From Miranda to Booker: 40 years of historic and hilarious moments clerking for the U.S. Supreme Court
Published in 2017 Southern California Super Lawyers magazine
By Stan Sinberg on January 20, 2017
They witnessed some of the biggest cases in the last 60 years:
Miranda v. Arizona, Clay v. United States, Bush v. Gore.
They walked and talked (and shared burgers and did aerobics) with giants.
They’re former U.S. Supreme Court clerks, and last fall Super Lawyers interviewed 11 of them, all on our Southern California list, who worked on the high court between 1965 and 2005. These are their stories.
CHOOSING YOUR JUSTICE
Each year, there are 36 openings for U.S. Supreme Court clerkships. But which justice do you plead your case to? How do you get in?
Kenneth Ziffren, Ziffren Brittenham; Entertainment & Sports (Earl Warren 1965-66): California Supreme Court Chief Justice Roger Traynor offered me a clerkship but I declined, taking a chance that [U.S.] Chief Justice Warren would pick me, which he did.
Mark Helm, Munger, Tolles & Olson; Business Litigation, Intellectual Property Litigation (Warren Burger 1983-84): I didn’t apply to Rehnquist. He was just too philosophically opposite to me. Burger was also conservative, but more centrist.
Daniel Bussel, Klee, Tuchin, Bogdanoff & Stern; Bankruptcy: Business (Sandra Day O’Connor 1986-87): [I went with] Justice O’Connor—based largely on advice that it would be exciting to clerk for someone who was closer to the ideological center, pragmatic in her decision-making process, and still open to persuasion on many issues.
Mark Haddad, Sidley Austin; Appellate (William J. Brennan 1986-87): I first applied to Brennan. He was taking applications earlier than the other justices. When I was in law school, he was already a legend.
You never forget your first SCOTUS meeting.
Kelly Klaus, Munger, Tolles & Olson; Intellectual Property Litigation, Appellate (Anthony Kennedy 1995-96): It’s obviously an intimidating experience, but Justice Kennedy was a very warm, gracious man from the outset. For a half hour, he asked me about law school, judges I’d clerked for, and the like.
Robert E. Gooding Jr., Morgan, Lewis & Bockius; Securities Litigation (Harry Blackmun 1970-71): Justice Blackmun had a way of putting you at ease immediately and making you feel at home—friendly, down to earth, self-effacing, almost a father figure. We were both Midwesterners at heart and hit it off from the start.
Bussel (O’Connor 1986-87): Justice O’Connor was a serious person of great personal force. Her eyes pierced right through you even as she maintained a friendly demeanor and body language.
Daniel Levin, Munger, Tolles & Olson; Appellate, Business Litigation (Ruth Bader Ginsburg 2004-05): Justice Ginsburg asked me about a note I’d written in the law review; she said she liked it but didn’t agree with my conclusion. She offered me the clerkship at the very end of the interview. She’d spoken with my professors and the prior judge I’d clerked for. She’d done her homework.
Laura Brill, Kendall Brill & Kelly; Appellate, General Litigation (Ruth Bader Ginsburg 1996-97): Justice Ginsburg’s office was filled with art, personal photographs, and objects of sentimental value, including the famous photograph of her and Justice Scalia riding an elephant together in India.
Julian Poon, Gibson, Dunn & Crutcher; Appellate (Antonin Scalia 2000-01): I remember Scalia looking up good-humoredly from my application to comment on where I went to college: “Stanford, huh? Smart kids, but they don’t learn much there, eh?” He taught there briefly as a visiting professor.
Once you got the gig, things moved quickly.
Haddad (Brennan 1986-87): Brennan [called his office one day and] asked to speak to a law clerk, so his secretary handed me the phone. He said, “Hi’ya, pal. How’s everything going?” He called everyone “pal.” I joked that the building was still standing. He replied, “Still standing? Still standing? What are you doing around there? Go shake things up a bit, will ya?”
Gooding (Blackmun 1970-71): My two co-clerks and I established the tradition of going down to the basement public cafeteria every morning at about 8 a.m. for doughnuts and coffee with Justice Blackmun. Frequently, law clerks from other chambers would join us. We would talk about anything: politics, the latest Washington Post headlines, cases currently before the court and, more often than not, baseball, one of Justice Blackmun’s favorite subjects.
Helm (Burger 1983-84): The Chief wanted to make sure you knew that the clerks were clerks and the justice was the justice. The Brethren by Bob Woodward had portrayed clerks as if they were in charge and the justices were along for the ride, and my speculation is that he was reacting to the sources for that book—which were mostly clerks. After the first few weeks, he started to let his guard down.
Haddad (Brennan 1986-87): Brennan called us in and addressed us sternly. “There’s one rule in this chamber you all need to follow.” Our bodies went on alert. “One of you has to arrive before 8 a.m. to get the coffee pot going.” The rule was one of the great joys of clerkship because it meant you were there meeting with him for an hour every morning, and it was a privilege to do so. The morning coffee ritual often involved visits from former clerks or judges or his friends.
THE OTHER EIGHT
A time-honored tradition is clerks lunching with, and getting to know, the other justices.
Gregory Dovel, Dovel & Luner; Intellectual Property Litigation (Antonin Scalia 1987-88): Justice Brennan was the most striking. He was warm, had a broad smile, and was very funny. He had a habit of putting his hand on your arm. He had a genuine interest in people.
Haddad (Brennan 1986-87): Justice Thurgood Marshall was the most incredible raconteur I’ve ever heard. He told one hysterical story after another.
Klaus (Kennedy 1995-96): Chief Justice Rehnquist was a man of routine. We’d heard we’d lunch at The Monocle and he’d order a Monocle burger with cheese and a Miller Lite, which he did. He shared stories of when he was a law clerk and how the court had changed. Justice Scalia’s favorite restaurant was the A.V. He was in fine form: gregarious, telling lots of stories. He’d order pizza with anchovies, and you had to eat the anchovies. On the walls were photos of politicians and dignitaries. He said, “You’ll never see my picture on the wall. You know why? Because I don’t want someone pointing to it in 50 years and saying ‘Who was that guy?’”
Ziffren (Warren 1965-66): I got to be friendly with Justice William O. Douglas. I would go on walks with him and his clerk. He was very big on conservation and nature, and told us old stories about his career—about his time in D.C. in the ’30s
The clerks wrote certs, researched precedents, helped draft opinions.
Ziffren (Warren 1965-66): There was a labor case that was decided 5-4, and the Chief decided to write the decision. I discussed the case with him and he gave me his approach and guidelines, and I followed those. We circulated it, and when it came back it was 9-0. I was very, very pleased.
Gooding (Blackmun 1970-71): At the beginning of the term, Justice Blackmun wrote most of his own opinions from scratch. But as the term progressed and the workload increased, he began having his clerks prepare first drafts. The workload was staggering, and the days were long, but it was immensely satisfying.
Dovel (Scalia 1987-88): Scalia would go through the briefs, then he’d gather the “clerkerati” to his office to debate the case merits before oral arguments. The goal was always to find the right answer. At that time, Scalia was still working out his basic approaches to issues. In that process, he was adamant that the court couldn’t make the law; it had to apply it as written.
The Supreme Court is often bitterly divided, with justices issuing blistering dissents. Did that carry over into personal interactions?
Levin (Ginsburg 2004-05): Even in cases that split 5-4 along ideological lines, I didn’t see much evidence of factionalism.
Haddad (Brennan 1986-87): Brennan and Rehnquist were often on the opposite side of cases, and Rehnquist had just become chief justice; so we thought there might be tension or frustration on Brennan’s part. When the justices return after summer break, they have “The Long Conference” where they go through two to 3,000 cert petitions. It routinely takes three to four days. After the first day of the conference, Brennan said, “This new chief is gonna be great! We practically got through the entire conference list today. He’s so efficient!”
Dovel (Scalia 1987-88): I was working on this case, and we needed Justice White’s vote. Scalia said, “Let’s just give him a call.” He dials the number. “Byron, this is Nino. Uh-huh. Uh-HUH! Well, then bleep you!” I’m in shock. Open-mouthed. How do I disappear from this room? Then Scalia smiles and says, “He didn’t pick up. Let’s try him later.”
BEHIND THE SCENES
The Supreme Court largely operates out of the range of the public, so its inner workings are still shrouded in mystery. What surprised the clerks most?
John Spiegel, Munger, Tolles & Olson; Securities Litigation, Business Litigation (Byron White 1976-77): The informality of the court. You could bring a friend to walk around, visit the chambers. … The justices had small staffs, there were only a few guards. It was such a small operation for something so important for our government and society. Now, of course, there’s much more security.
Levin (Ginsburg 2004-05): How cordial the justices were, even though they often split ideologically. Also, that there was a basketball court above the court, commonly called “the highest court in the land.”
Brill (Ginsburg 1996-97): I was surprised that several justices had no women law clerks, or only one out of four. This was in 1996, when women accounted for nearly half of law school graduates. The number of minority law clerks was even lower.
BEHIND THE ROBES
The justices themselves were often surprising.
Haddad (Brennan 1986-87): Justice O’Connor led aerobics classes in the mornings.
Helm (Burger 1983-84): Burger liked to do gardening. We went over one weekend to help him plant some flowers. He liked to drive himself on weekends, but he wasn’t the best driver.
Spiegel (White 1976-77): White was the leading ground gainer in the NFL his rookie year and he was going to Yale. Who does that? When I clerked, White was still in tremendous physical shape. He had a rowing machine in the basement of his house, and he’d watch NFL games and row. He also played basketball with us. He had legs like tree trunks, and giant hands.
Brill (Ginsburg 1996-97): According to Justice Ginsburg’s recent biography, Notorious RBG, the Justice can do 20 push-ups. No knees. No kidding.
Dovel (Scalia 1987-88): Scalia’s phone number was listed in the phone book!
THE HISTORIC CASES
Each term brings cases that affect the future of the country.
Gooding (Blackmun 1970-71): There were several significant school integration cases, and the “Pentagon Papers” case, but one of the most gratifying, and one in which the law clerks played a particularly important role in the outcome, was Clay v. United States—the Muhammad Ali conscientious-objector case. After oral argument, five of the eight participating Justices, including Justice Blackmun, voted to affirm Ali’s conviction. I felt strongly about this case, as did a number of my co-clerks in other chambers, and I wrote several memos to Justice Blackmun recommending reversal. Ultimately, late in the term, after a number of draft opinions had circulated among the justices, the court unanimously reversed Ali’s conviction. I believe the memos I wrote were influential in persuading Justice Blackmun to change his initial vote.
Spiegel (White 1976-77): In the spring of 1976, Gregg v. Georgia and two other cases reinstated imposition of the death penalty under certain conditions, after it had been suspended in 1972. Consequently, when I clerked in the fall of 1976, the capital punishment statutes of many states had to be tested under Gregg v. Georgia. The “stay” application on behalf of Gary Gilmore came to Justice White. The experience persuaded me that I never wanted to be involved in death penalty litigation.
Helm (Burger 1983-84): Keeton v. Hustler Magazine was a personal jurisdiction case regarding whether Hustler could be sued in New Hampshire. The day of the argument four or five limos pulled up, and Larry Flynt emerged in a gold-plated wheelchair. I heard that when he got to the security checkpoint, he or one of his bodyguards was carrying a handgun. In the middle of oral arguments, Flynt pulled open his shirt, revealing a T-shirt that said ‘Fuck the court.’ Burger responded dryly, “Please escort Mr. Flynt from the courtroom.”
Poon (Scalia 2000-01): Bush v. Gore was an all-hands-on-deck, Domino’s-Pizza-and-Dr. Pepper-infused, weeks-long exercise for most if not all of the clerks. I was no exception. I recall at least one night when my three co-clerks and I walked out at 2 a.m. and into a sea of blue lights from police vehicles and barriers surrounding the court.
Levin (Ginsburg 2004-05): U.S. v. Booker was a criminal case that had a major impact on federal sentencing guidelines. Van Orden v. Perry concerned whether a monument of the Ten Commandments displayed at the Texas State Capitol violated the Establishment Clause of the First Amendment.
Klaus (Kennedy 1995-96): Romer v. Evans declared a Colorado amendment unconstitutional; it was the first major case involving the equal protection rights of homosexuals.
Ziffren (Warren 1965-66): Miranda v. Arizona. At the outset of the term, the Chief had us gather all the court cases where someone had confessed, and put together a chart with graphs that had the case name, jurisdiction, salient data, and whether there were issues other than the confession. There were probably several hundred that we charted and categorized. This was before computers; this was all manual. Then the Chief called a special Saturday session and the justices went through them and chose four cases to be argued before the court on the same day. Miranda’s name was first on the list. We received dozens of amicus briefs on the cases. When it came time to draft the decision, the Chief picked himself to write it—and we had a session with him, which was unusual, in which he put together a 10-page outline of what he wanted to see in the decision. Each clerk took a section to write up.
Spending a year in the presence of such justices inevitably influences the way attorneys practice law and live their lives.
Dovel (Scalia 1987-88): I thought I was really smart. Then I’d present something to Scalia, and he’d go, “Hmm, what about this?” His ability to dissect and look for weaknesses was extraordinary and absolutely influences the way I practice the law.
Spiegel (White 1976-77): When you’re an advocate, it’s easy to fall in love with your ideas and arguments. So it’s really helpful to see how those arguments are received in such a setting.
Levin (Ginsburg 2004-05): Ginsburg was an incredibly careful lawyer about facts and getting it right. She was also humane, caring about the effect rulings have on the parties, and on other cases.
Poon (Scalia 2000-01): Justice Scalia really taught me how to parse legal texts closely, and make the plain meaning of that text the lodestar of analyzing a particular legal issue or case. That rigorous approach to the law was complemented by the justice’s time-honored tradition of “booking” a draft opinion: having a wooden cart filled with bound volumes of the United States Reports wheeled into his office, next to his leather sofa, and going through, side-by-side with one of us, each of the case citations in a draft opinion to ensure that what was recited to be the holding of a case was indeed the actual holding of that case, rather than just words on a page written by a judge.
Bussel (O’Connor 1986-87): Justice O’Connor focused on facts and consequences. She set high standards of diligence for herself and for her staff. She cared about getting it right. She wasn’t an ideologue. All of it stuck.
THE RETURN ENGAGEMENT
Almost all of the clerks return in some form—to visit, talk, learn, hear stories. One former clerk found himself making oral arguments before the court; another came back to participate in a funeral.
Haddad (Brennan 1986-87): I argued Kerry v. Din, an immigration case, in February 2015. The issue was whether the due process clause requires the State Department to explain to a U.S. citizen the reason why it has denied a visa to her non-citizen spouse. The Court ruled against my client, Ms. Fauzia Din, by a vote of 5-4. Four Justices dissented, stating that merely citing a statute without explaining why it applies in a given case does not provide the minimum explanation the constitution requires.
[But] it’s the most exhilarating thing you can do as a lawyer. During oral arguments, each justice is trying to get their questions in. Sometimes they’re trying to influence another justice and their questions are more in the nature of assertions. At one point, three justices spoke before there was a question for me.
Poon (Scalia 2000-01): I was honored to participate, along with several other clerks, in standing vigil over Justice Scalia’s casket in the Great Hall of the Supreme Court, and lining the steps of the court when Justice Scalia’s casket was carried out. I also attended his funeral mass, presided over by the justice’s son, Father Scalia, and attended by well over a hundred priests, bishops, cardinals and dignitaries, as well as thousands of attendees. It was a fitting tribute to a life well-lived.
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