When Justice Samuel Alito Jr. joined the Supreme Court in January 2006 as its junior justice, he kept Justice Stephen Breyer from breaking a high court record.
Breyer, who became a justice in 1994, fell 29 days short of having the longest tenure as junior justice in the Court's history. That distinction is still held by Justice Joseph Story, who was junior justice for 4,228 days -- more than 11 years -- in the early 1800s.
The latest issue of the Journal of Supreme Court History takes a definitive look at the role of junior justice, and it turns out there is more to it than meets the eye. Managing editor Clare Cushman wrote the article, which includes an extensive interview with Breyer about the position.
"I missed by 29 days becoming immortal as the answer to a trivia question!" Breyer exclaimed in the interview. "It's amusing, it's not serious ... couldn't matter less."
The best-known duty of the junior justice is to answer the door at the Court's private conferences, which are attended only by members of the Court. Breyer recounted his oft-told tale about answering the door once to find that he was being asked to deliver a cup of coffee to Justice Antonin Scalia.
The habit of answering the door was hard to break, Breyer said. "When there is a knock at the door I suddenly react and start to get up," Breyer said, even though it is now Alito's job. "I had been used to it like a Pavlovian dog."
Earlier junior justices had other sentrylike functions, Cushman writes. Back when the justices dined collegially at a D.C. boarding house, Chief Justice John Marshall gave Story the job of helping him enforce the rule that wine would be served only when the weather was wet. Occasionally, Marshall would tell him, "Brother Story, step to the window and see if it does not look like rain." If Marshall's thirst for wine was great, they would agree that it was raining somewhere in the Court's jurisdiction.
But the lesser-known and more important function of the junior justice, at least since the early 1970s, has been to "give orders" to the Court clerk and staff after the justices' private conferences. When four justices vote to grant review of a case, that decision must be recorded and communicated faithfully to the clerk so the lawyers and public can be informed. That task was traditionally in the hands of the chief justice, until Warren Burger, early in his tenure, began delegating it to the junior justice, who at the time was William Rehnquist.
"It goes very quickly," Breyer told Cushman. "I have to be particularly careful to get it exactly right."
Just as Justice Ruth Bader Ginsburg, the previous junior justice, briefed Breyer on how to do the job, so too has Breyer helped Alito. "He has picked this up very well," Breyer reports.
The junior justice also speaks last at conference when cases are discussed -- a mixed blessing, in Breyer's view. Junior justices go last in funeral processions and when entering the House chamber for the president's State of the Union address.
But Breyer knocked down the speculation that he has attended so many State of the Union addresses during his years on the Court because that too is a chore assigned to the junior justice. "People attend if they wish to attend. I do wish to attend, so I go."
Footnote: In case you are wondering why Roberts, who joined the Court four months before Alito, did not take the junior justice mantle from Breyer, it is because, by Court custom, the chief justice is instantly regarded as number one in seniority.
