Putting A Thumbprint on History

By Alain L. Sanders

"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."

With reporting by Jerome Cramer/Washington and Andrea Sachs/New York