Archibald Cox

Archibald Cox
Archibald Cox 04989v.jpg
Special Prosecutor for the United States Department of Justice
In office
May 18, 1973 – October 20, 1973[1]
Appointed byElliot Richardson
DeputyHenry Ruth Jr.
Preceded byNewbold Morris (1953)
Succeeded byLeon Jaworski
31st Solicitor General of the United States
In office
January 1961 – July 1965
PresidentJohn F. Kennedy
Lyndon B. Johnson
Preceded byJ. Lee Rankin
Succeeded byThurgood Marshall
Personal details
Born(1912-05-17)May 17, 1912
Plainfield, New Jersey, U.S.
DiedMay 29, 2004(2004-05-29) (aged 92)
Brooksville, Maine, U.S.
Political partyDemocratic
Phyllis Ames (m. 1937)
EducationHarvard University (BA, LLB)

Archibald Cox Jr. (May 17, 1912 – May 29, 2004) was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy and as a special prosecutor during the Watergate scandal. During his career, he was a pioneering expert on labor law and was also an authority on constitutional law. The Journal of Legal Studies has identified Cox as one of the most cited legal scholars of the 20th century.[2]

Cox was Senator John F. Kennedy's labor advisor and in 1961, President Kennedy appointed him solicitor general, an office he held for four and a half years. Cox became famous when, under mounting pressure and charges of corruption against persons closely associated with Richard Nixon, Attorney General nominee Elliot Richardson appointed him as Special Prosecutor to oversee the federal criminal investigation into the Watergate burglary and other related crimes that became popularly known as the Watergate scandal. He had a dramatic confrontation with Nixon when he subpoenaed the tapes the president had secretly recorded of his Oval Office conversations. When Cox refused a direct order from the White House to seek no further tapes or presidential materials, Nixon fired him in an incident that became known as the Saturday Night Massacre. Cox's firing produced a public relations disaster for Nixon and set in motion impeachment proceedings which ended with Nixon stepping down from the presidency.

Cox returned to teaching, lecturing, and writing for the rest of his life, giving his opinions on the role of the Supreme Court in the development of the law and the role of the lawyer in society. Although he was recommended to President Jimmy Carter for a seat on the First Circuit Court of Appeals, Cox's nomination fell victim to the dispute between the president and Senator Ted Kennedy. He was appointed to head several public-service, watchdog and good-government organizations, including serving for 12 years as head of Common Cause. Cox was elected to the Common Cause National Governing Board in 1976 and 1997. In addition, he argued two important Supreme Court cases, winning both: one concerning the constitutionality of federal campaign finance restrictions (Buckley v. Valeo) and the other the leading early case testing affirmative action (Regents of the University of California v. Bakke).

Early life, education and private practice

Family and ancestors

Cox was born in Plainfield, New Jersey, the son of Archibald and Frances "Fanny" Bruen Perkins Cox, the eldest of seven children.[a] His father Archibald Sr. (Harvard College, 1896; Harvard Law School, 1899[4]) was the son of a Manhattan lawyer, Rowland Cox, and rose to prominence as a patent and trademark lawyer, and who wrote Cox's Manual on Trade Marks.[b] When Rowland Cox died suddenly in 1900, Archibald Sr. inherited his father's solo practice almost right out of law school. He built on that start to become successful in his own right.[5] His most prominent achievement was securing the red cross as the trademark of Johnson & Johnson.[6] Compared to the lawyers on his mother's side, his father (as Archibald Jr. reflected late in his life) did not participate much in public service, although he had "done a few things for Woodrow Wilson … at the time of the peace conference" and was president of the local Board of Education.[7] He also served as a member of the New Jersey Rapid Transit Commission.[4]


The library at St. Paul's School in New Hampshire

Cox attended the private Wardlaw School in Edison, New Jersey until he was fourteen.[8] Afterwards, he studied at St. Paul's School in New Hampshire, attending due to his father's intervention on his behalf despite low grades.[9]

Cox thrived at St. Paul and in his final year he won Hugh Camp Memorial Cup for public speaking and led the school's debate team to defeat Groton.[10] It was during this period that he read Beveridge's Life of John Marshall, which was an important early ingredient in Cox's progressive view of the law.[11] With a warm recommendation from the head-master (and family connections), Cox was able to enter Harvard College in 1930.


At Harvard, Cox joined a final club, the Delphic Club, called the "Gashouse" for its parties, gambling and liquor (during Prohibition).[12] He majored in History, Government and Economics and did slightly better than "gentlemanly Cs."[13]

It was during the second semester of his freshman year that his father died, at age 56.[4] For Cox's senior thesis he proposed analyzing the constitutional differences of the composition between the Senate and House through early American history. His advisor, Paul Buck, told him he did not "have brains enough" for the project. Cox took up the challenge and completed Senatorial Saucer.[c] As a result of the work Cox was able to graduate with honors in History.[15] Cox continued on to Harvard Law School in 1934.

Law school

Cox thrived at law school, ranking first in his class of 593 at the end of his first year.[16] Cox's second year was taken up with work on the Harvard Law Review. He also met his future wife Phyllis Ames. Cox proposed to her after only three or four meetings. She initially put him off, but by March 1936 they were engaged.[17] Phyllis, who graduated Smith the year before, was the granddaughter of James Barr Ames, one time dean of Harvard Law School and noted for popularizing the casebook method of legal study.[18] Professor (and later United States Associate Justice) Felix Frankfurter wrote them a congratulatory note on their betrothal, which exclaimed: "My God, what a powerful legal combination!"[19] Cox graduated in 1937 magna cum laude, one of nine receiving the highest honor awarded by the law school that year.[20] Two weeks before his commencement, Cox and Phyllis married.[21] Moving to New York City after law school, Cox served as a clerk with United States District Court Judge Learned Hand.[9]

Private practice and wartime service

After a year in New York City, Cox accepted an associate position with the Boston law firm of Ropes, Gray, Best, Coolidge and Rugg. After World War II began, Cox took a position in the United States Solicitor General's office. By 1943, Cox had advanced to become Assistant Solicitor of the Labor Department.

Solicitor in the Labor Department

As associate solicitor Cox's job in the Labor Department was to supervise enforcement at the District Court level of federal labor statutes. Cox had a staff of eight lawyers in Washington and supervised the Department's regional offices, including deciding when a regional attorney could bring suit. Most of the litigation involved wage and hours issues under the Fair Labor Standards Act. His background in the solicitor general's office also allowed him to handle much of the appellate work.[22] By virtue of his position Cox also occasionally sat as an alternative public member of the Wage Adjustment Board, which was a specialized subsidiary of the National War Labor Board, which dealt with the construction industry and attempted to maintain labor peace by mediating non-wage disputes and setting prevailing wage rates and increases under the Davis–Bacon Act.[23]

Harvard faculty and labor arbitrator

After WWII was over, Cox returned to the law firm Ropes, Gray with the intention of spending his professional career there. Instead, he lasted five weeks.[9] Dean Landis of the Harvard Law School offered to hire Cox as a probationary teacher in the fall of 1945. Cox accepted, despite the substantial cut in salary he would take, but on the condition that he would not have to teach corporations or property. Landis agreed; his expectation was that Cox should become a nationally recognized expert in labor law.[24] In addition to labor law, Cox started out teaching torts. Later he would also teach unfair competition, agency and administrative law.[25] He was made a permanent professor during the 1946–47 academic year, a time when the law school greatly increased enrollment in the post-war boom.[26]

As a legal scholar and professor at Harvard throughout the 1950s, Cox became immensely influential in the labor field. His writing was so prolific that Dean Griswold pointed to Cox when he needed an example of the kind of academic output he was seeking from the faculty.[27] Given that the peak of his academic career also coincided with the enactment of the statutes that defined industrial relations, his work, usually the first on any new topic, shaped the Supreme Court's thinking. His one-time student and later colleague Derek Bok described this influence:

In the 1950s, the National Labor Relations Act was still relatively new, and the Taft-Hartley Act was in its infancy. Over the decade, the Supreme Court had a series of opportunities to clarify the meaning of good faith bargaining, the scope of mandatory arbitration, the legal status of arbitration, and other important issues of policy left open by Congress. In case after case, when the majority reached the critical point of decision, the justices would rely on one of Archie's articles.[28]

In addition to his direct effect on Supreme Court decisions,[29] Cox's scholarly writing influenced other academics and practitioners who widely cited him. The Journal of Legal Studies lists Cox as one of the most-cited legal scholars of the twentieth century.[30] The framework he developed, first in the two articles with Dunlop in 1950-51, then elaborated on his own, became the standard view of the Wagner and Taft-Hartley Acts. It assumed roughly equal bargaining power between union and management and interpreted the labor laws (often contrary to the language of the statutes themselves) to limit individual employee rights unless pursued by his bargaining agent, to restrict the subjects on which management is required to bargain based on past practices, to permit unions to waive rights the statutes otherwise gave to employees and in general to advocate the notion that labor statutes should be interpreted to promote industrial peace over enhancing the economic power of labor.[31] The framework remained the dominant view of federal labor relations until the late 1950s when concerns over member participation began to shape policy.[32] It would be Cox and his work with Senator John F. Kennedy on the bill that became the Landrum–Griffin Act that would initiate the new framework.