The Collegial Court
Bruce P. Brown on clerking for Chief Justice Warren Burger
Published in 2019 Georgia Super Lawyers magazine
By Andrew Brandt on February 14, 2019
I clerked for the D.C. circuit for Judge [Edward Allen] Tamm. Many Supreme Court law clerks went that route. In terms of numbers, getting the clerkship at the circuit was probably harder. Georgia had never had a clerk on the D.C. circuit.
[Chief Justice Warren Burger] had a clerk selection committee composed of former clerks that divided the applicants and narrowed it down to 40, with each interviewing 10. My understanding is that the chief justice was then given a list of 10 or so potential clerks. Since I was in D.C., just down the street, he called my judge and asked me to come up to talk to him one day. I had no advance notice. Luckily, I was dressed in a suit and tie. I walked up in the snow.
We talked for half an hour. My childhood was all overseas—I had grown up in South Korea because my parents were Presbyterian missionaries—and we talked about that. We didn’t talk about politics, didn’t talk about the law. I think he just wanted to get to know me better. He was exceptionally courteous.
The work itself was so unrelenting you couldn’t get behind or you would be sunk. You work very closely with the other clerks for your own justice, but you also work with all the other clerks. You have to work together to screen the thousands of cert petitions, then you also have to work together in collaborating on opinions and dissents. Over the course of the year, you get to know many of them very well—especially the Brennan clerks, since their chambers were interlocking. Justice Rehnquist and Brennan—although at opposite ends of the ideological spectrum—were unusually engaging and friendly to each other and everyone else.
There’s a great tradition where the other justices take other clerks out to lunch once during the year. When we went to lunch with Sandra Day O’Connor or Chief Justice Burger, it really made a stir, because everybody recognized them. Some of the others could go under the radar, but not the two of them.
Every Saturday, in his chambers, the chief justice would make lunch for his clerks. To the best of my recollection, it was a stew. On those days, we didn’t have to wear a suit, just a sport coat and tie. He would tell stories about his long public service.
Justice Rehnquist loved to play tennis, and would ask me and his other clerks to play tennis with him frequently. His clerks were better than he was. We also had the best time playing basketball at the Supreme Court—they have a basketball court at the top [of the Supreme Court building]. We played three days a week, at the end of the day, then went back to work. None of us were very good but we had a great time.
A few of the more famous cases that came through were Celotex and Batson. A Batson challenge is what you call a strike on racial grounds in a criminal case. Celotex was a major summary judgment case on how a court should evaluate motions for summary judgment. One of the most difficult things clerking for the Supreme Court was dealing with death penalty cases—the consequences.
Clerking fortified my respect for the Supreme Court as an institution. I found that the justices made every effort to be collegial. I think I [expected it] but, looking back, it’s something that was noticeable. Each of them seemed to have a deep respect for the various institutions of government.
The lawyering that we saw was generally spectacular. It was humbling. And several of my co-clerks, for other justices, have distinguished themselves—including Larry Kramer, [former] dean of Stanford Law School, and Pam Karlan, a respected criminal constitutional procedure professor. It’s rewarding to see them succeed and make such terrific contributions to the law.
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