Obituaries

Lawrence Wallace, Supreme Court advocate with a famous footnote, dies at 88

By Harrison Smith
Feb. 25, 2020 at 10:26 p.m. EST

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Mr. Wallace appeared at the Supreme Court with such frequency that his oral arguments were tallied up by reporters and historians, who tracked his rise through the record books as he passed two recent giants of Supreme Court advocacy, Erwin N. Griswold and John W. Davis. By the time he retired in 2003, he had argued 157 Supreme Court cases, more than any civil servant in U.S. history and more than any lawyer in the 20th century. ... His legal work addressed subjects ranging from radioactive waste and sexually explicit television programming to civil rights and patent law. But among his peers, he was best known for an episode that nearly derailed his career, when he resisted pressure from Justice Department officials in a politically charged case involving racial discrimination and the Internal Revenue Service.

“It really was a remarkable thing,” said Richard J. Lazarus, a Harvard Law professor who served as a former assistant to the solicitor general. “It was a career civil servant, based on what he viewed as the principle of which arguments had merit, which arguments had integrity, standing up to the attorney general and no less than the White House. … The job was his life. He risked being fired in a heartbeat.” ... Mr. Wallace’s actions took the seemingly undramatic form of a footnote, a short passage he wrote in a 1982 brief filed with the Supreme Court case Bob Jones University v. United States. The case centered on whether the IRS could revoke the tax-exempt status of discriminatory private schools such as Bob Jones University, an evangelical institution in South Carolina that prohibited interracial dating and marriage.

Under normal circumstances, such a high-profile case would have been handled by the solicitor general, Rex E. Lee. But when Lee recused himself, citing previous work on tax exemptions for religious schools, the case fell to his senior deputy, Mr. Wallace, who filed a brief arguing that the IRS could revoke the exemptions. ... President Ronald Reagan ultimately took the opposite position, siding with Bob Jones amid a broader break with established civil rights policies. When Mr. Wallace was asked to sign a Supreme Court brief in which the government effectively reversed itself, he included a footnote on the first page noting his disagreement with the administration’s position.

A New York Times report called Mr. Wallace’s footnote “one of the more extraordinary twists in a case that is without parallel in recent Supreme Court history.” While he declined to explain why he signed the brief even though he disagreed with its argument, colleagues said that it would have been extremely unusual for the Justice Department to file such a document without the signature of someone from the solicitor general’s office.

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Harrison Smith
Harrison Smith is a reporter on The Washington Post's obituaries desk. Since joining the obituaries section in 2015, he has profiled big-game hunters, fallen dictators and Olympic champions. He sometimes covers the living as well, and previously co-founded the South Side Weekly, a community newspaper in Chicago. Follow https://twitter.com/harrisondsmith