Todd Peppers and Artemus Ward became the leading scholars on Supreme Court clerks within weeks of each other in 2006.
That was when their books on the subject – Courtiers of the Marble Palace by Peppers, and Sorcerers’ Apprentices, by Ward – were published after years of research unbeknownst to each other.
The books charted the birth, rise, norms and customs of the institution of Supreme Court clerkships. But as they delved into the subject, both authors found that it was the stories of the clerks and their complex relationships with their justices that were most captivating. After their books were published, they decided to collaborate on a sequel of sorts – a series of firsthand accounts of this unique relationship between the most important judges in the land and their young, confident, and temporary assistants.
In Chambers, just published by University of Virginia Press, is the product of that rare act of scholarly cooperation. Some of the chapters are written by other scholars and judicial biographers, some by former clerks themselves, and some by Peppers and Ward. They went for depth, not breadth by focusing on the clerks of a relative handful of justices, and also on some individual clerks, like Lucille Lomen (the first female clerk) and William Coleman Jr. (the first black.)
The narratives, woven together, point powerfully toward the conclusion that the role of Supreme Court clerks has evolved into one that is perhaps less personal but more influential than ever in the life and the work of the Court.
We learn of former Yale Law School Professor Charlie Reich’s 7-day-a-week job clerking for – and living with – the recently widowed Justice Hugo Black in his Alexandria, Va. home. Then there is the Felix Frankfurter clerk whose flawed research caused the Court to order a case re-argued. He begged forgiveness of the justice on all fours. Coleman, the first African-American law clerk, tells of not being able to join his fellow law clerks for lunch at the Mayflower Hotel because of segregation. Justice Frankfurter was “near tears.” Justice William O. Douglas once angrily fired a clerk the day before his wedding, but showed up at the reception and was all smiles. Justice Ruth Bader Ginsburg’s relationship with clerks comes across as more formal and rigorous than many in the past, but with touches of affection and warmth.
Both authors have come away with significant concerns about this highly selective group of mostly young lawyers whose year at the Supreme Court launches their careers in the crucible where law is formed. As Ward put it, “The Court needs the clerks, not the other way around.”
Peppers, a public affairs professor at Roanoke College, and Ward, a political science professor at Northern Illinois University, spoke about the book in an e-mail interview.
Question: The book charts the growing importance of law clerks to the work of the Court. Based on this trend line, what would you guess has been the role of the clerks in the Court’s consideration of the health care cases, now underway?
Peppers: I would say that the law clerks have been burning the proverbial midnight oil, and will continue to do so until the end of the term. Many of the justices have their law clerks prepare bench memoranda prior to oral argument, which includes the reviewing and summarizing of briefs filed with the Supreme Court. That task alone must have been monumental. And, of course, the modern Court relies heavily on the law clerks in the drafting and editing of opinions.
Ward: Even though the justices have already voted on the health care cases, the real work of forming coalitions takes place during the opinion writing process. The clerk network is the channel and the clerks themselves are the vehicle by which the justices negotiate on the content of the opinions and whether justices will join together to form majority and minority coalitions. The clerks have both formal and informal conversations about where their justices stand on the issues and what they need the other justices to agree to in order to sign their names to written opinions. It is a political process of bargaining and accommodation.
Question: From the vignettes and narratives in the book, which justice had the worst experience with clerks, and which justice or justices used their clerks improperly in your view?
Peppers: Clearly, the [William O.] Douglas clerks had the worst of it. While the tension and negativity of the Douglas clerkship experience varied by Term, I think it is safe to say that it was an unpleasant experience. Can you imagine the fear triggered by the threat of being fired from a Supreme Court clerkship? To be fired from a clerkship could kill someone’s legal career.
Question: Robert O’Neil tells how Justice William Brennan Jr.’s clerks boosted his spirits when his wife was ill and helped keep him on the bench for two decades after he said he would quit. Do you think current-day clerks play that same kind of personal role with their justice any more, or has it become “all business?” Why?
Peppers: As the number of law clerks has increased [to the current four], and their job duties have broadened, I think that the clerkship has become “all business.” My sense is that the justices generally found it easier to get closer to their clerks when there were fewer of them and when there was time to pause from the daily grind to talk politics, or history, or the latest gossip. Moreover, I think that books like Closed Chambers and The Brethren have made the justices more reticent to confide in their clerks. This is not to say that there are not clerks from the Rehnquist or Roberts court who aren’t close to their justices – but it’s more of the exception than the rule. I think that this is an unfortunate development, and that something unique about a Supreme Court clerkship has been forever lost.
Ward: The clerks have become an institution unto themselves – a corporate group of brilliant young professionals who have a hand in deciding the most important issues of the day. They don’t come to the Court to learn the law at the foot of a master so much as to use their skills to make the institution function – both administratively and politically. The Court needs the clerks, not the other way around.
Question: Why do you think the clerks have become more and more influential in the case-screening and decision-making process? Is the growing volume of cases the main or only answer?
Peppers: I think that the rising number of cert petitions has contributed to law clerks becoming more important in the process. But I also think that another factor is the changing institutional norms. Simply put, today nobody at the Court thinks twice about having law clerks reviewing cert. petitions (and generate cert. memos), preparing bench memoranda, and draft opinions. Justices from earlier Courts, however, would probably be taken aback by the dramatic delegation of job duties.
What comes to mind is a story about Justice Louis Brandeis, who did not solicit clerk input on the cert petitions. As former Brandeis law clerk (and former Secretary of State) Dean Acheson explained: “In two respects my work with Justice Brandeis was different from the current work of many law clerks with their chiefs. This is sometimes closely concerned with the function of deciding. The Justice wanted no help or suggestions in making up his mind. So I had nothing to do with petitions for certiorari….the Justice was inflexible in holding that the duty of decision must be performed by him unaided….He was equally emphatic in refusing to permit what many of the Justices today require, a bench memorandum or précis of the case from their law clerks to give them the gist of the matter before the argument. To Justice Brandeis…this was a profanation of advocacy. He owed it to counsel – who he always hoped…would be advocates to – to present them with a judicial mind unscratched by the scribblings of clerks.”
Ward: To be sure, the sheer volume of work makes the clerks’ role a crucial one. But there is also a kind of path dependence at work as well. New justices join the bench and almost always simply adopt the practices and conventions that are in place. When institutional changes are made, there are usually unforeseen consequences. For example, when past chief justices decided to assign opinions to be written by each of the justices equally – rather than by who wrote the fastest – the justices who wrote more deliberately turned to the clerks to pick up the slack. Over time a norm of clerk-written opinions took hold.
Question: The advent of the cert pool in the early 1970s has been viewed as the turning point in the importance of the clerks. Do you see it that way?
Peppers: This is Art’s area! I’ll let him talk about the cert. pool. But I do believe that it was a turning point – and the fact that the law clerks are writing for multiple justices does create concern about influence.
Ward: This is an extremely important issue. Prior to the creation of the cert pool, every litigant could be assured that at least nine different law clerks and sometimes many of the justices themselves would examine their legal brief and determine the merits of their appeal. After the pool, fewer and fewer clerks and justices consulted the record. Now only one pool clerk and one clerk outside the pool – currently one of Justice Alito’s clerk – actually reviews the legal briefs and other material in the appeal. The justices base their votes on whether or not to accept a case for review on a pool memo written by a single clerk, perhaps reviewed by only one other clerk in their office. There are far fewer eyes looking at the petitions today than there were in decades past. And there is evidence that pool clerks have slanted their memos and distorted facts and issues in cases just as there is evidence that clerks have de-emphasized the importance of some cases for fear that their recommendations will be criticized. There is no doubt that clerks have more responsibility and therefore more influence in the cert process today than at any time in the Court’s history.
Question: Overall, does the book leave you concerned that the clerks have too much influence over the Court either as gate-keepers or authors? Can or should anything be done about it?
Peppers: This is a question about which I’ve thought long and hard, and my opinion about law clerk influence is slowly evolving. I do think that law clerks have influence, but I’m still struggling to decide whether that influence is appropriate or inappropriate. Law clerks review briefs and cert. petitions, prepare memoranda for their justices on these materials, draft opinions, and serve as sounding boards. How could they not have some degree of influence? While I’m skeptical that law clerks directly change their justices voting behavior, influence can be more subtle and indirect.
For example, how a law clerk presents the facts or legal arguments in a cert petition might shape the justice’s own thinking about the case. And while justices provide their law clerks with instructions in how to structure a legal opinion, I think that the opportunity exists for clerks to put their individual stamp on the application and interpretation of the legal doctrine at issue in the case. On the other hand, the fact that some justices appear to be using ideological litmus tests in selecting their law clerks (through their heavy reliance on feeder court judges) makes me wonder if law clerks are more likely to be in ideological harmony with their justices and less likely to have alternative agendas to pursue.
Ultimately, what baffles me is why the justices rely so heavily on law clerks. Yes, the number of cert. petitions has increased, but the number of cases considered by the Court has steadily decreased. Add to this the efficiency that technology brings in legal research and writing, and I don’t see why the justices don’t follow the practice of their predecessors – as well as the practice of recently retired Justice John Paul Stevens – and prepare their own opinion drafts. Maybe if the justices did, the length of the opinions would shrink and they would be much more readable. Former Supreme Court law clerk John Frank bemoaned the impact that clerks had on the opinion writing process, arguing that modern opinions make for poorer reading because they lack “the Holmes epigram, the Black way with facts, the Frankfurter vocabulary, the Brandeis footnote, the Stone pragmatism.”
Ward: Certainly there is an argument to be made that delegating opinion writing to clerks is improper. If so then this book documents how over time the justices delegated more and more responsibility to clerks not only for the content of opinions but in other areas – such as deciding which cases to accept – as well.
I think we should all be concerned about the influence of law clerks. Indeed, the justices themselves are concerned – so much so that they all adhere to an almost universal rule to have their law clerks work with them for only one year. Why not have them stay on for a second, third, and possibly a lifetime of service as the Court’s earliest clerks often did? Because clerks gain power and influence over the course of their clerkship year – not only with other clerks but also with the justices. In this sense, the justices purge their clerks, just as the clerks are most knowledgeable, powerful, and influential, and replace them with clerks who are far less savvy – and therefore far less dangerous.
Tony Mauro can be contacted at firstname.lastname@example.org. (Disclosure: Tony Mauro wrote an afterword in the book, for which he was not compensated.)