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In the legal profession, perhaps no figure is as intriguing as the Supreme Court law clerk. Clerks for the high court fascinate us because they are privy to the most important and secretive deliberations in the land. The job is demanding; law clerks put in long hours six days a week, reviewing cert petitions and briefs and researching, writing, and editing the decisions their bosses issue. But the reward is invaluable: Here is an opportunity to assist a justice in deciding what cases are heard and how they are decided and to enjoy the special relationship that comes from working closely with an influential person. After the clerkship ends, the clerk is expected to maintain the confidentiality of that relationship. Occasionally, the code of silence is broken, and the world sees the result as scandalous. Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court, written in 1979 with the help of anonymous disclosures by Supreme Court clerks, depicted Chief Justice Warren Burger as a vain and bumbling administrator and Justice Thurgood Marshall as a disengaged raconteur. And in Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court, Edward Lazarus, a former law clerk to Justice Harry Blackmun, provided a behind-the-scenes account of the Court during his clerkship year (1988-1989). The book’s release in 1998 was accompanied by howls of outrage from those who insisted that Lazarus had violated the code of confidentiality. In the new Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, Todd Peppers provides a thorough, balanced account. Courtiers is not as scandalous as The Brethren nor as controversial as Closed Chambers. Peppers, an academic, aims to be comprehensive in describing the evolution of the Supreme Court law clerk from stenographer to legal assistant to law firm associate. This book will be most appealing to aficionados — historians of the Supreme Court and readers of the equivalent of baseball box scores for law clerks. Although current Supreme Court law clerks have more substantive responsibilities than their predecessors, Peppers rejects the notion, popularized in The Brethren and Closed Chambers, that clerks shape the development of the law or unduly influence how the justices vote. He believes that not only are the justices intellectually capable and accomplished, but they are certainly more knowledgeable about the law and more experienced in making decisions than the novices they hire. More likely, Peppers says, a law clerk may influence a justice’s decision by providing an extra set of eyes and ears. A clerk may call attention to overlooked information in the record or provide stylistic revisions to a written decision. Peppers also details the clerks’ responsibilities in each justice’s chambers, although the repeated discussion of each justice’s practices with respect to cert petitions becomes a bit tiresome. Nevertheless, his focus on the relationship between justice and clerk provides insight into the personalities of a number of justices. Peppers notes that the hiring practices of a number of well-known “activist” judges — Chief Justice Earl Warren and Justices William Brennan Jr. and Abe Fortas — are somewhat blemished. Brennan hired, then fired Michael Tigar as a law clerk after Tigar’s radical political activities and memberships received public criticism. (Fortas and Warren also “purportedly pressured” Brennan to fire Tigar, according to Peppers.) In addition, Fortas rejected a law clerk chosen by his selection committee after learning that the candidate was epileptic. The author’s thorough research also produces interesting insights into a number of less well-known justices. Justice Harold Burton, who served from 1945 to 1958, was the “winner by a landslide” of a vote taken by the law clerks in all nine chambers in the 1954-1955 term “on which sitting justice they would like to effectively duplicate and fill all nine chairs on the Supreme Court bench.” Justice Charles Evans Whittaker, appointed in 1957, suffered from depression during his Court tenure; that condition may have been exacerbated by his unwillingness to delegate work. Peppers also confirms some popular impressions. Justice Byron White, known for his savage play on the Supreme Court’s basketball court (“the highest court in the land”), maintained a competitive relationship with his clerks; at her aerobics and yoga classes, Justice Sandra Day O’Connor was joined by her law clerks. Courtiers is neither The Brethren nor Closed Chambers, but that is precisely the book’s strength. This is a comprehensive account of the work of the Supreme Court clerk. And perhaps, as the author suggests, the problem is not so much with the book as with developments in the nature of the high court clerkship. Peppers writes, “As workload pressures increase, office staffs expand, and the clerkship institution becomes more formalized and rule-bound, it is inevitable that clerkships will become more bland and less memorable.”
Rodger Citron is an assistant professor of law at Touro Law Center. After law school he clerked for U.S. District Judge Thomas N. O’Neill Jr.

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