Clerks of the Court

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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

Clerks of the Court The clerk of the Court, one of the Supreme Court's five statutory officers, is responsible for the day‐to‐day administrative management of the Court's caseload. Since the office was established by the Court's first formal rule, on 2 February 1790, only nineteen individuals have served as clerk of the Court.

The first clerk, John Tucker, was selected during the Court's first session and given responsibility for the Court's library, courtroom, and employees, and for collecting justices' salaries and finding local lodgings for the justices. Many of the clerk's early duties were later taken over by the court reporter, the marshal of the Court, and, more recently, by the administrative assistant to the chief justice.

Four of the following nineteen individuals to serve as clerk of the Court held that position for more than twenty‐five years: John Tucker (1790–1791); Samuel Bayard (1791–1800); Elias B. Caldwell (1800–1825); William Griffith (1826–1827); William T. Carroll (1827–1863); D. W. Middleton (1863–1880); J. H. McKenney (1880–1913); James D. Maher (1913–1921); William R. Stansbury (1921–1927); C. Elmore Cropley (1927–1952); Harold B. Willey (1952–1956); John T. Fey (1956–1958); James R. Browning (1958–1961); John F. Davis (1961–1970); E. Robert Seaver (1970–1972); Michael Rodak, Jr. (1972–1981); Alexander Stevas (1981–1985); Joseph F. Spaniol, Jr. (1985–1991); and William K. Suter (1991–).

Over the two centuries since the first clerk was selected, the clerk's duties have greatly expanded to include maintaining the Court's dockets and calendars; receiving, recording, and distributing to the justices all motions, petitions, statements and briefs filed in all cases; collecting all filing fees; preparing and maintaining the order list and journal (which contain all the Court's formal judgments and mandates); preparing the Court's formal judgments and mandates; handling the preparation of all in forma pauperis briefs; obtaining certified case records from lower federal courts; supervising the Supreme Court bar (including the admission and disbarment of attorneys who wish to practice before the Court); and providing procedural advice to any counsel or litigants who need assistance in complying with the Court's rules.

The clerk often works closely with other Court personnel to carry out the Court's business. The clerk participates in monthly meetings with the other officers of the Supreme Court to discuss current Court business under the direction of the administrative assistant. Along with the marshal, the clerk participates in the Court's formal opening ceremonies before oral arguments begin. After the justices have made their decisions and the Court's written opinions are printed, a final copy goes to the clerk for safekeeping and to the reporter of decisions. When case decisions are announced by the Court, the clerk's office notifies the information officer, who then distributes copies of each new opinion to the press.

The clerk and his assistant, the chief deputy clerk, currently have a twenty‐five member staff to help handle the ever‐increasing paperwork; prepare the Court's calendars; and check, record, and sort all the incoming cases for review. Of the over 5,100 annual cases the clerk's office is currently processing, only 150 to 180 are accepted for oral arguments.

In spite of the computer system installed in 1975 to help monitor the clerk's records, every motion and thousands of briefs must still be entered and processed by hand. The Office of the Clerk operates a word‐processing and data‐management system, which is programmed and maintained by the relatively new Data System Office. The justices' chambers have a separate computer network for opinion‐writing tasks, one that produces a camera‐ready document (see Computer Room and Computers).

The clerk's office was entirely self‐supporting during its first hundred years. The clerk's salary and those of his assistants, as well as all operating expenses, were paid out of the filing fees the office collected. From 1800 to 1883, the clerks were paid considerably more than the justices. In 1883, Congress required the Court to be strictly accountable for its funds. Filing fees, docket fees, and administrative fees are collected by the clerk's office and go into the U.S. General Treasury Fund. The salaries of all Court personnel, as well as the Court's expenses, are now appropriated by Congress. In 1988, the salary of the clerk was set at $75,000.

See also Clerk, Office of the; Staff of the Court, Nonjudicial.

Martha Swann