Notes from Justice Souter
Clerking for a SCOTUS judge left a lasting impact on Riyaz Kanji
Published in 2018 Michigan Super Lawyers magazine
By RJ Smith on September 7, 2018
Riyaz Kanji was sitting at his desk in Seattle in 1994, working on a Native American treaty fishing case for Legal Aid, when he received a phone call asking if he’d like to interview for a clerk position. And not just any clerk position—one for Supreme Court Justice David Souter.
More remarkably, Kanji hadn’t applied for the post that year. He had applied a year earlier, but got involved in a major litigation and withdrew. In his hasty explanation, Kanji asked if he could be considered the following year, and assumed that was the end of it. But Souter’s secretary must have flagged the letter and put him in the active file without telling him.
As for the interview? “Justice Souter … has no airs about him,” Kanji says. “You didn’t forget you were talking to a sitting Supreme Court justice, but he created a comfort level to make it a free-flowing discussion. He immediately said a few things that put me at ease.”
Souter looked over Kanji’s transcript from Yale Law School and picked out a few classes to ask about. That led to conversation of issues Kanji cared about, and suddenly the duo was bonding.
The press labeled Souter as reclusive and mild, but that wasn’t Kanji’s impression at all. “In truth, he was one of the most personable people I’ve ever met,” he recalls. “He brings a good sense of humor and was just a wonderful storyteller. Very soon we got a good sense of him, because his stories were important to him and he encouraged us to tell stories about things that were important to us.”
The 1994-95 session included two voting rights cases, a school desegregation case and more. It was the year the court ruled Congress could not establish gun-free zones around schools. There were many 5-4 rulings, and though Kanji won’t talk about any he did or didn’t work on, “unfortunately we were usually in the four. That made it a hard year,” he notes.
“I worked on one of these cases where we were in the dissent and, really, Justice Souter cared deeply about this issue, and he and I spent weeks and weeks going back and forth on his dissent. It was really an intensive experience during the end of the term. It was demanding both because it required a tremendous amount of work and because the dissent was really tough and hard—one of the hardest experiences of my life, probably. This ruling was going to have precedential force and we were on the losing side. It was one of very few occasions in my professional life, while I was holding that slip opinion at my desk, that I cried.”
Throughout the year, Kanji said he and other clerks were struck by how attentive Souter was and the respect he gave them. The impact lasted long after Kanji had gone back to his private practice in Seattle and Ann Arbor, which involves representing Native American tribes in their fight for autonomy and assertion of tribal rights.
“The knowledge I gained on the court has been very helpful to me in working with tribes,” Kanji says. Specifically, it led him to recommend the formation of the Tribal Supreme Court Project to improve the quality of their advocacy before SCOTUS.
Souter’s influence was personal, too. Kanji remembers a conversation at the end of the 2010 term. “Usually he wanted to get out of Washington and up to New Hampshire as fast as possible. He was not fond of Washington,” Kanji says. “He’s packing stuff up and he’s calling me on a time-sensitive basis, because before he leaves he wants to write notes to my two kids. They both had just run in a race and he knew it and he wanted to ask me how they did before he left so that he could finish the notes. This is a common experience for his clerks—the justice showing such care and interest not only in them, but in their families.”
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