The Tenth Member

In a century-old ritual, Attorney General Katzenbach last week formally introduced the crack lawyer whose cases may well dominate the new term's crowded Supreme Court docket. He is zesty, earthy Thurgood Marshall, 57, once the country's most successful civil rights lawyer, later a federal judge and now the 33rd U.S. Solicitor General. Looking amused at his own anachronistic costume of striped pants, black vest and swallow-tailed coat, Marshall beamed as Chief Justice Warren intoned: "The court welcomes you."

It is no secret that Marshall's new job is considered a way station toward his becoming the Supreme Court's first Negro Justice. But even if he goes no farther, Marshall's position already makes him what is often called the Supreme Court's "tenth member." Since the Government is a party in more than half the court's cases, and the Solicitor General is the Government's chief appellate lawyer, the court sees, hears and heeds him more than any other man Although he is paid only $28,500 a year as the Justice Department's third high est official (behind the Attorney General and his deputy) and does not even rate a Government car, he is beyond question the nation's most influential advocate at the high-court bench.

Seeing Two Sides. Even before he gets to the courtroom, the Solicitor General has the power to pass on every appeal brought by the U.S. Government at every level of the nation's court system. With his tiny staff of ten elite lawyers, the Solicitor General sifts almost ) possible Government appeals a year in every imaginable field. His approval is not given lightly. Unlike other lawyers, who are primarily advocates for only one side of a conflict, the Solicitor General serves the Supreme Court as well as the Government. He is less interested in victory than in whether an appeal promotes "symmetry of law." If two U.S. courts of appeals issue conflicting decisions he almost automatically asks the Supreme Court to resolve the dilemma. He blocks most other appeals as not worthy of the court's scarce time and ample trouble.

A Solicitor General is often judged less by his Supreme Court victories than by his success in getting federal agencies to accept lower-court decisions. In 1964 Archibald Cox, Marshall's predecessor, who plans to resume teaching labor law at Harvard, held off 74% of the requests tor appeals from decisions against the Government in U.S. district courts Of 385 potential appeals to the Supreme Court, he approved only 43. Such selectivity pays off: the Supreme Court now accepts about 66% of the Government's petition compared with less than 10% of those of private lawyers.

Confessing Error. Even after a federal agency submits its appeal in a presumably watertight brief, the Solicitor General and one or two of his lawyers shorten, strengthen, and often totally rewrite it--a task that sometimes occupied Cox for 16 hours a day seven days a week. And even after the Solicitor General is satisfied with the printed word, he frets about the spoken the often decisive oral argument that starts when the Chief Justice benignly murmurs, "Mr. Solicitor General?" In his four years, Cox argued a record 67 cases, including eight crucial reapportionment cases; yet he never once faced the Justices' probing questions without having lain awake "the whole night be fore, feeling sick to my stomach and wondering if I were going to die."

Often enough, the Solicitor General deliberately asks for courtroom defeats by "confessing error." In that tactic, he bluntly requests the Supreme Court to rule that a lower court wrongly upheld the Government. The most skeptical Justices are prone to admit that Solicitors General live up to the Justice Department motto: "The U.S. wins its point when justice is done its citizens m the courts."

Rising Higher. Three Solicitors General have risen to the Supreme Court-William Howard Taft (with time out as President), the now retired Stanley F Reed and the late Robert H. Jackson (among the ablest of them all), who also served as Attorney General.

Whether or not Solicitor General Thurgood Marshall eventually becomes a Justice, he is no stranger to the Supreme Court, where he won 29 out of 32 cases as chief counsel of the N.A.A.C.P.'s Legal Defense and Educational Fund. His record also suggests that he can be counted on to continue the Government record of not losing an antitrust suit in ten years. He intends to try not to concentrate unduly on civil rights, but this month he will start right off by tackling a vital issue in that area--whether the Federal Government can prosecute Southern whites accused of racial murders.

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