Roles of the Attorney General of the United States
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The government of the United States got along for more than 60 years without a full-time attorney general. In those days the government’s chief legal officer handled the job along with his private law practice. Madison’s attorney general threatened to resign because the President wanted him to stay in Washington while Congress was in session. Today, the occupant of the office presides over more than 30,000 employees and has a budget of well over one-half billion dollars.
Luther Huston traces the growth of the office of attorney general from a one-man, part-time job to the vast and complex office that it is today. He recounts some of the major issues dealt with by attorneys general and their roles in shaping national policies. Ten of them were elevated to the Supreme Court. Several others were nominated for the Court but were rejected by the Senate. Andrew Jackson’s first nomination of Roger Taney was rejected. Later, after the next election, Taney was nominated again and he succeeded Marshall as chief justice.
Over a century ago, Alexis de Tocqueville observed that scarcely any major political question arises in the United States that is not resolved, sooner or later, into a legal question. Accordingly, the role of the President’s legal adviser and counsel for the government has had great political impact. Professor Miller observes that the Nation’s chief law officer is drawn increasingly into the political arena, and he documents various situations in which the attorney general’s task “was not to say ‘no’ but to find a way to say ‘yes’.” Thus, he points up a basic problem: “how to keep the law and the legal process from becoming a tool of political leaders.”
While the state governments have primary responsibility for law enforcement, Professor Miller concludes that a national police force is in being or in the making: “. . . Congress has deemed it necessary to deal with crimes committed in interstate commerce and otherwise to reach down and assert federal responsibility over matters traditionally local in nature. The movement seems to be increasing. At some time, therefore, the FBI will be recognized as a national police force—in fact, if not in theory.”
The ancient legal term amicus curiae—“a friend of the court”—describes the attorney general’s role in many major cases. But its origin and evolution, and its involvement in the role of the attorney general has been largely ignored. The concept developed in England when modem legal research systems were unknown. A judge, doubtful about precedents governing a difficult case, would call on a disinterested attorney to advise him as “a friend of the court.”
Professor Krislov’s paper examines the expansion of the attorney general’s role as “a friend of the court” and the consequences of “the shift from neutrality to partisanship.” He points out that the attorney general’s role as amicus curiae has grown significantly during the 1960s. The author lists more than 100 Supreme Court cases since 1961 in which the Department of Justice appeared as “a friend of the court.” In many of them the department supported the position of civil rights demonstrators or the “one-man, one-vote” doctrine.
Professor Dixon reviews the role of the attorney general in the field of civil. Rights—“a ‘story’ not commonly known and still developing.” He describes the Department of Justice as “both a highly personal, sensitive, policy organ, and an amorphous collectivity.” Although it is an impersonal bureaucracy in many respects, Professor Dixon finds that the attorney general’s office “reflects the personality of its occupant and sometimes the personal touch of the President” especially where civil rights policy is involved.
This paper surveys the attorney general’s legislative roles as well as his roles in the courts in civil rights matters. In includes a discussion of the “rare example” of Attorney General Kennedy initiating a proceeding before the Interstate Commerce Commission to prohibit bus lines from using segregated facilities.
Professor Dixon points out that the attorney general’s role as “a friend of the court” has been “especially significant” in civil rights matters. He has been able to join in suits brought by private parties “and strengthen their cases through the addition of federal legal resources.”
Luther Huston has served as director of information for the Department of Justice and for many years he covered the department and the Supreme Court as a correspondent for The New York Times. Arthur Miller and Robert Dixon are professors of law at the National Law Center of The George Washington University. Samuel Krislov is professor of political science at the University of Minnesota.