Behind the Bench

The Supreme Court’s hearing on the constitutionality of President Obama’s health care law has attracted a nearly unprecedented amount of interest, not only from individuals demonstrating on the court’s steps—or waiting in line literally for days for a seat inside—but from organizations either supporting or opposing the law. Apparently a record number of briefs have been filed—so-called amicus curiae, in which organizations provide historical and legal data to influence the process. As these briefs are processed by the court’s law clerks, we thought we would go to Todd C. Peppers and Artemus Ward, editors of In Chambers: Stories of Supreme Court Law Clerks and Their Justices, with some of our questions about the preparation for this historic ruling.

Q: When we say the clerks process these briefs, what exactly does that entail?

Peppers: It varies by chamber and by justice. Many justices on the Rehnquist and Roberts courts have had their law clerks prepare bench memoranda prior to oral argument. The bench memo is a basic outline of the appeal before the court, including its procedural history and the main legal claims/arguments made by the parties. Some law clerks even prepare questions for the justices to ask.  In drafting these bench memoranda, law clerks are often asked to review the amicus curiae briefs and prepare summarizes of these briefs for the bench memo. After receiving the bench memoranda, some justices will have either informal conversations or formal meetings with their clerks to discuss the memoranda and the upcoming hearing.

Ward: Of course, the clerks are not starting from scratch when they construct the bench memo. They have the cert pool memo that already outlines the issues and arguments—and, of course, the briefs from the parties in the case, as well as the lower-court opinions.

Q: One Washington lawyer, who calls this case “the blockbuster of blockbusters,” has completed a study showing amicus briefs being cited increasingly often in court rulings. If this is the case, more than ever is hinging on the clerks’ work. How much actual responsibility are they given—is it mainly drudgery or does it require substantial expertise and creativity? And do you see the clerk’s role gaining in importance?

Peppers: This is the most fascinating question regarding the clerkship institution, namely, the influence of law clerks.  Clearly, the modern law clerk has much more substantive responsibility than his or her predecessors. Today, the modern law clerk is involved in all aspects of the chamber’s work—from reviewing cert petitions and preparing bench memoranda to drafting opinions.  During the final years of the Rehnquist Court, Justice Stevens was the only justice who prepared the first drafts of his opinions.  The other justices met with their law clerks, gave them formal instructions (either oral instructions or written instructions), and then reviewed, edited, and re-worked the draft opinions. Whether this process allows law clerks to wield influence has been subject to debate and discussion by court watchers. Former Supreme Court Justice Louis Brandeis once commented that “the reason why the public thinks so much of the Justices is that they are almost the only people in Washington who do their own work.”  This is clearly no longer the case, as the justices rely heavily on their clerks.

Ward: Clerks are particularly important in cases, such as this one, where there are a substantial number of briefs to wade through, there are multiple legal arguments to consider, and the stakes are high politically.

Q: How many clerks does each justice typically have? I’m wondering how many people this work is spread among.

Peppers: Each associate justice can hire up to four law clerks; the chief justice can hire five. Additionally, the law clerks for retired justices are often “farmed out” to the associate justices.

Q: Are all clerks involved in the process? If not, how are they chosen—is it an honor to be pulled for this duty?

Peppers: Typically, the aforementioned job duties are evenly divided amongst the clerks in the chambers.

Ward: Clerks are typically assigned cases to work on at random, though some clerks do trade cases either with or without the approval of their justice. Draft opinions are often reviewed by all the clerks in a chambers, regardless of which clerk initially drafted it.

Q: In what other ways are clerks helping the court in the preparation for this week’s case?

Peppers: I’m sure that the justices return after oral argument with legal issues that they want to clerks to research prior to the next day of oral argument.  And while this may not constitute “help,” I’m sure that many of the clerks are in the courtroom—watching the historic proceedings.

Q: When the health-care caravan moves on after this week, will the clerks’ jobs become any easier, or are their lives wall-to-wall work?

Peppers: Clerking on the Supreme Court is the most prestigious legal internship a young lawyer can have.  And it typically involves long hours of work.  What will come next is the drafting of the majority opinion, and with likely accompanying concurring and dissenting opinions—all work which will require the assistance of the clerks.  In short, the rest of the Term will be very busy for these young legal assistants.

Ward: Clerks not only aid their justices with the legal issues in cases but also act as unofficial ambassadors between chambers as the justices begin to write opinions and form coalitions. The clerks discuss the issues and the positions of their justices with one another and act as go-betweens among chambers forming an informal clerk network. In this sense the job of a clerk can be just as political as it is legal.