In Chambers

Stories of Supreme Court Law Clerks and Their Justices

Todd C. Peppers, Artemus Ward, Todd C. Peppers, Artemus Ward

• Publisher: University of Virginia Press
• Year: 2012
• eBook ISBN: 9780813932668
• Topic: Law
• Subtopic: Legal History
• Index: Law

Written by former law clerks, legal scholars, biographers, historians, and political scientists, the essays in In Chambers tell the fascinating story of clerking at the Supreme Court. In addition to reflecting the personal experiences of the law clerks with their justices, the essays reveal how clerks are chosen, what tasks are assigned to them, and how the institution of clerking has evolved over time, from the first clerks in the late 1800s to the clerks of Justice Ruth Bader Ginsburg and Chief Justice William Rehnquist.

In Chambers offers a variety of perspectives on the unique experience of Supreme Court clerks. Former law clerks—including Alan M. Dershowitz, Charles A. Reich, and J. Harvie Wilkinson III—write about their own clerkships, painting vivid and detailed pictures of their relationships with the justices, while other authors write about the various clerkships for a single justice, putting a justice's practice into a broader context. The book also includes essays about the first African American and first woman to hold clerkships. Sharing their insights, anecdotes, and experiences in a clear, accessible style, the contributors provide readers with a rare glimpse into the inner workings of the Supreme Court.

I	The Origins of the Clerkship Institution

TODD C. PEPPERS

Birth of an Institution

Horace Gray and the Lost Law Clerks

In a vault hidden away in a downtown Boston bank rests a large silver loving cup. The cup was presented to Associate Justice Horace Gray on March 22, 1902, by his law clerks, and engraved on its tarnished surface are the names of the nineteen Harvard Law School graduates who served as Justice Gray’s law clerks.¹ While the details surrounding the presentation of the cup have been lost to history, the gift was likely prompted by the failing health of Justice Gray and his future departure from the Supreme Court. The loving cup is still held by the Gray family, passing to the heirs of Professor John Chipman Gray (the famous Harvard Law School professor and half-brother of Horace Gray) upon the death of the childless Horace Gray.

The loving cup, however, is more than a mere historical curiosity, for it contains information previously unknown to students of Supreme Court history, namely, a complete list of the men who clerked for Justice Gray. While government records contain the names of Gray’s later law clerks, the identity of Gray’s first three clerks — Thomas Russell, William Schofield, and Henry Eldridge Warner — are not contained in Supreme Court records. The reason why Russell, Schofield, and Warner have not been previously acknowledged for their role in the creation of the clerkship institution is not due to conspiracy and cover up. Since Horace Gray personally paid the salaries of the three men, they did not receive a paycheck from the federal government, and their names were not recorded on government rolls. When the justices were authorized in 1886 to hire stenographic clerks, governmental bureaucrats began recording the names of these new judicial assistants — and thereby created the false impression that law clerks had not arrived at the Supreme Court until 1886. Given this historical confusion about the identities of the first law clerks, this loving cup is arguably the “holy grail” for Supreme Court historians who study the origins of the clerkship institution.

The main purpose of this essay is to acknowledge Horace Gray’s primary role in the creation of an enduring institution at the United States Supreme Court and, moreover, to restore Thomas Russell, William Schofield, and Henry Eldridge Warner to their rightful place as the first law clerks. I conclude by briefly discussing the other Harvard Law School graduates who clerked for Justice Gray, an impressive collection of young men who went on to careers in the law, the legal academy, and politics.²

A Brief History of the Supreme Court and Support Staff

As discussed in the book’s introduction, Supreme Court justices have not always had the services of law clerks. Throughout most of the nineteenth century, the Supreme Court justices were assisted only by a small handful of support personnel. The Court’s original support staff consisted of the clerk of the Supreme Court, the official Court reporter, and the marshal of the Court. In subsequent decades, the staff of the Supreme Court was supplemented with what Chief Justice Roger Taney called “servants about the Court,” to wit, messengers³ Political scientist Chester A. Newland writes that although Congress first appropriated funds for the hiring of messengers in 1867, individual justices employed messengers before that date.⁴ Newland states that messengers were given a number of different job responsibilities, including serving as barbers, waiters, and chauffeurs.

In the years following the Civil War, the Supreme Court’s workload grew sharply, and the justices began to publicly call for reform and assistance. Attorney General Augustus H. Garland provided the justices with some relief, recommending in the Annual Report of the Attorney General of the United States for the Year 1885 that each justice be provided “by law with a secretary or law clerk, to be a stenographer … whose duties shall be to assist in such clerical work as might be assigned to him.” In support of the recommendation, Attorney General Garland argued that the “immense” work of the justices demanded additional staff support, noting that “while the heads of Departments and Senators have this assistance, I do not think there is any good reason that the judges of this court should not also have it.”⁵

Congress swiftly acted upon Attorney General Garland’s recommendation, and in 1886 it authorized funds for the hiring of a “stenographic clerk for the Chief Justice and for each associate justice of the Supreme Court, at not exceeding one thousand six hundred dollars each.”⁶ While the justices differed in who they hired to serve as their stenographic clerk — some justices hired lawyers or law students, while a few hired professionally trained stenographers — within fifty years the position had evolved into what we recognize as the modern law clerk.

Horace Gray and the Creation of the Supreme Court Clerkship

When Horace Gray was appointed to the United States Supreme Court in 1882, he began hiring Harvard Law School graduates to serve one-or two-year appointments as his assistants. Gray had previously been the chief judge of the Massachusetts Supreme Judicial Court from 1873 to 1882, and in this role he first started employing clerks. The clerks were selected by Horace Gray’s half-brother, the aforementioned Professor John Chipman Gray. From the very beginning Professor Gray evidenced a keen eye for legal talent, and the clerks that he sent to the Massachusetts Supreme Judicial Court included future Supreme Court justice Louis D. Brandeis.

Justice Gray never publicly discussed his motivation for hiring law clerks, but the most likely explanation for Gray’s decision to employ assistants was related to workload considerations. As a jurist, Gray “delighted to go to the fountains of the law and trace its growth from the beginning,” for he “believed that an exhaustive collection of authorities should be the foundation of every judicial opinion on an important question.”⁷ Gray’s indefatigability in legal research might well explain his motivation in seeking out legal assistance.

So who was this creator of the Supreme Court law clerk? Horace Gray was a large, balding man with “mutton chop” whiskers and a stern countenance. Former Gray law clerk Samuel Williston vividly describes Justice Gray:

In appearance Judge Gray was one of the most striking men of his time. He was six feet and four inches tall in his stockings. Unlike most very tall men, all the proportions of his body were on the same large scale. His massive head, his large but finely shaped hands, and the great bulk of his frame, all seemed to mark him as one of a larger race than his fellows.⁸

Gray’s contemporaries viewed him as a man “possessed of great physical as well as great mental vigor,” an individual blessed with “abounding vitality and a delightful flow of animal spirits,” a jurist endowed with an “extraordinary” memory, a strong work ethic, and heightened awareness of “the dignity of the court and the position of judge.”⁹ Attorney Jack B. Warner painted a picture of a man who was more deity than mortal. “His great stature and commanding figure heightened the impression of a presence never to be trifled with, and suggested the classic demi-god walking on the earth with his head reaching among the clouds.”¹⁰ On the bench, Gray displayed a grim, cold demeanor, and his judicial energies extended not only to cases before the court but “to the color of the clothes worn by some members of the bar in court.”¹¹ Given Gray’s status as the creator of the modern law clerk, perhaps it is only fitting to describe him in biblical terms.

Once on the Supreme Court, Gray treated his young assistants as more than mere scriveners. Former law clerk Samuel Williston writes that “[t]he secretary was asked to do the highest work demanded of a member of the legal profession — that is the same work which a judge of the Supreme Court is called upon to perform.” After oral argument, Gray would give his young clerks the applicable briefs and legal pleadings and would ask them to review the “novelettes” and report back to the justice with their independent thoughts. Gray did not share his own opinion of the case with his secretary, but “[i]t was then the duty of the secretary to study the papers submitted to him and to form such opinion as he could.” Since Gray “liked best to do his thinking aloud and to develop his own views by discussion,” Gray and his secretary would then sit down before the Court’s Saturday conference and discuss the pending cases — first Gray would ask his secretary to “state the points of the case as best he could,” with Gray closely examining and challenging the secretary’s “conclusions.”¹² “When I made them [the reports],” Williston writes, “the Judge would question me to bring out the essential points, and I rarely learned what he thought of a case until I had been thoroughly cross-examined.”¹³

Former law clerk Langdon Parker Marvin also recalled these oral examinations by Justice Gray, and he provides a vivid description of these sessions:

After he had settled himself in front of the fire with his black skullcap on his head and a five-cent Virginia cheroot in his mouth, he would say to me, “Well, Mr. Marvin, what have you got for me today?” So then I would tell him, having fortified myself with a little bluebook in which I had made notes of the various cases. Of course, I couldn’t read all of the records, or even all of the briefs, but I made an analysis of the cases and I would tell him what the facts in each case were, where it started, how it had been decided in the lower courts, how it got to the Supreme Court of the United States, and what the arguments on either side were.¹⁴

Throughout his tenure on the Supreme Court, Gray permitted his clerks to offer opinions as well as case recitations. Williston writes that Gray “invited the frankest expression of any fresh idea of his secretary … and welcomed any doubt or criticism of his own views,” while Marvin confesses that “he rather astonished me early in the year by saying ‘How do you think it ought to be decided?’ ”¹⁵ Former Supreme Court law clerk Ezra Thayer echoes Williston and Marvin’s comments about the intellectual give-and-take between Gray and his young charges. Thayer writes that Gray “liked best to do his thinking aloud, and develop his own views by discussion.” During these discussions Gray “would patiently and courteously listen to the crudest deliverances of youth fresh from the Law School.”¹⁶ In his memoirs, Williston is careful not to create the appearance of undue influence. “I do not wish, however, to give the impression that my work served for more than a stimulus for the judge’s mind … my work served only as a suggestion.”¹⁷

Gray then adjourned to the Saturday conference. Williston writes:

When … the Judge returned, he would tell the conclusions reached and what cases had been assigned to him for opinions. Often he would ask his secretary to write opinions in these cases, and though the ultimate destiny of such opinions was the waste-paper basket, the chance that some suggestion in them might be approved by the master and adopted by him, was sufficient to incite the secretary to his best endeavor.¹⁸

Marvin also recalls assisting with the drafting of opinions, but only to a limited extent. “When the Court went into recess, Mr. Justice Gray would begin his work on the opinions allotted to him. I would help him on that, looking up law, and sometimes preparing statements of fact which appeared in the Court records — but, of course, he wrote the opinions himself — in long-hand, with a stub pencil.”¹⁹

In short, the secretaries took part in all aspects of the decision-making process. They not only culled through the records and briefs in order to distill the relevant facts and legal arguments for Justice Gray, but they then debated and argued their conclusions and suggested holding with the justice. Once Gray was assigned an opinion, the secretaries often prepared the first draft of an opinion — while that draft may have landed in the trash can, it provided the secretaries with the critical chance to frame the issues and shape the legal analysis necessary to reach the Court’s position.

Finally, the free rein extended to the c...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Foreword
• Introduction
• Part I The Origins of the Clerkship Institution
• Part II The Premodern Clerkship Institution
• Part III The Modern Clerkship Institution
• Afterword
• Appendix A: Survey of Threshold Interest in Forming and Joining an Association of Supreme Court Law Clerks
• Appendix B: Donald Cronson to William H. Rehnquist, December 9, 1975 — A Short Note on an Unimportant Memorandum
• Notes on Contributors
• Index