosecution of mail depredations -- immense in number and importance as they are -- and controlling them throughout the country, is merely a fourth-class clerk.   He gives opinions and directions, and has compiled and published the Post Office laws without the aid of or the accuracy to be secured by the profounder attainments and riper skill of the Attorney General."   Cong. Globe, 41st Cong., 2d Sess., 3038 (1870).

34. See Key, supra note 10, at 177. The amount of litigation directed by the agent was significant.   By 1828 he was overseeing more than 3000 pending cases.   See 1 Op. Att'y Gen. 694 (1824); Cummings & McFarland, supra note 10, at 144.   Needless to say, this situation was in need of reform.   See id.; Key, supra note 10, at 177.

It is not entirely fair to say that Congress did nothing in the face of frequent requests by the Executive to reform and consolidate the legal work of the government in the decades prior to the Civil War.   As early as 1824, the Attorney General was given control over litigation involving land claims arising out of the Louisiana Purchase, and he was charged with instructing the district attorneys in such litigation and with deciding which adverse district court rulings to appeal.   Act of May 26, 1824, ch. 173, § 9, 4 Stat. 52, 55; 6 Op. Att'y Gen., supra note 29, at 337.   In 1852 Congress gave the Attorney General supervisory authority over a large body of suits dealing with land claims in California and directed the Attorney General to review the transcripts of cases decided by the commission charged with adjudicating the claims to determine which cases should be appealed to the district courts and to the Supreme Court.   See Act of Mar. 3, 1851, ch. 41, 9 Stat. 631; Act of Aug. 31, 1852, ch. 108, § 12, 10 Stat. 76, 99.   Describing those responsibilities to the President and to Congress, Attorney General Cushing stated in 1854 that "[t]his branch of business *   *   * involves responsible present relations to, and ultimate management of, a large number of suits of the highest importance and interest, and therefore constitutes one of the most onerous of the present occupations of the Attorney General."   6 Op. Att'y Gen., supra note 29, at 338.   And in 1853 Congress finally set the salary of the Attorney General on a par with that of the heads of the executive departments.   Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189, 212; see also Easby-Smith, Department of Justice, supra note 10, at 15.

35. Act of May 29, 1830, ch. 153, § 5, 4 Stat. 414, 415.   See supra note 26 and accompanying text.

36. See Cummings & McFarland, supra note 10, at 220-22, Key, supra note 10, at 179.

37. Act of July 2, 1836, ch. 270, § 16, 5 Stat. 80, 83.

38. By the outbreak of the Civil War, the law officers of the United States, other than the district attorneys, were the Attorney General, the Solicitor of the Treasury, the Solicitor of the Court of Claims, and the Assistant Attorney General.   Soon would be added the Solicitor and Naval Judge Advocate General, Solicitor for the War Department, Post Office Solicitor, Assistant Solicitor for the Treasury, Solicitor of Internal Revenue, and Solicitor for the Department of State.   See Cong. Globe, 41st Cong., 2d Sess., 3035 (1870); Cummings & McFarland, supra note 10, at 221-22.

39. Act of Aug. 2, 1861, ch. 37, 12 Stat. 285.

40. Act of Aug. 6, 1861, ch. 65, 12 Stat. 327; see also Act of Mar. 3, 1863, ch. 76, § 13, 12 Stat. 737, 741; see Cummings & McFarland, supra note 10, at 218-19.

41. Act of Mar. 2, 1867, ch. 169, § 3, 14 Stat. 471, 471-72.

42. Cong. Globe, 41st Cong., 2d Sess., 3035 (1870). Representative Lawrence of Ohio, one of the original sponsors of the 1870 Department of Justice Act, explained the growth in the expenditures for outside counsel as follows:

Under various laws, and sometimes, perhaps, without any very definite law, a practice has grown up largely since 1860 of giving employment to counsel for the Government in almost every conceivable capacity and under a great variety of circumstances -- to counsel who are not officers of the Government, nor amenable as such.   Under appropriations for collecting the revenues, and other general purposes, very large fees have been paid for services which could have been performed by proper law officers at much less expense.

Id. at 3038.

43. H.R. Exec. Doc. No. 40-198, at 3-4 (1868). Notably, the average annual expenditure for outside counsel in Supreme Court cases during this period was greater than the $7500 annual income originally set for the Solicitor General.   See Act of June 22, 1870, ch. 150, § 10, 16 Stat. 162, 163.

44. See Cong. Globe, 41st Cong., 2d Sess., 3038 (1870).

45. Id. at 3035. The obvious potential for waste and abuse in this system caused Representative Lawrence to describe the bill to create the Department of Justice as "a measure of economy" designed to "reduce expenditures for legal services to the Government and put an end to a system which might be perverted to purposes of favoritism."   Id. at 3038.   Indeed, Representative Lawrence predicted that the 1870 Act would "save the unnecessary expenditure of more than one hundred thousand dollars annually for extra-official fees to counsel."   Id. at 3065.

46. Among other things, the Senate wanted to know whether the staff of the Attorney General's Office was sufficient; what amounts had been spent securing nongovernmental attorneys to represent the government's interests in the Supreme Court and for similar counsel to assist the district attorneys; and whether the solicitors and law clerks in the various departments and the Court of Claims could be dispensed with and their duties placed under the direction of the Attorney General, "so as to bring all the law officers of the Government under one head, with saving of expense and benefit to the public service."   Cong. Globe, 40th Cong., 2d Sess., 196 (1867); see also Cummings & McFarland, supra note 10, at 222.

47. S. Exec. Doc. No. 40-13, at 2 (1867).

48. Id.

49. As is the case of the attorney general, the position is of English origin.   Sir William Holdsworth explains that by 1509 the position of the King's solicitor was well entrenched.   6 A History of English Law 462-63 (1987). Like his counterpart in private practice, the King's solicitor was inferior to the King's attorney and served as a general assistant to the attorney in the handling of the King's legal business.   Id. at 463, 469-70.   Indeed, beginning in 1530, it became the custom on the change of law officers to make the King's solicitor the King's attorney.   Id. at 463.   By the seventeenth century, the King's attorney and solicitor were the only officials authorized to initiate legal proceedings on behalf of the Crown, and they were given direction over the King's lesser law officers.   Id. at 471-73.   They also became important political, as well as legal, counselors to the crown, but the basic role of the King's solicitor -- to assist the King's attorney in fulfilling his important legal responsibilities -- has remained unchanged.   Id.

50. See infra notes 70-92 and accompanying text.

51. See supra notes 9-18 and accompanying text.

52. Cong. Globe, 40th Cong., 2d Sess., 153 (1867).

53. Cong. Globe, 40th Cong., 2d Sess., 934 (1868).

54. See id. at 196, 934, 1116, 1271-73, 1633, 1860, 2480 (1868); Cong. Globe, 41st Cong., 2d Sess., 3035 (1870).   For a general description of these legislative efforts, see Cummings & McFarland, supra note 10, at 223.

55. Cong. Globe, 40th Cong., 2d Sess., 1271-73.

56. See Cummings & McFarland, supra note 10, at 223.

57. Act of June 25, 1868, ch. 71, § 5, 15 Stat. 75, 75-76.

58. Act of Mar. 3, 1869, ch. 121, 15 Stat. 283, 294.

59. See Cummings & McFarland, supra note 10, at 224.

60. Cong. Globe, 41st Cong., 2d Sess., 1568 (1870).   Although Lawrence disagreed with certain minor aspects of the bill -- for example, he preferred calling the new department the "law department" -- he gave it his full support.   See id. at 3039.

61. Id. at 4490.

62. Id. at 3036.

63. Id. at 3035. Jenckes further explained that "[o]ne of the objects of this bill is to establish a staff of law officers sufficiently numerous and of sufficient ability to transact this law business of the Government in all parts of the United States."   Id.

64. Act of June 22, 1870, ch. 150, 16 Stat. 162.   The Office of the Solicitor General of the United States and the Department of Justice came into formal existence on July 1 of that year.   Id. § 19, 16 Stat. at 165.

65. Id. § 2, 16 Stat. at 162.

66. See id. § 1, 16 Stat. at 162; Rev. Stat. §§ 346, 347 (1878); 28 U.S.C. § 503 (1994); see also Charles Fahy, The Office of the Solicitor General, 28 A.B.A. J. 20, 22 (1942).

67. Dictionary of American Biography 55 (1929). One case from Bristow's days as district attorney is of particular note.   In the fall of 1869, Bristow secured the murder conviction of two white men, John Blyew and George Kennard, for the brutal murder of a black family.   Bristow brought the case in federal court under a section of the Civil Rights Act of 1866, Act of Apr. 9, 1866, ch. 31, § 3, 14 Stat. at 27, which gave federal courts jurisdiction over "all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State *   *   * where they may be," any of the rights granted by the act, including the rights to "give evidence" and to have "full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."   Id. § 1, 14 Stat. at 27.   Bristow brought the murder charges in federal court because all of the witnesses to the murder were black, and Kentucky law prohibited blacks from testifying against white defendants.   See Robert D. Goldstein, Blyew: Variations on a Jurisdictional Theme, 41 Stan. L. Rev. 469 (1989).

The defendants were found guilty of murder and sentenced to death.   They appealed to the Supreme Court, arguing that the district court lacked jurisdiction over what was in essence a state murder trial.   When the Supreme Court took up their claim, Benjamin Bristow, now the newly appointed Solicitor General, together with Attorney General Amos T. Ackerman, presented the case for the government.   The Supreme Court held that the so-called "affecting jurisdiction" of the act only applied to cases in which the affected persons were the actual parties to the case.   Blyew v. United States, 80 U.S. (13 Wall.) 581, 594 (1871). This excluded the impact on the black witnesses, mostly surviving family members, and it also excluded the victims, since "[m]anifestly the act refers to persons in existence."   Id. at 594.   Thus, the Court held that the district court lacked jurisdiction and vacated the convictions.   Bristow's efforts, however, were not entirely in vain. Due in part to Bristow's tenacity in pursuing the issue, Kentucky repealed the testimonial bar in January 1872, shortly before the Supreme Court handed down its decision in Blyew.   See Goldstein, supra at 563; Ross A. Webb, Benjamin Helm Bristow: Border State Politician 82-85 (1969).   Some modicum of justice was eventually imposed on the culprits.   Kennard was convicted of the murders in state court in 1876 and sentenced to life imprisonment.   He served approximately nine years in prison before being pardoned by the governer on the ground of poor health.   See Goldstein, supra, at 564 n.358.   Blyew's first trial, in 1873, resulted in a hung jury.   He escaped before he could be retried and remained free for 17 years, until he was found and convicted of the murders in 1890.   Although sentenced to life imprisonment, Blyew served less than six years in prison before receiving a pardon from the Democratic acting governor of North Carolina, who expressed doubts about the evidence used to convict Blyew.   See id. at 563-66.

68. Letter from Secretary Wilson to Attorney General Williams (June 30, 1874), quoted in Cummings & McFarland, supra note 10, at 228 n.27.   Whitman had actually been in poor health for some time and for at least a year prior to his discharge had employed a substitute to fulfill his duties to the Department.   See George Rice Carpenter, Walt Whitman (1924).

69. On June 30, 1874, Attorney General George H. Williams wrote Whitman that his service would be terminated as of July 1, 1874, although shortly thereafter the Attorney General granted Whitman two months' pay, which was customary in such circumstances.   See Gay Wilson Allen, The Solitary Singer: A Critical Biography of Walt Whitman, 461 (1967).   Unfortunately, this was not the first time Whitman was faced with discharge from public employment.   In May 1865 President Andrew Johnson's newly appointed Secretary of the Interior, James Harlan, issued a circular to the bureau heads in the department asking them to report as to the "loyalty" of each of the employees under him, and also "whether there are any whose fidelity to duty or moral character is such as to justify an immediate dispensation of their services."   Id. at 344 (quoting a New York Herald article dated May 31, 1865).   Word apparently got back to Harlan of Whitman's authorship of Leaves of Grass, which was by then in its third edition.   Harlan, a devout Methodist from Iowa, apparently concluded that Whitman failed his test for "moral character" and abruptly sent Whitman a notice dated June 30, 1865, informing him that his services would be "dispensed with from and after this date."   Id. at 345.   With the aid of William O'Connor, a prominent Washingtonian and loyal supporter of Whitman, and Assistant Attorney General J. Hubley Ashton, it was arranged instead for Whitman to be transferred to a position as a clerk in the Attorney General's Office.   The entire episode received moderate press coverage, with one paper wryly commenting that Whitman "now occupies a desk in the Attorney General's office, where we suppose they are not so particular about morals."   Id. at 347 (quoting July 12, 1865, editorial in the Eagle).

70. 77 U.S. (10 Wall.) 395 (1870).

71. Letter from John M. Harlan to Bristow (Nov. 16, 1870), quoted in Webb, supra note 67, at 74.

72. Letter from W.A. Meriwether to Bristow (Nov. 18, 1870), quoted in Webb, supra note 67, at 74. Justice Noah Swayne's opinion for the Court accepted the new Solicitor General's position that ignorance can never be the basis of a legal right in its entirety.   See Hodson, 77 U.S. (10 Wall.) at 409.

73. These figures are derived from the counsel notations in the early published cases, and are less than conclusive because special counsel for the government were apparently not consistently designated.   See Lee, supra note 14, at 1065 & n.20.

74. See Lee, supra note 14, at 1066.

75. Indeed, it was not until the 1920s that the Solicitor General's name began appearing on all of the government's briefs to the Supreme Court.   See id.

76.   Phillips served as Assistant District Attorney in 1871 and 1872 at Raleigh, North Carolina.   During this time, he oversaw the prosecution of several important Klan cases.   See R.H. Battle, Obituary of Samuel Field Phillips, LL.D.," 1 N.C. L.J. 22, 27 (1904); see also Robert D. Miller, Samuel Field Phillips: The Odyssey of a Southern Dissenter, 58 N.C. Hist. Rev. 263, 275 (1981).

77.   From a search of WESTLAW's database, for example, in 1873 Attorney General Williams appears to have participated in 10 oral arguments; however, in none of these did he argue solo.   Attorney General Charles Devens, who held office between 1877 and 1881, participated in nine arguments during his entire tenure.   And Attorney General Benjamin H. Brewster, who served between 1881 and 1885, when both he and Phillips resigned, appears to have argued only two cases as Attorney General.   Subsequent Attorneys General were often more involved in Supreme Court matters.

78. Battle, supra note 76, at 26-27.   Phillips is perhaps best known for an argument that he presented after leaving the Solicitor General's Office.   In 1896 he helped represent Homer Plessy in Plessy v. Ferguson, 163 U.S. 537 (1896).   Interestingly, the only vote Phillips got in Plessy was from Justice John Marshall Harlan, Benjamin Bristow's former Kentucky law partner.

79. Some Facts about the Life and Public Services of Benjamin Helm Bristow of Kentucky 21-22 (1876), Bristow Papers, Library of Congress.   In fact, Bristow served the Supreme Court with such distinction that his name was often mentioned to fill the vacancy of Associate or Chief Justice.   See Charles Fairman, Reconstruction and Reunion, 1864-68; 7 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States, 21-24, 35, 504-05 (1987); Webb, supra note 67, at 128, 131, 267-73.

80. See supra text accompanying note 63.

81. Act of May 31, 1870, ch. 114, 16 Stat. 140.

82. See Webb, supra note 67, at 88; James Wilford Garner, Reconstruction in Mississippi, 351-352 (1901).

83. Because of the constitutional issues presented, a select committee created by Congress to investigate abuses of the Ku Klux Klan, the Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States, would later describe the case as "[t]he first important trial in the United States under the enforcement act," S. Rep. No. 42-41, at 936 (1872), and the Committee included the entirety of the trial transcript, minus argument by counsel, in its report.   See id. at 936-87.

84. See Webb, supra note 67, at 88; Cummings & McFarland, supra note 10, at 235-36.

85. The Supreme Court later struck down portions of the Enforcement Act in United States v. Reese, 92 U.S. 214 (1875), and narrowly construed other portions of the Act in United States v. Cruikshank, 92 U.S. 542 (1875).   Both cases were argued for the government by Solicitor General Phillips and Attorney General Williams.

86. Webb, supra note 67, at 88; Garner, supra note 82, at 351-52.   Despite such victories, Klan convictions were difficult to obtain.   Between the problems of packed juries and perjured testimony, the district attorneys complained of their inability to secure convictions, despite the numerous indictments they filed.   See id.; H.R. Exec. Doc. No. 42-268, at 30-41 (1872); see also Webb, supra note 67, at 88; Garner, supra note 82, at 351-52.   Bristow later wrote to another district attorney facing similar challenges: "The higher the social standing and character of the convicted party, the more important is a vigorous prosecution and prompt execution of judgment."   Letter from Bristow to D.H. Starbuck (Oct. 2, 1871), quoted in Webb, supra note 67, at 92; see also Cummings & McFarland, supra note 10, at 237.

87. Section 4 of the 1870 Department of Justice Act provided:

That questions of law submitted to the Attorney-General for his opinion, except questions involving a construction of the Constitution *   *   * may be by him referred to such of his subordinates as he may deem appropriate, *   *   * and if the opinion given by such officer shall be approved by the Attorney-General, such approval so indorsed thereon shall give the opinion the same force and effect as belong to the opinions of the Attorney-General.

Act of June 22, 1870, ch. 150, § 4, 16 Stat. 162, 162. The Attorneys General, particularly during Solicitor General Phillips's tenure, increasingly took advantage of this provision to assign opinion-writing responsibilities to the Solicitor General.   See, e.g., 15 Op. Att'y Gen. 491-665 (1875); 14 Op. Att'y Gen. 585-684 (1872); 13 Op. Att'y Gen. 572-73 (1870), 588-91; see also Webb, supra note 67, at 73-74.

88.   As Bristow's biography reflects, drawing upon his letters during the period, Attorney General Ackerman's frequent and long absences from the Capital placed a considerable weight on the Solicitor General.   See Webb, supra note 67, at 86, 90, 92, 94.

89. See, e.g., 17 Op. Att'y Gen. 240-50 (1881); 15 Op. Att'y Gen. 28-35, 106-09 (1875-1876); 13 Op. Att'y Gen. 440-66 (1871).

90. See Act of June 16, 1933, ch. 101, § 16, 48 Stat. 283, 307-08; Reorg. Plan No. 2 of 1950, §§ 3, 4, 64 Stat. 1261, 1261.

91. Proceedings Before and By Direction of the President Concerning the Meaning of the Term "Whiskey" 1243-60 (1909) (report of Solicitor General Bowers).

92. Id. at 1244.

93. Id. at 1265-1325 (hearing before President Taft on distillers' exceptions to Solicitor General Bowers's report).   Also present at President Taft's hearing was the Attorney General, George W. Wickersham, and the Secretary of Agriculture, James Wilson.   Before hearing argument on the distillers' exceptions, President Taft noted the novelty of such a proceeding, stating that "I want to say that it is not usual for the President, I think, to give hearings of this sort."   Id. at 1266.

94. See Nancy V. Baker, Conflicting Loyalties: Law and Politics in the Attorney General's Office, 1789-1990 14 (1992); Cummings and McFarland, supra note 10, at 513.

95. Webb, supra note 67, at 74.  Unfortunately, we have not been able to locate in the National Archives the original sources on which Webb relied for that statement.

96. Although the Attorney General was given formal supervisory authority over the district attorneys as early as 1861, the press of the Attorney General's other work, the inadequacy of his budget and staff, and confusion over the overlapping authority of the Solicitor of the Treasury and other departmental officers made it impossible for the Attorney General to exert control over the district attorneys in all but the most important of cases.   See Cummings & McFarland, supra note 10, at 219-20.

97. 1871 Att'y Gen. Ann. Rep. 5.   In requesting that Congress "destroy the exception which is now supposed to exist in internal revenue cases," Attorney General Ackerman, quite accurately it turned out, warned that "[t]he theory upon which such control is retained, if consistently applied, would make district attorneys controllable by an officer of the Post-Office Department in post-office cases; by the Commissioner of Customs in custom cases; by the Commissioner of Pensions in pension cases; by the Commissioner of Indian Affairs in cases relating to Indians; and so on."   Id.

98. Id. at 6 ("It was probably the purpose of Congress that the distribution of business in the Department of Justice should be made by the Attorney General in his discretion, but the laws, mostly of long standing, which impose specific duties upon the Solicitor of the Treasury, interfere with such discretionary distribution.").

99. 1872 Att'y Gen. Ann. Rep. 16.   After reminding Congress that the Department of Justice Act transferred the Solicitor of the Treasury, the Solicitor of Internal Revenue, the Naval Solicitor, and the examiner of claims in the Department of State to the Justice Department, Attorney General Williams complained that "the act implies, and is so construed by the heads of the different Departments, that their duties are to be the same as they were before the transfer was made, and that their practical relations to the Departments to which they were attached before said act was passed remained unchanged."   Id.   He concluded that "[w]hile these officers are nominally subjected to the control of this Department, they are attached to and exclusively perform duties assigned to them by the heads of other Departments.   Obviously, this is an arrangement which not only creates a divided jurisdiction, but produces confusion in the transaction of the public business."   Id.

100. See 1871 Att'y Gen. Ann. Rep. 5-6; 1872 Att'y Gen. Ann. Rep. 16.   Attorney General Williams in 1872 secured the introduction into the House of a bill to put an end to the remaining divisions of authority in his department and strongly urged passage of the measure in his annual reports to Congress in 1872 and 1873, see 1872 Att'y Gen. Ann. Rep. 16; 1873 Ann Rep. Att'y Gen. 18, but to no avail.

101. Act of June 8, 1872, ch. 335, § 3, 17 Stat. 283, 284; 1872 Att'y Gen. Ann. Rep. 16.

102. See Key, supra note 10, at 185.   Those statutory impediments to creating a unified legal apparatus were exacerbated by Congress's failure to provide adequate quarters for the new Department of Justice.   In his annual report to Congress, less than six months after the creation of the Department, Attorney General Ackerman complained that "the offices of this Department are dispersed in five buildings, some of them at a considerable distance from the others."   1870 Att'y Gen. Ann. Rep. 1.   The departmental solicitors were left in their old offices in close proximity to their department heads, with whom they continued their prior allegiances with little or no regard for the consolidation Congress envisioned in the Department of Justice Act.   Even the Attorney General and the Solicitor General did not share the same office building.   Attorney General Ackerman warned that "[u]ntil a building sufficient for all of them shall be provided, the purpose of Congress to bring under one direction all the law officers of the Executive Departments will not be thoroughly accomplished." Id.

The following year showed some improvements.  The officers of the Justice Department not previously affiliated with other executive departments all moved into three floors of the Freedman's Savings Bank building on Pennsylvania Avenue at Fifteenth Street, where they remained until 1899.   But these offices, too, were less than ideal.   The space was crowded, there was often no heat, and the sewer beneath the building caused foul air to permeate the building, especially in hot weather.   See 1891 Att'y Gen. Ann. Rep. 24; Cummings & McFarland, supra note 10, at 228.   And because of a shortage of space, the department solicitors were again left in their former locations.   By the time of his 1871 report to Congress, "[t]he want of sufficient accommodations in one building," together with the intransigence of the solicitors, had forced Attorney General Ackerman to lower his expectations.   1871 Att'y Gen. Ann. Rep. 5.   "As long as this physical difficulty prevented the literal execution of the law," Ackerman wrote, "it was thought unwise to put other Departments to inconvenience by disturbing the practical relations previously existing between these officers and the heads of those Departments.   But an effort has been made by frequent conference to approach as near as possible to the execution of the intention of Congress, expressed in the law."   1871 Att'y Gen. Ann. Rep. 5. Id.

103. 72 U.S. (5 Wall.) 370 (1866).

104. 74 U.S. (7 Wall.) 454 (1868).

105. 98 U.S. 61 (1878).

106. 125 U.S. 273 (1888).

107. Indeed, there are marked parallels between the Court's reasoning in San Jacinto Tin and Attorney General Randolph's arguments in Hayburn's Case.   For a discussion of Randolph's arguments, see Marcus & Teir, supra note 15, at 535-41; Cummings & McFarland, supra note 10, at 27-28.

108. San Jacinto, 125 U.S. at 278-88.

109. 513 U.S. 88 (1994).

110. See Reorg. Plan No. 4 of 1953, § 1, 3 C.F.R. 1026 (1949-1953), reprinted in 67 Stat. 636, codified as amended at 28 U.S.C. § 508 (1994).

111. See Act of June 16, 1933, § 16 48 Stat. 283, 307-08; Reorg. Plan No. 2 of 1950, §§ 3, 4, 3 C.F.R. 1002, 1003 (1949-1953), reprinted in 5 U.S.C. app. at 1468 (1994), and in 64 Stat. 1261, 1261; see also supra note 90 and accompanying text.   In his memoirs, former Solicitor General Erwin Griswold describes his surprise in discovering that, as a young attorney in the Solicitor General's Office in the early 1930s, he was called upon to draft opinions for the Attorney General on important subjects with little or no oversight by the Solicitor General, who was too busy with the press of Supreme Court litigation to review the drafts.

Because of the number and significance of these opinions of the Attorney General, and related matters, I became concerned.   It seemed to me that the work was both adequate in volume and of such importance that it should not be handled by a young lawyer in the Solicitor General's office.   In particular, I felt that these drafts of opinions, and other policy matters, should be the responsibility of an officer appointed by the President after confirmation by the Senate.   Since it was clear that the Solicitor General did not have time available to handle these matters himself, I recommended that a new office should be established, and that the new officer should have the title of Assistant Solicitor General, nominated by the President, and confirmed by the Senate.   Such a statute was enacted.

Erwin N. Griswold, Ould Fields, New Corne: The Personal Memoirs of a Twentieth Century Lawyer 101 (1992).

112. Reed in Collapse; AAA Cases Halted, N.Y. Times, Dec. 11, 1935, at 1, 9.   The article begins with the heading "Federal Pleader is Taken Ill in Midst of New Hail of Questions by Judges" and describes the incident as follows:

Bringing to a dramatic halt the second day of argument in the Supreme Court on the constitutionality of the Agricultural Adjustment Act and the Bankhead Cotton Control Law, Solicitor General Stanley Reed faltered this afternoon and sat down, physically unable to continue.

His collapse as he defended the Bankhead act was in the midst of a barrage of technical questions from the nine judges *   *   * .

Id. at 1.   The article explains that as Reed attempted to argue "that the case was a non-adversary one and that there was nothing in the record to show opposition between the plaintiff and the defendant or an effort to try out the issue[,] *   *   * [a] hail of questions followed from Justices Hughes, McReynolds, Butler, Van Devanter and Roberts, all asking Mr. Reed why he alleged the record to be non-adversary when both sides said that it was not and whether the contention was based on both sides stipulating certain allegations."   Id. at 9.   As Reed struggled with this "nest of questions," Chief Justice Hughes, broke in and "in one crisp sentence" declared that "[t]he court does not desire to hear you further on that point."   Ibid.

Then, as Reed began to make an additional point about the record and was again faced with a barrage of hostile questions from the Justices, he "immediately paled and said in a low voice: 'I must beg the court's indulgence, but I am too ill to proceed further.'"   Id.   Reed's face, we are told, "was ashen and he showed signs of utter exhaustion." Id. at 1.

Of course, the repeated prospect of defending New Deal legislation before the Hughes Court may have been enough to make any advocate feel faint.   But the magnitude of the Solicitor General's Supreme Court litigation during this period placed immense pressure on the office and no doubt left little or no room for the Solicitor General's nonlitigation-related duties.   As the New York Times put it, "Court officers and representatives of the Department of Justice explained that the Solicitor General was suffering from extreme weakness caused by the strain of the major cases he had prepared and argued."   Id.

113. Lehmann's poignant words have been inscribed on the wall of the Attorney General's rotunda in the United States Department of Justice building.   See Brady v. Maryland, 373 U.S. 83, 87 n.2 (1963) (quoting Solicitor General Simon Sobeloff, in turn paraphrasing Lehmann); James L. Cooper, The Solicitor General and the Evolution of Activism, 65 Ind. L.J. 675, 676 n.8 (1990); Caplan, supra note 1, at 17.

114. Francis Biddle, In Brief Authority 98 (1962).

 

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