The Supreme Court: The Tenth Member

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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.