Books

By Jeff Bleich
     
      Courtiers of the Marble Palace:
      The Rise and Influence of the Supreme Court Law Clerk
      The role of U.S. Supreme Court clerks has become somewhat hard to ignore lately. On October 3, 2005, John Roberts (a former Supreme Court clerk) became the chief justice of the United States. At his investiture, he assumed the place of the chief justice for whom he clerked, William Rehnquist (another former clerk), and he was sworn in by yet another former clerk, Justice John Paul Stevens. Not only did Chief Justice Roberts's elevation extend a more-than-30-year streak of former clerks serving as chief justice, but it also continued another 30-year streak in which at least one-third of the Court's sitting justices have been former clerks. Despite former clerks' rise in power and prominence, books and articles about Supreme Court clerks have generally failed to give a useful account of the institution of law clerks. Instead, earlier works tend to suffer from at least two big problems: (1) they focus too narrowly on one question (namely, how much influence clerks have on Supreme Court decisions while clerking); and (2) they are usually penned by a former Supreme Court clerk. Todd Peppers's book, Courtiers of the Marble Palace, avoids both traps and provides a surprisingly interesting exploration of the phenomenon of clerks and their contribution to the Court.
      The official version of how the Court makes decisions is that justices read the parties' briefs, ask some questions, make up their individual minds, vote at a conference, and then one of them writes down the majority's view as accurately as he or she can. Clerks and other staff are simply there to pitch in with administrative functions to free up the justices to perform their essential duties. Justice Louis Brandeis lauded this model, observing that "the reason the public thinks so much of the Justices is that they are almost the only people in Washington who do their own work." But the assumption of anyone who bothers to read a book about clerks is that the Court and its justices do not always operate exactly as advertised. Clerks must do something of value at the Court, and potentially that something alters the law of the land. Accordingly, a host of prior books and articles have asked: Do clerks influence the Court's decisions? Unfortunately, asking the question so directly doesn't yield a very satisfying answer?even the mildest suggestion of clerk influence must be watered down to the point of meaninglessness. This analysis has been replicated many times over, and each such effort?from Bob Woodward's gossipy The Brethren to Edward Lazarus's goofy Closed Chambers?ultimately gets subsumed in an argument about the author's accuracy and motives. Eventually, a consensus is reached that we should remain vigilant against subtle, unconscious influences of some sort on the justices' thinking that cannot be accurately quantified, and may not even exist, but should be monitored anyway.
      The reason that books by former clerks have been disappointing is that the clerk's "insider" status only compounds these problems with an understanding of law clerk influence. A former law clerk may have some very good insights about decision making in one chamber at a particular point in time, but revealing any of those insights would violate numerous ethics rules, make the clerk a pariah, and screw up his or her otherwise promising career. Instead, these books draw conclusions about other clerks based on fairly unreliable data: gossip they collected from other clerks that they then extrapo-late across all chambers and times. Moreover, these clerks' accounts are crippled by their authors' fear that any opinion offered about the influence of clerks will be misconstrued. Clerks who claim that some of their colleagues do in fact influence the decisions of the Court will be ridiculed for being the presumptuous, self-aggrandizing poseurs that they are. On the other hand, if they protest that clerks are merely clear vessels through which a justice's uncontaminated wisdom is poured, then they are dismissed as the disingenuous, toady apologists that they are. So clerks who write about the Court invariably play it safe and recite that while they were always scrupulous in not trying to influence the outcome of a case, other clerks could conceivably have acted differently, and so we should be concerned and monitor for unconscious slants, blah, blah, blah.
      Peppers's book is a breath of fresh air because he did not clerk at the Supreme Court and his goal is to understand rather than to judge the institution of clerking. Although Peppers displays his academic bent with some eggheaded discussions of "principal-agent theory" and the difference between an "organization" and an "institution," he really makes his contribution as a historian. Rather than obsess about whether clerks have changed any decisions of the Court, he goes justice by justice and era by era to examine what different law clerks did for different justices and how this changed over time. Along the way, he explores the origins of clerking, how different justices selected their clerks, and what these clerks actually did. He breaks the book into sections based on three distinct eras in the activities of clerks: (1) the early years (1880?1920), when?with a few notable exceptions?the justices principally relied on their clerks to serve as private secretaries and stenographers; (2) a middle era (1920?40), when clerks functioned more in the mode of paralegals; and (3) the modern era (since 1940), when clerks in many ways operate as "associates in a law firm" with extensive responsibilities under the direction and review of a partner/justice.
      This carefully researched history of clerking alone proves to be worth the price of the book. It begins effectively with the patron saint of law clerks: the huge, muttonchopped, and otherwise scarcely remembered Justice Horace Gray. For the first 100 years of the Court, before Gray arrived, justices had no assistance of any sort. In fact, when the justices asked Congress for money to hire secretaries in 1850, Congress declined, for fear that it would cause a lazy justice to "roll from him the labors he naturally shrinks" and instead give to his secretary the ability to shape decisions. For the next 30 years, Congress continued to resist the Court's pleas, and the Court's opinion writing fell further and further behind. Finally, Justice Gray took matters into his own hands and?using his own money?did what he had done while on the Massachusetts Supreme Court: He hired recent standouts from Harvard Law School to transcribe his opinions, handle his household chores, read briefs, sort through cert petitions, and discuss the merits of cases with him. When Congress finally relented and authorized each justice to hire a stenographer or law clerk, however, most of the justices did not follow Gray's model. Some justices hired actual stenographers; others hired lawyers to act mostly as stenographers.
      The results were at best uneven. Justice Joseph McKenna's clerk was forced to resign following charges that he had leaked the outcome of a case to stock investors. Other clerks displayed an alarming propensity for jumping out of windows to their deaths. Chief Justice Morrison Remick Waite's clerk, Raphael Hayden, died mysteriously after falling out of his office window in Fairmont, West Virginia. His successor, Clarence York, who had been Chief Justice Melville Fuller's clerk, fell to his death from a hospital window. None of Justice James Clark McReynolds's clerks appear to have killed themselves, but it is a wonder why not. Despite giving his clerks mostly menial tasks, Justice McReynolds insisted that they not date or have girlfriends, that they not drink or smoke, that they live in the same apartment building as McReynolds so that he could call them at any hour?and even then, he routinely berated and fired them.
      Peppers's account of this era suggests that, although the justices often hired lawyers, they were not particularly seeking legal assistance. Rather, the goal seemed to be finding an able secretary with enough knowledge and interest in the law to also make for a good companion or whipping boy, depending on the justice's predilections. Peppers cautions, though, that we can't be too sure what else the clerks may have done, because of the scant information available from this era and the intimate nature of the arrangements between justices and clerks. Justice Gray's clerks were selected by his brother. Justice John Marshall Harlan hired his son. Justice Fuller hired Justice William Rufus Day's son. Justice Harlan hired a clerk and then that clerk's brother. Justice Stephen Johnson Field hired and fired the same clerk several times over. And thus only the most self-assured justices?Gray, Oliver Wendell Holmes, and Brandeis?openly hired clerks who weren't scribes or blood relatives, and they did so with the expectation that these young lawyers would debate issues and serve as sounding boards for the justices' ideas.
      The second era ushered in a new paradigm of clerking as both the number and influence of clerks increased. After Congress in 1919 unexpectedly appropriated funds for each justice to hire both a secretary and a clerk, every justice eventually hired at least one actual clerk, and sometimes two. The relationships between the clerks and their justices remained intimate, but with the expansion of the Court's workload it also grew more expansive. Over time the justices?principally Chief Justice Harlan Fiske Stone and Associate Justices Felix Frankfurter, Hugo Black, Stanley Reed, and Robert Jackson?not only sought proofreading and technical skills but also gave their clerks increasing levels of responsibility, including assisting in drafting opinions. In part, the broader responsibility was offered as reward to extremely intelligent clerks for their grunt work; in part it was a time-saver for justices who could edit more quickly than they could draft. Peppers found that the clerks from this second era, because of the passage of time, were the most willing to discuss with him their specific functions. To his credit, Peppers does not take these recollections at face value but instead carefully sifts through the hyperbole, false modesty, and faded memory of his interviewees to offer a balanced portrait of the work of each chamber. Overall, these clerks tend to exaggerate the circumstances of their hiring, but almost to a person they understate the amount of work they did for their respective justices. For example, while Justice Frankfurter's clerks consistently demurred that they did not draft opinions and felt lucky even to get a paragraph of their thoughts into a Frankfurter opinion, the justice's contemporaneous papers say that clerks were expected to write first drafts and that he would edit those memorandum opinions.
      Peppers concludes that by the end of this era, in response to the Court's increased workload, increased number of clerks, and increased confidence in those clerks, the role clerks played in crafting opinions and advising on substantive matters had exceeded even the most expansive uses of clerks in the prior era.
      Painting an accurate portrait of the chambers of Justice William O. Douglas, whose tenure on the Court spanned the second and third eras, proves a particularly tough task, given the great disparity in accounts of his relationship with his clerks. Justice Douglas has been vilified in various accounts by former clerks as "volatile," a "sadist," a "tyrant," a "terror," and as one particularly succinct clerk put it, a "shithead" who dumped make-work projects, personal errands, and his furious temper on them. But other respected Douglas clerks recall him as demanding but fair and admired by his clerks. A letter to Douglas from former clerk Warren Christopher and other prominent ex-clerks expressed their "great and continuing admiration and affection" for him in denouncing impeachment efforts against him in 1970.
      The book's treatment of the modern era is both more detailed and more vague. As Peppers notes, his research of more recent justice-clerk relations both benefits from plentiful data and suf-fers from the reluctance of clerks and Court insiders to share insights about that data. Nevertheless, reviewing the Warren, Burger, and Rehnquist courts Peppers easily concludes that as the number of petitions submitted each year increased and the justices became more comfortable with delegating authority to clerks, the clerks became more like junior associates in a law firm than mere scribes or paralegals.
      Beginning in this era clerks reviewed cert petitions and made recommendations about whether review should be granted, not only for their own justice but for other justices as well through the "cert pool." Clerks typically prepared bench memoranda summarizing the briefs of the parties, highlighting potential issues for oral argument, and?in some cases?recommending the disposition of the case. And clerks frequently drafted opinions that?depending on the habits of their justice?might be edited only lightly and published largely as they wrote them.
      In addition, traditions have developed that have made the relationship between the justices and their clerks more chummy, although still somewhat stilted and formal. These include holiday sing-alongs, reunions, skits, sports outings, and various other activities that increase a sense of partnership?albeit an awkward and asymmetrical one. The publication of The Brethren?which portrayed clerks as having assumed unprecedented influence-had the odd effect of making everyone at the Court more sensitive to this relationship, but it did not produce any real, systemic change. The Brethren startled the public by suggesting, for example, that Chief Justice Burger's clerks warned other chambers of their boss's copious errors, that Justice Thurgood Marshall's clerks operated with virtually no guidance, and that Justice Douglas was senile and that his clerks screened his votes.
      Though these accounts caused a serious rupture for a while in the friendly relationship between the justices and their clerks and produced some new demands for confidentiality, they do not appear to have changed the actual work habits of the justices or their relationships with their clerks. If anything, since The Brethren's publication the justices have-according to Peppers-expanded the role of clerks even further and now depend almost exclusively on clerk summaries of cert petitions in deciding which cases to grant.
      In the end, the portrait of the clerkship institution that emerges is a complicated one, with unexpected implications that go well beyond the simple question of whether clerks have ever influenced a Court opinion. On that point, Peppers's work suggests that every set of human relationships contains the potential for some conscious or unconscious mutual influence, and that it is fair to assume that over the past 120 years some clerks have had some influence on some cases somewhere. And yet, during this time different justices consistently held their own views term after term, regardless of whom they hired as clerks. Thus, whatever influence a particular clerk might have in a particular term is likely modest and fleeting.
      The more interesting issue is the force that clerks have become in society and as a community of acolytes, advocates, publicists, apologists, and chroniclers of the Court. A job that was once a ministerial dumping ground for justices' unemployed offspring has evolved into a cradle of future solicitors general, cabinet secretaries, governors, Fortune 500 CEOs, college presidents, members of Congress, White House counsel, and even justices of the Court itself. The training and experience of this group has considerable implications. Its selection?particularly regarding the diversity of clerks along race, gender, and even law school lines?may have broad implications for future leadership across society. The cartel of former clerks who specialize in appearing before the Court may over time be helping to limit and homogenize the voices presented to the Court at oral argument. Peppers does not attempt to explore all of these implications in this book, but it is only the dawn of the Roberts Court; one hopes that there will be another book to follow.
     
      Jeff Bleich is a partner at Munger, Tolles & Olson in San Francsico and a former clerk for William Rehnquist.
     

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