Book Review : Cat’s Paw of Reagan’s Judicial Activism

The Tenth Justice: The Solicitor General and the Rule of Law by Lincoln Caplan (Alfred A. Knopf: $19.95, 325 pages)

Long before we witnessed the remarkable spectacle of Robert Bork’s confirmation hearings, the now-familiar jurist served in the obscure but powerful office of solicitor general--the President’s advocate in arguing cases before the Supreme Court. So influential is the solicitor general in the workings of the high court that he has come to be known as “The Tenth Justice.” In Lincoln Caplan’s fine study of the office of solicitor general and the men who have filled it--including, most prominently, those who have served during the Reagan presidency--we are privy to the Byzantine politics of practice before the Supreme Court, and the subtle but very real role of the solicitor general in shaping our laws.

Bork is mentioned only incidentally, but revealingly. He served as solicitor general during the Nixon Administration--and thereby found himself the only man in the leadership of the Department of Justice who was willing to follow Nixon’s orders and fire Archibald Cox (himself a former solicitor general) as Watergate special prosecutor. Bork confesses that his first class in antitrust law at the University of Chicago Law School “can only be called a religious conversion”--the first of many, as we now know. And we learn that Bork, with characteristic lack of aplomb, liked to refer to himself in the august role of solicitor general as “Der Meister Shyster.”

Caplan is considerably more impressed with the office of the solicitor general. Created in 1870 as “an officer learned in the law, to assist the attorney general in the performance of his duties,” the solicitor general soon acquired an aura of grandeur, and the Supreme Court came to rely on his independent judgment and dispassionate legal expertise. The alumni of the solicitor general’s office, as we see in “The Tenth Justice,” constitute an elite whose members are found on the federal bench, in the most powerful circles of private practice and in the halls of government.

Role Transformation

But Caplan despairs of the traditional role of the solicitor general at the hands of Ronald Reagan. “For many generations before the Reagan era, in both Democratic and Republican administrations, the solicitor general more often than not met the standards of a model public servant--discreet, able, trustworthy,” Caplan writes. “During the first six years of the present Administration, however, the role of solicitor general was transformed. . . . Far-reaching changes were pushed through by presidential counselor-turned-Atty. Gen. Edwin Meese and Asst. Atty. Gen. William Bradford Reynolds. . . ; they have been carried out by the present solicitor general, Charles Fried; and they are at the center of many of the deep, near-seismic reforms that the Reagan Administration has tried to bring about in American law.”

Indeed, “The Tenth Justice” is a carefully constructed indictment of the ideological excesses of the Reagan Administration and its heavy-handed manipulation of the solicitor general as a cat’s paw of its own judicial activism. Caplan demonstrates how Meese and especially Reynolds have put the solicitor general to work in attacking well-established Supreme Court precedents on civil rights, abortion, birth control and other issues, and thereby detracting from both the independence and the stature of the office. “It’s hardly the mark of a reasoned approach to the law,” one justice told Caplan. “It’s ideology.”

“The Tenth Justice” is enlivened by the author’s high-toned gossip about the Supreme Court and the attorneys who practice before it. For instance, we hear Justice Felix Frankfurter crack about one solicitor general whose ambition for a seat on the high court was obvious: “Every time he comes to see me,” Frankfurter said, “I feel as if he’s taking my temperature.” And we see how a marginal comment by Dwight D. Eisenhower on the draft of the solicitor general’s brief in the epochal desegregation case of Brown vs. Board of Education was inserted in the final draft by a fairly brazen young attorney on the solicitor general’s staff: “It was the first and only instance I know of,” the culprit told Caplan, “in which the President of the United States was co-author of a brief in the Supreme Court.”

Caplan’s book is mostly a brief on the malefactions of the Reagan Administration, and not always a temperate or exceptional book about law for both the lay reader and the lawyer. As an attorney, I am deeply impressed by Caplan’s rare ability to write lucidly and accessibly about the law without sacrificing the exquisite legal subtleties that often inform a Supreme Court ruling.