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Scott Harris’s next job is out of sight-literally and figuratively. Harris, an assistant U.S. attorney in Washington, D.C., was expected to take over in June as counsel to the U.S. Supreme Court-one of the least visible but arguably most interesting and varied in-house counsel jobs in Washington. The position is part general counsel, part law clerk, and part motions attorney for the nation’s highest court, bringing its occupant into at least occasional contact with the justices themselves. The counsel offers advice to the justices, when requested, about judicial ethics dilemmas. He or she also works with U.S. attorneys when demonstrators are arrested on the steps of the Supreme Court, defends the justices when they’re named in what are viewed as crackpot lawsuits, and plays an occasional role in handling death row appeals. The normally secretive Supreme Court is especially reluctant to talk about the counsel position. Neither Harris nor Jane Petkofsky, the departing counsel, were allowed to discuss their work for this article. “It’s a very low-profile job,” says Richard Schickele, who held the post for the longest period, from 1984 to 1995. “The view was that that was the best way to serve the justices.” Schickele is now general counsel to the California Commission on Judicial Performance. “It really is part of the tradition of secrecy at the court,” says David O’Brien, a government professor at the University of Virginia. O’Brien’s classic book on the workings of the Court, Storm Center, describes the functions of the Court counsel. For his most recent revision of the book, in 2000, O’Brien contacted the office for updates. “It was the only office I had problems getting information from,” he recalls. O’Brien also theorizes that there is some sensitivity about the counsel position because it cuts against the Court’s long-standing boast that its justices perform their judicial functions themselves, without the aides and factotums that assist other public officials. “Louis Brandeis would hate the idea of a legal office for the Court,” says O’Brien. Justice Brandeis once said the public respected Supreme Court justices because “we do our own work.” The counsel position was an innovation of Chief Justice Warren Burger, who sought to bring some of the administrative practices common in other courts to the Supreme Court. He originally envisioned the job as being similar to that of circuit court staff attorneys or motions attorneys who provide an institutional memory for procedure and cases that goes beyond the customary one-year term of law clerks. The position quickly evolved into an office that works in many of the time-consuming dusty corners of the Supreme Court’s docket. Among them: lawyer discipline and disbarment cases, petitions by losing parties for rehearings, revisions of federal rules of procedure, assisting justices with circuit duties, analyzing motions filed with individual justices, and providing continuity for original jurisdiction cases. The latter are suits filed by one state against another, usually involving border disputes, that can drag on for years. The legal counsel periodically briefs the justices on the status of the cases and is actively involved in analyzing their merits. The counsel also helps the Court comply with the Americans with Disabilities Act and other laws that affect federal workers. When the Court is sued civilly by an injured delivery person, for example, the case is handled by the counsel. When demonstrators are arrested, the U.S. attorney’s office in D.C. handles the prosecution, but the counsel is the Court’s liaison to the process. One extraordinary matter that involved the legal counsel was the 1974 Watergate case United States v. Nixon. Citing a memorandum in Justice William Brennan’s files, O’Brien says the legal office of the Court recommended ordering President Richard Nixon to turn over secret White House tapes even before the court of appeals had ruled on Nixon’s claim of executive privilege. The office also, according to some, does initial screening of habeas corpus petitions, though there is a difference of opinion over the level of involvement. “We sometimes handled death penalty cases, but not always,” recalls former counsel Schickele. One of the most sensitive parts of the counsel’s work is in the area of judicial ethics, Schickele says. “Sometimes a justice would come to me and say, ‘I’ve gotten an invitation to do something with this group, and I have ethical concerns,’ ” says Schickele. But he adds that not all justices came to him: “ Some justices had a lot of ethical questions, some I never heard from.” O’Brien reported in his book that in 1985, the legal office handled 469 separate matters-including 180 applications for rehearing, 96 memorandums on motions filed in cases docketed before the Court, and 90 memorandums on so-called original cases. O’Brien finally persuaded the Court to give him more information on the office, and in the new edition of his book he reports that, in 1997, the office handled 911 separate matters. The Court refused to break down the number into categories. Harris, 36, has a broad range of experience in the U.S. attorney’s office and, before that, in private practice. He clerked for Paul Niemeyer, a judge on the U.S. Court of Appeals for the Fourth Circuit, then went to D.C.’s Wiley, Rein & Fielding in 1994. He has been an assistant U.S. attorney since 1997. Late last year and early this year, he was part of the legal team defending Interior secretary Gale Norton in contempt proceedings stemming from the Indian trust dispute before the D.C. federal district court. Almost from the start, the Supreme Court legal counsel’s office has been a two-lawyer office-currently the second person is staff counsel Stephen Gura-and it apparently will stay that way. Says Schickele: “The work keeps two people very busy.”

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