Editing Archibald Cox (section)

==After Watergate==

===Teaching again===
Cox spent the academic year from September 1974 to spring 1975 at the University of Cambridge as the [[Pitt Professor of American History and Institutions]].{{efn|The professorship had been offered before Cox's appointment as Watergate prosecutor. Cox chose to deliver lectures at [[Sidney Sussex College, Cambridge|Sidney Sussex College]].{{sfn|Gormley|1997|pp=393–394}}}} During that year Cox and his wife were able to travel throughout Britain and Ireland meeting judges, lawyers and other dignitaries. Cox lectured to packed houses, including at Oxford where he delivered the [[Chichele Lectures]] at [[All Souls College, Oxford|All Souls College]]. The Coxes also occasionally socialized with the Richardsons, Elliot having been appointed by President [[Gerald Ford|Ford]] as the Ambassador to the [[Court of St James's]]. They were even able to spend a weekend in Scotland with David Graham-Campbell, the commander of the corps that Cox's brother Robert served in when he died during World War II.{{sfn|Gormley|1997|p=394}}

When Cox returned to Harvard in the fall of 1975 he returned to teaching and writing full-time. His interests were now almost exclusively constitutional law, but he occasionally would teach a course in labor law. Faculty members and students noticed a change in his style of teaching. Whereas once he was known as the austere, dominating law professor drilling students with the [[Socratic method]], and even was considered a possible basis for the fictional [[The Paper Chase (Osborn novel)|Professor Kingsfield]],<ref>{{cite news|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/hlrec60&size=2&collection=journals&set_as_cursor=1&id=38|last=Sisson|first=Frank E.|title=Paper Chase Finally Comes Home|work=Harvard Law Record|volume=60|number=3|date=February 14, 1975|page=6|access-date=May 1, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160605083932/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals%2Fhlrec60&size=2&collection=journals&set_as_cursor=1&id=38|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref> he was now referred to in student evaluations as "interesting, kind, decent." Derek Bok concluded: "He developed an affection for people."{{sfn|Gormley|1997|p=397}}

===Judicial reform===
Cox's outside activities shifted from arbitration to government reform and appellate advocacy. In 1975, court reform was a top priority in Massachusetts where criminal cases had backlogged the system, which (because they required priority) resulted in even greater congestion of civil cases. Cox was appointed to a Massachusetts Bar committee to study the problem.<ref>{{cite journal|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.barjournals/malr0060&size=2&collection=journals&set_as_cursor=303&id=338|last=Wadsworth|first=Charles Y.|title=President's Message: Judicial Reform!|journal=Massachusetts Law Quarterly|volume=60|number=4|date=December 1975|page=336|access-date=May 1, 2016|archive-url=https://web.archive.org/web/20160605083358/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.barjournals%2Fmalr0060&size=2&collection=journals&set_as_cursor=303&id=338|archive-date=June 5, 2016|url-status=live|df=mdy-all}} Subscription required.)</ref> in February 1976 Governor [[Michael Dukakis]] appointed Cox to head the 20 member Governor's Select Committee on Judicial Needs to make recommendations. In December the committee issued the Cox-drafted report, entitled "Report on the State of the Massachusetts Court."<ref>Cox himself summarized the report in {{cite journal|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.barjournals/malr0062&size=2&collection=journals&set_as_cursor=189#&id=23|last=Cox|first=Archibald|title=The Report of the Governor's Committee on Judicial Needs|journal=Massachusetts Law Quarterly|volume=62|number=1|date=March 1977|pages=23–28|access-date=April 2, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605123426/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.barjournals%2Fmalr0062&size=2&collection=journals&set_as_cursor=189#&id=23|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref> The Report's most important recommendations were a structuring of the District Courts, state assumption of the administrative costs of the courts, placing management of the court system in the hands of the chief justice of the Supreme Judicial Court, abolition of trials ''de novo'' in appeals from the District Court and tightening of the rules for remand and continuances.<ref>{{cite news|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/hlrec63&size=2&collection=journals&set_as_cursor=310&id=149|last=Jordan|first=Charles|title=Cox Judiciary Committee Nixes Trial De Novo, Reworks Budget|work=Harvard Law Record|volume=63|number=10|date=December 16, 1976|pages=1, 4|access-date=May 1, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160605082407/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals%2Fhlrec63&size=2&collection=journals&set_as_cursor=310&id=149|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref> Despite the fact that the Governor made judicial reform along the lines of the Cox report his "top" legislative priority for 1976, and despite the fact that the proposal was supported by the newspapers of the state, and despite intense lobbying efforts by Cox himself (not only in testimony before the legislatures but also in numerous speaking events throughout the state) over the course of 1976, the legislation ultimately ran out of time in the 1977 legislative session.{{efn|The recommendations faced an uphill battle through Massachusetts byzantine politics. The major problems were (i) the balkanized judicial system gave hundreds of independent enclaves of patronage, so the judiciary (including clerks and other officers) had no interest in reform; (ii) there existed a "terrible hatred" between the Governor and the chairman of the Senate Judiciary Committee (both of whom supported reform, and the chairmen and between the Senate and House Judiciary Committees (the later of which opposed reform); and (iii) the House kept inserting poison pills that would make the legislation unconstitutional (namely, making certain judges elected rather than appointed) and reusing to include a [[Severability|severability provision]].<ref>{{cite news|url=https://www.newspapers.com/clip/5141774/obstacles_to_judicial_reform_in/|last=Swaim|first=Loring|title=Court Reform Faces Uncertain Future in House|work=Lowell [Mass.] Sun|date=November 27, 1977|page=E1|access-date=May 2, 2016|via=newspapers.com|archive-url=https://web.archive.org/web/20160602084638/https://www.newspapers.com/clip/5141774/obstacles_to_judicial_reform_in/|archive-date=June 2, 2016|url-status=live|df=mdy-all}} The continuation is on [https://www.newspapers.com/clip/5141820/obstacles_to_judicial_reform_in/ page E2] {{Webarchive|url=https://web.archive.org/web/20160602084523/https://www.newspapers.com/clip/5141820/obstacles_to_judicial_reform_in/ |date=2016-06-02 }}.</ref> Late in the legislative season Cox tried to persuade the state's selectmen at an annual gathering that the bill would substantially ease their own budgets and benefit local governments especially,<ref>{{cite news|url=https://www.newspapers.com/image/55018160/?terms=archibald%2Bcox%2Bjudicial%2Breform|last=Bird|first=Joan|title=Cox Puts Case for Reform Before State's Selectmen's Assn.|work=Berkshire [Mass.] Eagle|date=October 29, 1977|page=11|access-date=May 2, 2016|via=newspapers.com|archive-url=https://web.archive.org/web/20160602084859/https://www.newspapers.com/image/55018160/?terms=archibald%2Bcox%2Bjudicial%2Breform|archive-date=June 2, 2016|url-status=live|df=mdy-all}}</ref> but the association ignored the plea in its legislative requests. Ultimately the bill failed in the Senate when the term ran out during a filibuster.<ref>{{cite news|url=http://www.thecrimson.com/article/1978/1/5/senate-stops-cox-panels-court-reform/|last=Flowers|first=J. Christopher|title=Senate Stops Cox Panel's Court Reform|work=Harvard Crimson|date=January 5, 1978|access-date=May 2, 2016|archive-url=https://web.archive.org/web/20160701185617/http://www.thecrimson.com/article/1978/1/5/senate-stops-cox-panels-court-reform/|archive-date=July 1, 2016|url-status=live|df=mdy-all}}</ref>}} In the next session the bill was drastically revised,<ref>{{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.barjournals/malr0063&start_page=101&collection=journals&set_as_cursor=0&men_tab=srchresults#&id=101|last=Hennessey|first=Edward F.|title=Annual Report of the Chief Justice of the Massachusetts Supreme Judicial Court: The State of the Judiciary|journal=Massachusetts Law Review|volume=63|number=3|date=June 1978|pages=101–107, 101–103|access-date=May 2, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605123424/http://heinonline.org/HOL/Page?handle=hein.barjournals%2Fmalr0063&start_page=101&collection=journals&set_as_cursor=0&men_tab=srchresults#&id=101|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref> but ultimately retained the state take-over of funding and implemented some centralization and coordination.<ref>{{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.barjournals/malr0064&start_page=3&collection=journals&set_as_cursor=1&men_tab=srchresults&id=7|last=Hennessey|first=Edward F.|title=Third Annual Report of the Chief Justice of the Massachusetts Supreme Judicial Court: The State of the Judiciary|journal=Massachusetts Law Review|volume=64|number=1|date=February 1979|pages=3, 8–9|access-date=May 2, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605123006/http://heinonline.org/HOL/Page?handle=hein.barjournals%2Fmalr0064&start_page=3&collection=journals&set_as_cursor=1&men_tab=srchresults&id=7|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref>

===Supreme Court advocate===
Just as his public support for Udall was uncharacteristic, after Watergate Cox was more open to represent groups not a part of traditional institutions.{{efn|For example, in early 1977 Cox agreed to help an advocacy group for native Americans who were pressing the claims of the [[Passamaquoddy]] and [[Penobscot]] against the state of Maine for land acquisition.<ref>{{cite news|url=https://www.newspapers.com/clip/5143301/cox_advises_passamquoddy_and_penobscot/|title=Cox Joins Legal Team for Indians|work=Portsmouth [N.H.] Herald|date=February 2, 1977|page=2|access-date=May 2, 2016|via=newspapers.com|archive-url=https://web.archive.org/web/20160602090421/https://www.newspapers.com/clip/5143301/cox_advises_passamquoddy_and_penobscot/|archive-date=June 2, 2016|url-status=live|df=mdy-all}}</ref> The claims were ultimately settled for $81.5 million through the adoption of the [[Joint Tribal Council of the Passamaquoddy Tribe v. Morton|Maine Indian Claims Settlement Act of 1980]].<ref>{{cite web|url=https://www.nlm.nih.gov/nativevoices/timeline/550.html|title=Maine Indians settle land claims against U.S.|publisher=National Institutes of Health, Health & Human Services|date=n.d.|access-date=May 2, 2016|archive-url=https://web.archive.org/web/20160604135448/https://www.nlm.nih.gov/nativevoices/timeline/550.html|archive-date=June 4, 2016|url-status=live|df=mdy-all}}</ref>}} But Cox's chief interest was always in Supreme Court advocacy. And he would argue two more landmark cases.

The first of the cases arose out of the 1974 amendments<ref>P.L. 93-443, {{usstat|88|1263}}</ref> of the [[Federal Election Campaign Act|Federal Election Campaign Act of 1971]]. These amendments were a response to the campaign finance abuses of Nixon's [[Committee for the Re-Election of the President]], which Cox was familiar with as Special Watergate Prosecutor.{{efn|The president's counsel, Herb Kalmbach, was able to raise large and illegal contribution from numerous corporations and commercial groups, and following the contributions the contributors received significant government benefits: The Milk Producers Association pledged $2 million at the same time the [[Presidency of Richard Nixon|Nixon Administration]] increased the support price of milk. American Airlines received approval for certain profitable routes right after an illegal contribution. ITT agreed to underwrite the Republican National Convention and an antitrust suit by the government was dropped after a direct order by the president to Richard Kleindienst.{{sfn|Cox|1982|p=397}}}} The amendments provided for financial reporting by federal campaigns, established a variety of contribution and spending limitations and provided for public funding of presidential campaigns. A variety of plaintiffs sued, claiming the regulatory scheme violated their right to free speech. In 1975 the case reached the Supreme Court, and Senators Edward Kennedy and Hugh Scott requested Cox to file an ''amicus'' brief on their behalf. [[Common Cause]] had intervened as a party in the lower court and therefore had time a right to argue before the Court, but its counsel [[Lloyd Cutler]] disagreed with the position taken by the organization (which supported the amendments) and Cox was asked to argue on its behalf.{{sfn|Gormley|1997|pp=e01 & 553 n. 34}}

Cox's key argument was that the contribution of money, even when done to enable public discourse is not "speech" but rather "conduct." Nor was total campaign spending, even though part of it was used to enable "speech." In light of the realities of escalating campaign contributions, Congress had a right to regulate this conduct to reduce corruption and to counter public cynicism in the electoral process. Cox argued that such conduct should be subject to a lesser standard of court review than the strict scrutiny of restrictions on pure political speech. The Court's decision in the case, known as ''[[Buckley v. Valeo]]'',<ref>{{ussc|424|1|1976}}</ref> was an eclectic array of separate opinions on various parts of the amendments, with only a brief ''per curiam'' decision tallying the votes on each issue.{{efn|The principal regulations were as follows: (i) prohibition on individuals against contributing more than $1,000 to any one candidate per election; (ii) prohibition on multi-candidate committees against contributing more than $5,000 to one candidate; (iii) prohibition on candidates against contributing above set ceilings from personal or family funds; (iv) prohibition on aggregate spending by a campaign above a set amount; (v) prohibition on individual against spending above $1,000 on behalf of a candidate regardless whether it was in coordination with the campaign; (vi) provision for federal financing of campaign under certain conditions, including that candidate agrees to spending limits; (vii) prohibition on "election committee" against spending more than $1,000 on any candidate who has elected public financing. The Court held that (i) the reporting requirements were constitutional; (ii) the restrictions on contributions were constitutional; (iii) restrictions on spending by the campaign or individuals (except those in coordination with a campaign that accepted the voluntary restrictions as a condition for public financing) were unconstitutional; and (iv) the provisions for public financing of presidential elections were constitutional.{{sfn|Cox|1982|pp=397–398}}}} The Court rejected Cox's approach. As Justice White put it in dissent, the Court held that 'money talks" without considering the variety of ways that federal laws regulate speech in other contexts.<ref>424 U.S. 257, 262–64 (White, J., dissenting).</ref> Nevertheless, while it voided limits on campaign spending, it upheld contribution limits, financial reporting requirements and the conditions to financing of presidential campaigns.<ref>For a discussion of the details of ''Buckley v. Valeo'', ''see'' {{harvnb|Cox|1982|pp=404–415}}; {{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/ylr103&start_page=469&collection=journals&set_as_cursor=8&men_tab=srchresults#&id=483|last=Levit|first=Kenneth J.|title=Campaign Finance Reform and the Return of Buckley v. Valeo|journal=Yale Law Journal|access-date=May 2, 2016|via=[[Heinonline]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605130212/http://heinonline.org/HOL/Page?handle=hein.journals%2Fylr103&start_page=469&collection=journals&set_as_cursor=8&men_tab=srchresults#&id=483|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref> [[John W. Gardner]], the chairman of Common Cause called it a victory for those who "worked so hard to clean up politics in this country."{{sfn|Gormley|1997|p=401}}

The second significant case Cox participated in dealt with affirmative action. In 1976 the [[California Supreme Court]] had ruled that the [[University of California, Davis]] Medical School had violated the [[Equal Protection Clause]] of the [[Fourteenth Amendment to the United States Constitution]] by failing to admit [[Allan Bakke]], a 37-year-old white engineering student, who claimed that he was barred by a "racial quota." The trustees sought out Cox to argue the case in the Supreme Court. Cox, who had already prepared a brief on the issue in the ''DeFunis'' case, agreed to take the case on the condition that other lawyers take primary responsibility for preparing the brief, something highly unusual for Cox who normally carefully supervised and revised anything that went to the Court under his name, but necessary because of the work involved on the Massachusetts court reform committee.{{sfn|Gormley|1997|pp=401–402}} When the case came on to be argued, on October 12, 1977, Cox was in the midst of his heaviest schedule yet of lobbying for the reform bill, with the legislative session over after the holidays. The crux of his argument was to separate two questions facing universities who had fewer places available than qualified candidates: 1) Which candidates are capable of benefiting from the education provided by the school? and 2) From that group, what characteristics can the school employ to make sure a class benefits itself, the school and the community? It is the confusion of the two questions that gives rise to the claim that a "quota" exists.<ref>{{cite journal|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/natblj3&size=2&collection=journals&set_as_cursor=15#&id=251|last=Simmons|first=Vikki|title=Friends of the Court|journal=Black Law Journal|volume=3|number=3|pages=245–248, 246|access-date=May 2, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605135901/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals%2Fnatblj3&size=2&collection=journals&set_as_cursor=15#&id=251|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref>

Cox opened his ''Bakke'' argument by stating these questions in a way that put the case at its most forceful; namely, that unless the Court permitted universities to take race into account to promote minority participation in learned professions, they would be excluded except for a very small number.{{efn|Cox opened by stating the case as follows:{{Blockquote|text="This case … presents a single, vital question: whether a state university, which is forced by limited resources to select a relatively small number of students from a much larger number of well-qualified applicants, is free, voluntarily, to take into account the fact that a qualified applicant is black, Chicano, Asian, or native American, in order to increase the number of qualified members of those minority groups trained for the educated professions and participating in them, professions from which minorities were long excluded because of generations of pervasive racial discrimination."{{sfn|Ogeltree|2004|p=16}}}}}} The case, known as ''[[Regents of the University of California v. Bakke]]''<ref>{{ussc|438|265|1978}}</ref> produced several opinions: four justices opined that taking race into account was never permissible; four, on the other hand, that it was permissible if "benign." Justice [[Lewis F. Powell Jr.|Lewis Powell]], whose plurality opinion was joined by the different groups in different parts, tried to thread the needle. While he rejected a fixed number of acceptances (a so-called "quota"), and thus affirmed Bakke's admission in this case, he also answered Cox's framing of the question in the affirmative and said that universities are entitled to take race into account as one factor among many.<ref>438 U.S. at 315–20.</ref> Assistant Attorney General [[Drew S. Days, III]], who watched the argument felt that Cox's presence was crucial as a symbol of the "establishment" assuring the Court (and the conservative Justice Powell) that the position was not "outlandish."<ref name="Gormley 1997 405">{{harvnb|Gormley|1997|p=405}}</ref> Powell's approach opinion underlies the approach of most university affirmative actions policies today.{{efn|There was much debate whether Powell's opinion on race as a permissible "plus factor," represented a holding of the Court inasmuch as it was not joined in by other justices. That doubt was removed by ''[[Grutter v. Bollinger]]'', 539 U.S. 306 (2003), where Justice [[Sandra Day O'Connor]] re-affirmed Justice Powell's reasoning in an opinion for the Court. Cox's friend and colleague Charles Ogeltree attributes the survival of affirmative action programs in universities to Cox's forceful argument in ''Bakke''.{{sfn|Ogeltree|2004|pp=17–18}}}}

===Judicial politics===
In late 1978 a new seat became available in the United States Court of Appeals for the First Circuit (the federal appellate court sitting in Boston) when Congress expanded the federal judiciary by 152 judges. Observers expected Senator Kennedy to avail himself of the tradition allowing the Senator of the president's political party to name federal judges in his state to propose Archibald Cox.<ref>{{cite news|url=https://www.nytimes.com/1978/11/28/archives/kennedy-proposes-a-black-man-and-a-jewish-woman-as-judges-two.html|last=Knight|first=Michael|title=Kennedy Proposes a Black Man and a Jewish Woman as Judges|work=New York Times|date=November 28, 1978|page=A16|access-date=May 3, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201140048/http://www.nytimes.com/1978/11/28/archives/kennedy-proposes-a-black-man-and-a-jewish-woman-as-judges-two.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> In March 1979 a panel of lawyers appointed by President Carter unanimously recommended Cox as their first choice among five for the nomination.<ref>{{harvnb|Gormley|1997|pp=407–408}}. ''See also'' {{cite news|url=https://www.nytimes.com/1979/03/04/archives/cox-is-candidate-far-judgeship-on-the-federal-court-of-appeals.html|title=Cox is Candidate for Judgeship on the Federal Court of Appeals|work=New York Times|date=March 4, 1979|page=29|access-date=May 3, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201140206/http://www.nytimes.com/1979/03/04/archives/cox-is-candidate-far-judgeship-on-the-federal-court-of-appeals.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> Cox was highly doubtful, however, that Carter would appoint him in light of his prominent support of Udall three years earlier, but nevertheless filled out the application and submitted to background checks.{{sfn|Gormley|1997|p=408}} Then in June the ''New York Times'' reported that the nomination was "stalled." Some anonymous sources claimed that Attorney General [[Griffin Bell]] objected to the nomination on the ground that Cox at 67 was too old, noting that the ABA suggested that no one over 64 be named to the job. Another suggested that behind this rationale was antagonisms between Bell and Cox dating back to when Cox was Solicitor General and Bell was an appellate court judge in the south. Another source said that the Justice Department was holding up the appointment because Kennedy was attempting to assert undue influence as Chairman of the Senate Judiciary Committee, who had the ability to block appointments across the country. Publicly, however, all the parties insisted that the delay was nothing out of the ordinary.<ref>{{cite news|url=https://www.nytimes.com/1979/06/03/archives/coxs-nomination-to-bench-stalled-by-3way-battle-viewed-as-major.html|title=Cox's Nomination to Bench Stalled by 3-Way Battle|work=New York Times|date=June 3, 1978|page=26|access-date=May 3, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201132844/http://www.nytimes.com/1979/06/03/archives/coxs-nomination-to-bench-stalled-by-3way-battle-viewed-as-major.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref>

Within the White House Cox had his defenders who argued strongly against the "rule of 64" and even obtained an opinion that the ABA would not object to Cox's appointment. Kennedy even spoke personally to Carter, urging that the appointment would redound to the president's political benefit, but Carter told him he would not appoint Cox. When the decision was made members of Carter's own judicial selection publicly expressed their anger over the decision.{{efn|One member said that "[i]t bothers me ... because he ... disregarded what the commission was trying to do—select the positively best person." Common Cause's counsel termed the behavior "awfully petty." The ''National Journal'' concluded the affair demonstrated that when Carter and his aides "bungle something, they don't do it half way." It showed lack of statesmanship and competence at a time when Carter's hold on the nomination, let alone re-election, was slipping.<ref>{{cite journal|last=Cohen|first=Richard E.|title=Another White House Folly|journal=National Journal|volume=11|number=6|date=September 8, 1979|page=1492}}</ref>}} Carter's 1976 New York campaign manager listed the failure to appoint Cox as one of several ways in which the Administration had "behaved foolishly" simply to snub Kennedy.<ref>{{cite news|url=https://www.nytimes.com/1979/09/13/archives/move-grows-at-capitol-to-urge-carter-to-shun-race-talk-of-visit-to.html|last=Clymer|first=Adam|title=Move Grows at Capitol to Urge Carter to Shun Race|work=New York Times|date=September 13, 1979|page=B18|access-date=May 4, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20171201140521/http://www.nytimes.com/1979/09/13/archives/move-grows-at-capitol-to-urge-carter-to-shun-race-talk-of-visit-to.html|archive-date=December 1, 2017|url-status=live|df=mdy-all}}</ref> The following year another panel assembled by Carter asked Cox if he wished again to apply for a judgeship. Cox quickly turned down offer of interest. His colleague [[Stephen Breyer]] obtained the appointment.{{sfn|Gormley|1997|p=411}}

===Common Cause===
His judicial ambitions over, Cox turned his energies to leading outside advocacy and policy-making groups. In 1980 Cox was elected chairman of [[Common Cause]], the 230,000 member citizens' lobby, as John Gardner's successor. Cox wrote that "[t]he challenge was to reshape the machinery of self-government … so that every citizen knows that he or she can participate and that his or her participation counts ... ."<ref>{{cite web|url=https://www.nytimes.com/1980/02/03/archives/archibald-cox-is-elected-to-head-common-cause.html|title=Archibald Cox is Elected to Head Common Cause|work=New York Times|date=February 3, 1980|page=15|access-date=March 11, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180725214453/https://www.nytimes.com/1980/02/03/archives/archibald-cox-is-elected-to-head-common-cause.html|archive-date=July 25, 2018|url-status=live|df=mdy-all}}</ref> That same year he also became the founding chairman of the [[Health Effects Institute]], a partnership between the [[Environmental Protection Agency]] and private automobile and truck manufacturers to study the effects of emissions from motor vehicles. Cox said that the organization was designed to take the testing and scientific research concerning the health effects of this type of pollution "out of the adversarial context."<ref>{{cite web|url=https://www.nytimes.com/1980/12/13/archives/health-institute-to-study-motor-vehicle-emissions-concern-over.html|last=Shabecoff|first=Philip|title=Health Institute to Study Motor Vehicle Emissions|work=New York Times|date=December 13, 1980|page=8|access-date=March 11, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180315153903/https://www.nytimes.com/1980/12/13/archives/health-institute-to-study-motor-vehicle-emissions-concern-over.html|archive-date=March 15, 2018|url-status=live|df=mdy-all}}</ref>

It was as head of Common Cause, however, that he was to make his final mark; his goal was to make government more transparent and responsible to the broad public rather than special interests in order to restore faith in government institutions. The very day he took office, the [[Abscam]] affair was leaked. While Cox personally deplored the leak, he immediately sent letters to congressional leaders underlining "the urgent necessity of looking into the charges to demonstrate that Congress is concerned about its honor and integrity."<ref name=CSMSatNight/> In July 1980 the organization instituted its first major litigation under Cox, and it was a follow-up on ''Buckley v. Valeo'': Common Cause sued the four "independent" groups that promised to spend between $38 and $58 million for television and print advertisements in support of the election of [[Ronald Reagan]], even though he agreed to abide by spending limits of $29.4 million as part of the agreement he made in accepting public financing.<ref>{{cite news|url=https://query.nytimes.com/gst/abstract.html?res=9806EEDB1139F931A35754C0A966948260|last=Weaver|first=Warren Jr. |title=Group Supporting Reagan is Sued|work=New York Times|date=July 2, 1980|page=A17|access-date=May 4, 2016}}</ref> [[Right-to-work law|Right to work groups]] used the occasion to criticize Cox for attacking voluntary independent expenditures while ignoring union efforts on behalf of candidates.<ref>{{cite news|url=https://www.nytimes.com/1980/07/29/archives/on-straining-out-the-flies-and-swallowing-the-camel.html|last=Larson|first=Reed|title=On Straining Out the Flies and Swallowing the Camel|work=New York Times|date=July 29, 1980|page=A15|access-date=May 4, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180725215311/https://www.nytimes.com/1980/07/29/archives/on-straining-out-the-flies-and-swallowing-the-camel.html|archive-date=July 25, 2018|url-status=live|df=mdy-all}}</ref>  The D.C. District Court dismissed the case on the ground that any restrictions on "independent" spending amounted to an unconstitutional abridgment of freedom of speech. The Supreme Court, affirmed the decision by an equally divided court (Justice O'Connor not participating).<ref>''Common Cause v. Schmitt'', 455 U.S. 129 (1982). ''See'' {{cite news|url=https://www.nytimes.com/1982/01/24/weekinreview/major-news-in-summ-ary-free-speech-for-big-bucks.html|title=Major News in Summary; Free Speech For Big Bucks|work=New York Times|date=January 24, 1982|page=A1|access-date=May 4, 2016|archive-url=https://web.archive.org/web/20160603122239/http://www.nytimes.com/1982/01/24/weekinreview/major-news-in-summ-ary-free-speech-for-big-bucks.html|archive-date=June 3, 2016|url-status=live|df=mdy-all}}</ref> That case would be Cox's last argument before the Supreme Court.{{efn|Gormley determined that Cox argued 86 cases before the Court in his career, winning 61, losing 18 with 7 split decisions,{{sfn|Gormley|1997|p=557 n. 118}}}}

Conservatives' complaints against Common Cause became more general and more numerous from that summer to fall when the organization celebrated its tenth anniversary. [[Henry Fairlie]] published in the June issue of ''Harper's'' a broad (but largely unspecific) complaint against the organization for representing all that was wrong with American politics: "The underlying thrust of Common Cause reforms has been to weaken the political role of the very associations that give power to the otherwise powerless, and in the name of this misguided notion of participatory democracy Common Cause increases the opportunities of the already influential to extend their privileges."<ref>{{cite magazine|url=http://harpers.org/archive/1980/06/constitutional-complaints/|last=Fairley|first=Henry|title=Constitutional Complaints; What Ails America|magazine=Harper's|volume=240|number=1561|date=June 1980|pages=27–30, 32–34, 36, 29|access-date=May 4, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160531151125/http://harpers.org/archive/1980/06/constitutional-complaints/|archive-date=May 31, 2016|url-status=live|df=mdy-all}}</ref> Tom Bethell (Washington editor of Harper's) wrote in the ''Times'' " The concept of 'reform' itself is beginning to be viewed with skepticism. Writers are more and more inclined to put the word inside quotation marks. In Washington these days, one often hears references to 'the unintended consequences of reform.<ref>{{cite news|url=https://www.nytimes.com/1980/08/24/archives/taking-hard-look-at-common-cause.html|last=Bethell|first=Tom|title=Taking a Hard Look at Common Cause|work=New York Times|date=August 24, 1980|page=A34|access-date=May 4, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20180726005755/https://www.nytimes.com/1980/08/24/archives/taking-hard-look-at-common-cause.html|archive-date=July 26, 2018|url-status=live|df=mdy-all}}</ref> Cox responded in an address on September 6, 1980: It was not reforms that were the problem, but rather incomplete implementation of them. The flood of money into national political campaigns was not the result of campaign finance reform, but of inadequate regulation of "independent" committees that informally coordinated with the campaigns. "[D]amaging and dangerous as the rising rate of influence of political action committee contributions is … the present law is clearly preferable to the old pre-Watergate conditions."<ref>{{cite news|url=https://www.nytimes.com/1980/09/07/archives/common-cause-marks-birthday-with-new-resolve-misguided-notion-of.html|last=Herbers|first=John|title=Common Cause Marks Birthday with New Resolve|work=New York Times|date=September 7, 1980|page=36|url-access=subscription|access-date=July 25, 2018|archive-url=https://web.archive.org/web/20180725215406/https://www.nytimes.com/1980/09/07/archives/common-cause-marks-birthday-with-new-resolve-misguided-notion-of.html|archive-date=July 25, 2018|url-status=live|df=mdy-all}}</ref>

Cox continued his campaign against large campaign contributions,<ref>{{cite web |url=http://greenbag.org/v1n3/v1n3_dialogue_cox_gossett.pdf/ |title=The Case for Campaign Finance Reform |author=Archibald Cox |website=[[The Green Bag (1997)|The Green Bag]] |language=en-US |access-date=2018-06-29 |archive-url=https://web.archive.org/web/20161023213040/http://www.greenbag.org/v1n3/v1n3_dialogue_cox_gossett.pdf |archive-date=2016-10-23 |url-status=dead }}</ref><ref>{{cite news|last=Merry|first=George B.|title=PAC Foes Seek to Cap Dollars for Candidates|work=Christian Science Monitor|date=July 15, 1983|df=mdy-all|id = {{ProQuest|1037925060}}}}</ref> but he was largely unsuccessful in effecting any further change. He also supported efforts to increase voter participation by testifying in favor of bilingual ballots<ref>{{cite news|url=https://www.nytimes.com/1981/05/22/us/hispanic-vote-gains-as-debate-on-rights-act-swirls.html|last=Crewdson|first=John M.|title=Hispanic Vote Gains as Debate on Rights Swirls|work=New York Times|date=May 22, 1981|page=A15|access-date=May 4, 2016|archive-url=https://web.archive.org/web/20160604085853/http://www.nytimes.com/1981/05/22/us/hispanic-vote-gains-as-debate-on-rights-act-swirls.html|archive-date=June 4, 2016|url-status=live|df=mdy-all}}</ref>

After twelve years at the helm, Cox, at 79, chose to retire from the chairmanship of Common Cause as of February 1992.<ref>{{cite news|url=https://www.nytimes.com/1991/05/15/style/chronicle-078091.html|last=Anderson|first=Susan Heller|title=Chronicle|work=New York Times|date=May 15, 1991|page=B4|access-date=May 10, 2016|url-access=subscription|archive-url=https://web.archive.org/web/20160604080843/http://www.nytimes.com/1991/05/15/style/chronicle-078091.html|archive-date=June 4, 2016|url-status=live|df=mdy-all}}</ref>

===Retirement===
Having taught for two years beyond Harvard's mandatory retirement age, Cox was finally forced to retire from the Harvard Law School faculty at the end of the 1983–84 school year. Cox wryly said: "I won't be allowed to teach anymore. I'm presumed to be senile." He then accepted a teaching position at [[Boston University School of Law]],<ref>{{cite web|url=https://www.nytimes.com/1984/04/19/us/the-nation-archibald-cox-to-leave-harvard-law-faculty.html|author=UPI wire service|title=Archibald Cox to Leave Harvard Law Faculty|work=New York Times|date=April 19, 1984|page=A16|access-date=March 12, 2016|archive-url=https://web.archive.org/web/20160314105133/http://www.nytimes.com/1984/04/19/us/the-nation-archibald-cox-to-leave-harvard-law-faculty.html|archive-date=March 14, 2016|url-status=live|df=mdy-all}}</ref> which arranged a specific retirement policy for Cox; according to Dean Ronald A. Cass: "He teaches as long as he wants to."{{sfn|Gormley|1997|p=556 n.105}}