41. Supreme Court clerks

Justice Oliver Wendell Holmes, who served on the Court into his nonage, institutionalized the practice of hiring recent graduates of Harvard Law School as his "clerks."  Holmes, like all the justices before the construction of the current Supreme Court building, worked from his home.  "Clerk" was a fairly accurate job description.   As described by G. Edward White in Justice Oliver Wendell Holmes: Law and the Inner Self, the young law school graduates he hired were essentially secretaries, relieving him of the less-interesting routines of his job, prompting him when he became forgetful, and listening to his charming reminiscences.

Today's clerks, three to five for each justice, are no longer secretaries but the "Junior Supreme Court" in William O. Douglas's half-mocking phrase. They perform most of the tasks of an appellate judge: they review trial records and briefs, they perform legal research, they draft opinions.  At various times in the past it has been widely believed that the opinions coming out of certain justices' chambers were largely, or even exclusively, the work of clerks. 

Perhaps most significantly, the clerks decide what to do about the certiorari petitions.  Thousands of petitions flood the Court every year, and the task of wading through the slush pile is largely delegated to the clerks.  In theory, the clerks don't decide which cases the Court will hear, but in practice they decide which cases the Court won't hear, by making the  rough cut.  They throw out most certiorari petitions and then write memoranda to prepare "their" justice for the weekly conference during which members of the Court gather in secrecy to vote for or against the remaining contenders.

Given the importance of clerks, you might expect the justices to recruit top-notch, experienced lawyers.  But you'd be wrong.  The justices still pick clerks the way Oliver Wendell Holmes did.  They hire the top recent graduates of the top-ranked law schools.  As Tony Mauro showed in a celebrated series of articles a few years back, the justices are slaves to the U.S. News and World Report rankings: 85% of their clerks come from the magazine's top ten.  (Here are links to some of Mauro's articles and other information about clerking at the Supreme Court, courtesy of JURIST.)

The clerks are all smart and hard-working, of course – their grades prove that.  But none of them has ever practiced law.  At most they've hung around a law firm for a summer or two, going to expense-account lunches with the partners and conducting library research.  Virtually by definition, they're not people likely to rock the boat or rebel against authority.  They must have pleased the professors and lower-court judges who recommended them to the Supremes.  They are, in the late Meg Greenfield's Washington taxonomy, Grown-Up Good Children, who live to please.

The justices could hire experienced lawyers who have proved their ability in the actual practice of the profession.  The Court has no trouble attracting experienced professionals to its Judicial Fellows Program, which offers only the promise of a year filled with routine administrative tasks of infinitely less interest than the clerks' work.  

Many first-rate American lawyers would leap at the opportunity to clerk at the Supreme Court, and most legal employers would be happy to grant them a year's leave of absence because they would return from Washington with client-attracting (and judge-intimidating) prestige.  And the task of picking cases for the highest court in the land would no longer be entrusted to people who, however smart, simply have no practical experience on which to base an informed decision about what cases would make a difference to the actual administration of justice in this country.

But could an experienced, legally-sophisticated lawyer be counted on to listen adoringly to an elderly justice's reminiscences?