Larry Wallace of SG's Office and Footnote Fame Dies (2/24/20)

Lawrence G. ("Larry") Wallace, a formidable presence in the Solicitor General’s office for many years, died today.  See Tony Mauro, Larry Wallace, Former Deputy Solicitor General and Courageous Civil Servant, Dies at 88 (Law.com 2/23/20), here.  Although Larry was not a DOJ Tax guy, one of his principal claims to fame, recounted in the article, was his famous footnote in a brief in a tax case involving denying tax exempt status to racially discriminatory schools (Bob Jones University and Goldsboro Christian Schools). The Government won both of those cases at the Fourth Circuit, but when the schools petitioned for certiorari, the Reagan administration decided to pay back the South for its support by attempting to throw the case in the Supreme Court.  Wallace was in the SG’s office at the time.  They needed someone to sign the brief, he agreed provided that he could put in a footnote that he did not agree with the position of the Reagan administration. Here is the Law.com description of that footnote:

In 1982, he included a memorable footnote in a brief signaling that he would not support the Reagan administration’s position in Bob Jones University v. United States. At issue was the Internal Revenue Service policy that denied tax-exempt status to institutions that discriminated by race. The Reagan White House wanted to oppose that policy in the government’s brief. 

When Solicitor General Rex Lee recused, the task of signing the brief fell to Wallace. Wallace did so, but insisted on adding the footnote, which angered Reagan administration officials. The Supreme Court ultimately upheld the policy. 

The late Erwin Griswold, who served as the U.S. solicitor general from 1967 to 1973, told The Washington Post in 1982 that Wallace’s action was “an attempt to preserve the credibility of the office.” 

Wallace remained in the office, but he was relieved of handling civil rights cases for the government, and a new position of a politically appointed deputy solicitor general was created. 

Harvard Law School professor Richard Lazarus on Saturday called Wallace’s legendary footnote “an act of extraordinary personal courage and professional integrity.” Lazarus continued: “The more recent action of the career Justice Department attorneys in resigning from the Stone prosecution to make clear their disagreement with orders from the Attorney General to withdraw their sentencing recommendation is strikingly reminiscent of Wallace’s action.”

An aside, I handled both cases in the trial level.  I handle Goldsboro Christian Schools to decision.  The Government won, with a decision by a S.C. judge, Judge Hemphill, after the N.C. judges recused themselves.  I handled the Bob Jones case until I left DOJ Tax, when Martin Whitaker took over.  Bob Jones won that case.  Both went to the Fourth Circuit which held for the Government.  Then the case went to the Supreme Court with the drama recounted above about the footnote.  There was even more drama when the Supreme Court, realizing that an amicus to argue for the Fourth Circuit holdings.  That amicus was William Coleman respected lawyer and head of the Washington office of O’Melveny & Myers.  Coleman won and, as a result, the Government won despite the attempt by Reagan and his minions to torpedo it.