Clerking for a Supreme Court justice is apparently a very prestigious thing to have on one’s law resume. What exactly do these clerks do? How many clerks does each justice have at any one time? How long do clerks typically stay in their positions?
File, fetch coffee, pick up dry-cleaned robes?
Each justice is allowed to have up to four clerks, except the Chief Justice who gets five.
The primary job of the clerks is research. When a justice is assigned an opinion to write, she will have her clerks organize all the relevant information, deconstruct arguments from briefs and oral testimony and amicus sources, develop the legal framework for the opinion, and assist in drafting the opinion.
ETA: I believe clerks are hired for one term only.
Not to put too fine a point on it, but the clerks write the opinions. The Justices themselves do very little, if any, actual writing.
That depends on the Justice. Some are more involved than others.
Whose term? Supreme Court Justices get appointed for life.
A term of the court - October through July.
One term of the Court, i.e., one year.
One of my ConLaw professors (the late Stephen Goldberg) clerked on the Supreme Court, for Justice Brennan IIRC. It’s getting near the end of the term and there’s a lot of work still to be done, so Brennan writes the first circulation draft of a particular opinion. (Usually, a clerk drafts the opinion, the justice marks it up, the clerk reworks it, and that’s what is circulated to the other chambers.) A couple days later, my Goldberg is having lunch with a clerk from another justice’s chambers, who says that everybody’s raving about this opinion. It’s the best-written product any of them have seen all year, and did Goldberg know who wrote it?
Goldberg responded “I had something to do with it.”
–Cliffy
All Article III federal judges are entitiled to hire law clerks to assist them in their duties; two for District Judges, three for Circuit Court of Appeal Justices, four for U.S. Supreme Court Associate Justices, and five for the Chief Justice. They can generally have one more clerk if they forego a secretary or one extra secretary if they forego a clerk, but most stick with that formula. Law clerks generally serve a one or two year term, but some judges have permanent “career clerks.”
Being a law clerk is much like being an assistant judge. Federal judicial law clerks research and write memoranda, opinions and orders; how much of the writing is done by the law clerk is up to the judge or justice, and usually varies from assignment to assignment. Some judges and justices will insist on writing the initial opinion themselves, have the clerks do the rewrites, and do the final rewrites themselves, while others will do just the reverse and have the clerks do the initial drafts and finish them up themselves. Supposedly among the current Supreme Court Justices only Scalia insists on writing his own first drafts. For more mundane opinions and orders (especially in the lower courts), it’s not at all uncommon for the judge or justice to have the law clerk do all the research on the matter, decide which way the issue should be decided and write the opinion or order in its entirety, with the judge only making changes here and there or even just signing off on it as is if he or she is satisfied with it.
Former law clerks can generally be identified by their charm, wit and good looks.
Bumped.
This might be of interest. The headline is, “Inside the exclusive world of Supreme Court clerks driving America’s legal controversies”:
https://www.cnn.com/2023/12/15/politics/supreme-court-clerks/index.html
Whoa! Fantastic article. And troubling.
…
For the class of 2002-2003, many then-clerks are fighting the same battles, only now at higher levels of the profession.“There was deep and obvious contempt for the progressive left,” recalled liberal Gil Seinfeld, now a University of Michigan law professor, of right-wing clerks. “So far as I could tell, it was not contempt for the people on the left, but for their approach toward thinking about the law. They saw that approach as completely unrestrained and calculated to allow left-leaning judges to do more or less whatever they wanted in the cases that mattered most.”
Seinfeld added: “At the same time, liberal clerks were hardly enthusiastic about conservative interpretive methods, and many of us viewed those methods as thinly veiled techniques for advancing a conservative political agenda.”
…
My bold.
We are very much living with the fallout…
If the current news is any indication, clerks also pass notes to the judge.
Woodward and Armstrong tell the story in The Brethren that one of the justices, during oral arguments in October 1973, wanted regular updates on the World Series game being played that day. At first the memos handed to him were as to each inning, but then at his request it was for each batter, and then each pitch.
Eventually the justice was handed a memo reading, “Jackson flies to right. Agnew resigns.”
I’ve always liked this quaint usage of the word clerk that seems to hark back to a time when even very senior staff with substantial research or supervisory duties might still be called (senior) clerks.
From certain Victorian English books (think Trollope), I get the impression that nearly everybody who worked in a large government ministry was a “clerk”, although senior clerks might get ten times as much salary as juniors.
Similar to the word “secretary”.
Could be the girl who writes in shorthand while her boss dictates a letter. Or could be a Cabinet Secretary in the highest level of government.
It’s interesting how language changes.
And I think it was Versailles that had on display the original secretary.
Apparently it was originally a desk with secret compartments wherein to secrete confidential correspondence, the first designed for use by a French king (Louis XIV?). The name obviously then transfered to those who had the use of such a desk, and then apparently to any assistant who dealt with written materials.
Law clerks in the court here became “judicial staff attorneys” a few years back. I prefer the original title.
I remember this bit from the satirical House of God:
Berry and I were in Our Nation’s Capital, visiting Jerry and Phil, who’d been at Oxford with me as Rhodes Scholars. While I’d chosen the fanaticism of American med school, they’d chosen that of law. At present they were each clerking for Supreme Court Justices, an ‘internship’ similar to mine. There were many parallels. The Chief Justices, like the House docs, were a mixed lot, some borderline incompetent, some alcoholic, some dummies, and a few just plain nonfolks like the Leggo and the Fish. Jerry and Phil were delegated the task of making the highest law of the land, just as I was the one dealing with the actual bodies and deaths. Their main job was to periodically wind up their particular Justice and ‘launch’ him on a particular side of a decision that would affect millions of great Americans. In fact, they spent much of their time at the de facto ‘highest court,’ the basketball court on the top floor, directly above the slightly lower, de jure Supreme Court chambers. One of their main thrills was throwing elbows at a body-beautiful Commie-hunting Nixon Court appointee.
To be fair, the SCOTUS justices may be many things, but not stupid. IIRC it was GW’s AG who tried the Dick Cheney trick “why not pick me?” when they needed a new justice, and wisely withdrew after she was soundly criticised by both sides for not having the basic legal smarts to do the job. We may criticise Kavanaugh for being a beer-drinking frat boy (among other things) but apparently he was a sharp legal mind who proved himself on the appeal court. The only one I question was Coney-Barrett who at her confirmation was asked if the president could order a federal election delayed. SHe said she did not know, which was an unusual answer for an alleged consitutional law professor. More likely, she was lacking in the fortitude to commit to a position - current confirmation process seems to be “say as little as possible”.
White House Counsel, but yeah: Harriet Miers - Wikipedia