Eating the Chief's Soup
What James Volling learned from Warren Burger
Published in 2020 Minnesota Super Lawyers magazine
By Trevor Kupfer on July 20, 2020
The 1979 holiday season was a memorable one for James Volling. In November, he interviewed to clerk for Chief Justice Warren E. Burger in the 1980-81 term, and for Christmas, his wife gave him The Brethren by Bob Woodward and Scott Armstrong. Then, on New Year’s Day, he got the clerkship. He was honored and delighted.
“A few weeks go by,” he says, “I’m reading The Brethren, and it was very critical of the chief—very critical of the court, in many respects, and there’s still a lot of speculation about who some of the sources were. So I’m growing concerned. My then-boss, [DC Circuit Court] Judge Roger Robb, and the chief knew each other well, so one day, I ask him, ‘In light of where I’m going to work next year, I’m interested in your perspective.’ He said, ‘Jim, you’ll love it. He’s great to work for and with. It’s going to be a wonderful experience. Don’t believe what you read.’
“I was prepared for goodness knows what, but Judge Robb was absolutely right. He was phenomenal.”
Volling was fortunate to get the job in the first place. Burger hadn’t hired any clerks from the DC Circuit in the decade since he’d left it. Not only did he pick Volling but two of his colleagues as well: John Ale and John Sexton, who went on to become a dean and president at NYU. The fourth clerk that term was named John Coleman. “So the chief would oftentimes ask for me because I was the only one not named John,” Volling says with a laugh.
A big part of his duties involved dividing cert petitions and writing bench memoranda describing the case and arguments, then giving recommendations and highlighting areas of inquiry. “We would also start the opinions,” Volling says. “He would give us outlines and thoughts—sometimes more developed than others—and then we did a draft, he’d make significant revisions, we’d take those and work on them, then kick it back and forth until he was satisfied.
“We were extraordinarily busy,” he continues. A typical workday was 7 a.m. to 10 p.m. “I remember coming to the court in the summer and getting going on the cert pool, thinking, ‘This has taken me all week to do this. How am I going to do the rest of this?’ By the time that term was done, I could do my certs in a morning. … When I came home [after the term], I was so ill. I mean, I was exhausted. I slept almost the entire weekend. I was just run down beyond belief.”
The cases that stand out for him involved frozen Iranian assets; a challenge to the military draft being exclusively male; and CBS, Inc. v. FCC. In the latter case, in which the Carter-Mondale Presidential Committee requested a 30-minute program from each of the three major TV networks and CBS refused, Volling sent the chief a lengthy memo saying he felt troubled about the opinion.
“So we met and talked and he said, ‘Well, I think you’ve got some good points. Write it the other way. It doesn’t matter because I’ve assigned myself the opinion.’ It ended up being 6-3, the other way. I remember the case so distinctly because the law clerks play basketball—in what they call ‘the highest court in the land,’ above the Supreme Court library—and there’s a phone up there that never rings unless a justice is looking for a law clerk. It rang one day when I was up there, and it was the chief looking for me. And he just said, ‘I want you to know we picked up our fifth vote.’”
This was also the year that Potter Stewart decided to retire. “Normally what a justice will do is say, ‘I am retiring. I’m stepping down. But I will remain until my successor is confirmed.’ Potter Stewart said, ‘I’m out of here in early July.’ To be honest, it drove the chief crazy because he had to get the term completed by that point in time, otherwise you were down to eight justices and you might have 4-4 splits and cases might have to be re-argued.”
Burger left an impression thanks to his work ethic and how deeply he cared about the institution and the clerks. He also left an impression because of some of the errands he had Volling run. “I lived in Virginia,” he says, so “I was the guy who was designated to run things back and forth. If the limo was in the shop, I picked him up and brought him to the court. If he wanted me to pick something up and bring it into the court, I would do that.”
Burger was known for the lunches he would cook for his clerks on Saturdays. “He’d love to throw stuff together and make soups,” Volling recalls. “He grew up in a larger family and they were of modest means, growing up through the Depression, so he never threw anything away. Thank God for one of our Secret Service people, because he would clean out the fridge—otherwise we all would have been poisoned.”
Volling says the chief remains somewhat misunderstood. “The press would often pigeonhole him as a reactionary and staunchly right, and he just wasn’t,” he says. “He was a very, very thoughtful pragmatist. It was difficult to put a label on. For instance, he was very much a proponent of gun control. He believed that we were gun nuts in this country, that the Second Amendment had a historical context and it had to be interpreted accordingly. So he would not have been anywhere near as troubled by incursions into the right to bear arms as some of the more modern-day conservatives are.”
Volling’s gratitude for the opportunity has only increased with time.
“You’re part of this significant thing really early in your career, and at least in my case, you come to appreciate it more as you get older,” Volling says. “It’s a truly special experience.”
Return to the Court
Volling hasn’t argued a case before SCOTUS, but he has been on brief and at counsel table. “At the time the chief justice was going to step down to become chair of the Bicentennial Commission, I had been gone six or seven years, but I wanted to be sworn in to the Supreme Court bar. So I went out and you’re very close to the bench, so you can hear what they say to each other. So Justice Rehnquist leaned over and said, ‘That’s Jim Volling. He used to clerk for the chief.’ He knew everyone’s names.”
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