TIME: Almanac 1993/TIME Almanac 1993.iso/time/080690/0806110.000

Text File | 1992-08-28 | 6.1 KB | 137 lines

                                                                                LAW, Page 75

Putting a Thumbprint on History


Supreme Court clerks help shape the nation's final judgments


    "Who are you, two months out of law school, to give such a
patronizing evaluation of an opinion written by a judge of a
United States Court of Appeals who was appointed to his office
by the President of the United States and confirmed by the
United States Senate?"

    Such was the question a 27-year-old novice asked himself on
his first day as an aide to U.S. Supreme Court Justice Robert
Jackson in 1952. His name: William Rehnquist. Whether Rehnquist
was patronizing or not, his qualifications to evaluate
appellate matters have been amply borne out by his subsequent
career, culminating as it has in his present position as Chief
Justice of the U.S.

    Rehnquist is one of scores of distinguished legal figures
who, with the same mixture of audacity and humility, started
out at the top. They were law clerks at the U.S. Supreme Court,
members of the small cadre of top young law graduates who each
term help churn out the work of the nation's highest tribunal.
The clerks' job description is simple, if daunting: to assist
the Justices in the crafting of the nation's final judgments.
Their responsibility, however, is bounded only by the
discretion of the individual Justice for whom they work. Their
duties, which last a year, may range anywhere from technical
researcher to ghostwriter to personal confidant.

    The internships typically begin in the summer, and already
this year's crop of new clerks is arriving in Washington to
prepare for the opening of the court in the fall. The job pays
$34,580 a year and requires  15-hour days, a seven-day workweek,
completely sealed lips and absolute fidelity to the boss. The
prestige attached to it routinely carries former clerks down
the staircase of the Marble Palace and up the steps of the
nation's most powerful law firms, law schools and government
offices. More immediately, there is the exhilaration of the post
itself. "It's a very heady feeling for a 24-year-old to be
arguing with a Supreme Court Justice about what constitutional
law should be," says San Francisco lawyer Dean Gloster, who
clerked for Justice Byron White, himself a former clerk. The
possibility always exists of placing one's thumbprint on the
jurisprudence of the nation.

    And what a thumbprint it can be. Each term the court must
choose the 150 or so cases it will consider out of more than
4,000 petitions. The Justices -- six of whom pool their clerks
for this purpose -- lean on the memos of their young assistants
to help them pick the cases to hear. Once the docket is
selected, the clerks turn out even more detailed documents,
called bench memos, exploring and analyzing all possible sides
of the disputes, to prepare their Justices for the oral
arguments.

    The climax comes at the opinion-writing stage. Although the
Justices confer alone and vote in complete secrecy, the clerks
listen to their bosses' instructions, often see their private
notes and write the preliminary drafts of the opinions. The
custom of Justice Sandra Day O'Connor, recalls University of
Michigan law professor Kent Syverud, is to give her clerks "a
firm outline" of her opinion, then take the clerks' ensuing
draft -- together with all the relevant research -- and "edit
the hell out of it."

    How much influence do the clerks really wield? According to
one recent alumnus, "a clerk has influence but never makes a
decision." The power comes, he explains, "from being able to
track down information and think of new ways to argue a case."
Says AFL-CIO lawyer Walter Kamiat, once a clerk for Justice
Thurgood Marshall: "In most chambers, the Justices are looking
for all the perspectives in a case. I did not feel it was my
function to insert my views in opinions, but it was my
responsibility to raise any issues I saw." Justice Department
lawyer James Feldman, who clerked for Justice William Brennan,
believes that "clerks are more important in the details of how
the opinions are written than in how the cases are decided. The
more technical the issue, the more important a clerk is."

    Not surprisingly, the competition for Supreme Court
clerkships is intense. Seven of the current Justices hire four
clerks each; the other two hire three. Because the court acts
like nine separate law offices, each Justice follows his or her
own acceptance procedures. But among the virtual application
requisites for all Justices are graduation from a top law
school, stellar grades, a law-review editorship and, in recent
years, an interim internship with a lower-court judge. "The
key," advises one former clerk, "is to get to know someone on
the faculty who was a clerk and let that person know the
quality of your mind."

    Once they obtain the job, clerks enter into an intimate
family. The Justices tend to return the loyalty and friendship
they demand of their young assistants. O'Connor, for example,
takes an active interest in the personal lives of her clerks,
sometimes makes lunch for them, even invites them home for
Thanksgiving. Brennan always liked to mix business and pleasure
over daily freewheeling breakfast chats with his clerks. So
does Justice Harry Blackmun. "He's a real baseball fan,"
remembers New York University law professor Vicki Been, "so
there's a lot of talk about the previous day's scores." And
Justice White, once a basketball regular in the courthouse gym,
holds reunions with his former clerks at which he still offers
them a tough game, shooting baskets in "the highest court of
the land."

    Symbiosis is the key to the success of the clerkship
program. For the Justices, appointed for life, the presence of
bright young minds brings a regular infusion of new vitality.
And for the clerks? "For one year," says Washington lawyer
Ronald Lee, who clerked for another alumnus, Justice John Paul
Stevens, "it is the greatest job in the world."


By Alain L. Sanders. Reported by Jerome Cramer/Washington and
Andrea Sachs/New York.