Clerks of the Justices

Clerks of the Justices are the justices' personal assistants and among the most important of the Supreme Court's support staff. The law‐clerking institution began in 1882, when Justice Horace Gray hired a recent Harvard Law School graduate. Gray had begun hiring clerks when he was chief justice of the Massachusetts Supreme Court in 1875, and he continued this practice at the U.S. Supreme Court, where he paid their salaries himself. The 1922 Appropriation Act allowed each justice to employ one clerk at an annual salary of up to $3,600, and in 1924 Congress made law clerk positions at the Court permanent.

Gray's half‐brother, John Chipman Gray, a Harvard Law School professor, initially selected Harvard honor graduates for one‐year terms at the Court, working with Justice Gray and his successor, Oliver Wendell Holmes. When John Chipman Gray retired, Felix Frankfurter provided Holmes with Harvard graduates. Gradually, other justices adopted the practice. Justice Louis D. Brandeis, like Gray, hired recent Harvard Law School graduates. Justice Harlan F. Stone selected clerks from his alma mater, Columbia University Law School.

Selection processes varied between 1900 and 1945. Many justices hired students and recent graduates of law schools in Washington, D.C., occasionally retaining clerks for long periods of time. Justice Pierce Butler employed one clerk from 1923 until 1939; Justice Owen J. Roberts kept another clerk from 1930 to 1945. Sometimes older attorneys in Washington, D.C., law firms clerked for the Court. Occasionally the Justice Department selected clerks from among its younger employees with the understanding that they would return to the department when their tenure at the Court ended.

Justices often retained the law clerks of their predecessors or hired friends and family of other justices. When Charles Evan Hughes replaced Chief Justice William H. Taft, he retained Taft's law clerk and personal secretary. Chief Justice Melville W. Fuller's first law clerk, James S. Harlan, who had read law in Fuller's Chicago law office from 1884 to 1888, was the son of Justice John Marshall Harlan. Fuller also employed Justice William R. Day's son, Stephen, as a clerk. Two of Day's sons clerked for their father. Harlan's first clerk was his son, John Maynard Harlan.

Some justices have expected their clerks to agree with them philosophically and to share their habits. Justice James C. McReynolds frequently insisted that his clerks be single and not smoke or chew tobacco. McReynold's strong language and offensive behavior made it quite difficult for friends to find clerks willing to work for him.

As the Court's caseload increased, so did the number of law clerks. Today, each justice may have as many as seven assistants: four law clerks, two secretaries, and one messenger. Chief Justice William H. Rehnquist and Justice John Paul Stevens usually hire only three law clerks. Retired senior justices, like Warren Burger and Lewis F. Powell, may hire one secretary and one law clerk at government expense.

Justices have total control in selecting their clerks; each usually receives 250 to 350 applications annually. While most law clerks work at the Court for only one year, many justices retain a clerk from the previous term to act as a “senior clerk” within the chambers. Not until the mid‐1970s were women regularly selected: as of 1970, only three women had clerked at the Court; by 1986, that number had risen to seventy‐one.

Most clerks have attended prestigious law schools (including Harvard, Yale, Stanford, New York University, the University of Virginia, and the University of Chicago), have graduated at the top of their class, and have clerked in a lower federal court for at least one year. Upon leaving the court, many clerks work for large national law firms. Some move to the Justice Department, often working in the solicitor general's office. Several former clerks have become law school professors. Thirty‐two former clerks have become judges, including three who have become U.S. Supreme Court justices: William Rehnquist clerked for Robert H. Jackson; John Paul Stevens clerked for Wiley B. Rutledge, and Byron R. White clerked for Fred M. Vinson.

Clerks' duties include reading, analyzing, and preparing memoranda for the justices (see, e.g., Cert Pool). After joining the Court in late summer, they assist justices in the two‐stage case selection process through the fall. Clerks review case records, research questions of law, categorize essential information in all incoming cases, and summarize petitions. In ruling on cases to be selected for review, justices often rely on their clerks' summaries and recommendations. During the spring, after the Court has reached its decisions, clerks assist the justices in the preparation of written opinions.

In spite of the valuable assistance law clerks render the Court, their actions have not escaped criticism. The annual turnover of clerks leads to a lack of institutional memory at the Court. Chief Justice Burger created the Office of Legal Counsel in 1973 to provide a measure of continuity for both the chief justice and the Court that the revolving‐door law clerk system could not provide.

The law clerks undeniably contribute to the decision‐making and opinion‐writing process, but the extent of their contributions has been a matter of some debate by outsiders. Justices have often praised their clerks, but have also been quick to point out that they themselves, not the clerks, decide cases.

The clerks and their justices form close, personal relationships. Clerks naturally are privy to confidential information. Preserving the confidentially of the justices' working habits, personal opinions, and attitudes toward peers was an honored tradition—at least until the 1979 publication of The Brethren, by Bob Woodward and Scott Armstrong, a book about the Court based on interviews with former law clerks and other court personnel.

Because of their position, clerks have a uniquely “inside” view of the Court and the justices, as well as access to private information in opinion drafts, internal memoranda, and discussions. The clerks' duty to be discreet is not well defined, but the justices certainly expect them to uphold that duty. Regardless of the possible problems, the Court clearly could not manage its current caseload without the valuable assistance law clerks provide.

Martha Swann