‘Part of the History of this Country’

Wayne Drinkwater

Clerk to Chief Justice Warren Burger, 1976-1977

I was doing a federal clerkship in Mississippi when it dawned on me that it wouldn’t cost more than a stamp and an envelope to apply for a Supreme Court clerkship. 

I still don’t know how I got the interview. Time passed and I got a call from the chief justice’s administrative assistant. She said, “If you were offered a clerkship with Chief Justice Warren Burger, would you take it?” I said, “Ma’am, that is not a question I need to think about.” I started the second week of July in 1976.

Before my first official day, I put on my best little suit and drove to the court just so I could make sure I could find the place. I walked in and said to the deputy clerk at the time, “Ma’am, my name is Wayne Drinkwater.” I couldn’t finish my sentence before she said, “You come with me now.” She took me straight into the courtroom and said, “Now you sit here and you watch this.” It happened to be the last day of the preceding term, and the justices were handing down opinions on what was the biggest issue at that time: death penalty cases. The courtroom was completely packed. Most of the justices were reading condensed versions of their opinions and they were very emotional about it. I’ll never forget that.

In our term, the one death penalty case we had that made an impression on me was Gary Gilmore, a vicious murderer in Utah who was the subject of Norman Mailer’s Pulitzer Prize-winning book, The Executioner’s Song. Gilmore decided he would rather be executed than spend the rest of his life in prison, and after he made that decision, a number of people tried to stop the execution. The court did not grant cert; there was no oral argument, no opinion; it was all just a series of motions trying to get the court to enter an order stopping this so it could be appealed. But it never did that, so he was executed. The intensity, I believe, was simply because there had not been an execution in this country since 1966. So people opposed to the death penalty were concerned that if anybody was executed, it would open the floodgates. It was a very intense period. 

I first met the chief justice when he came to Mississippi for a roast of the then-chairman of the Senate Judiciary Committee Jim Eastland, a senator from Mississippi. Later, after I’d been clerking for a while, I was sitting in my office and my phone rang, and the guy said, “I work for Senator Eastland, and the senator is very unhappy with you.” “Sir?” “You’ve been up here for five months and you’ve not come by to pay your respects. The senator wants to see you tomorrow afternoon.” Well, shit. I couldn’t just go over there. I had to tell the chief justice. So I go in his office and say, “Chief, look, I hate to ask this, but would it be all right if I left tomorrow as early as 3:45 to go across to Senator Eastland’s office?” Chief Justice Burger looked at me like I had just come down from Mars and said, “Wayne. Just so you know, Jim Eastland is the chairman of the judiciary committee. I cannot get a typewriter into this building unless he approves it. So you go over there, and I don’t rightly care if you ever come back, but you make him happy.” So I go over there the next day, and Eastland has this big cigar, always exactly in the middle of his mouth, with five or six other guys in there. All these guys were doing at 4 p.m. in the afternoon was consuming adult beverages and socializing. 

Most of the other justices were very informal—you’d see them on the street, they’d ask you about your kids. The chief justice was always courteous, a great boss, and I never had a harsh word or tense exchange of any kind with him, but he was a more formal figure than most of the justices—especially more than Thurgood Marshall. 

Now, the chief justice makes most of the opinion assignments. I was noticing that Marshall was not pleased with some of his opinion assignments. The chief justice was giving him cases in areas he didn’t know very much about. A tradition at the time was for all the clerks from each chamber to take out the other justices for lunch. So we go by and pick up Marshall and it’s clear that the last thing he wants is to be in the company of any of the law clerks for the chief justice. We sit down and he’s so mad and grumpy. The waiter comes by and takes drink orders: iced tea, water, Diet Coke. Marshall says, “I’ll have a martini.” The waiter brings it, Marshall takes a hit of it, and you can tell immediately that life is getting better. He starts to like us more as the glass empties. He says, “Let me know something about you boys. Mr. Drinkwater, where are you from?” I tell him Mississippi, and Marshall—the greatest civil rights lawyer this country has ever produced, and the only member of the court during the time I clerked that would have been a historic figure in American history even had he never been appointed—launches into stories about his days in the Deep South doing civil rights work. Now he’s two martinis in. These stories … I cannot repeat them. I’ll tell you, every conversation in the room stopped the more Marshall talked. 

The work I did there—writing cert memos, bench memos and drafting opinions—taught me how to write rapidly, write efficiently, and turn out work product in a very short period of time. You could be drafting an opinion that ultimately, once revised, could become part of the history of this country, and you’ve got six days to do it.

Luther T. Munford/Butler Snow, Jackson

Clerk to Justice Harry Blackmun, 1978-1979

Fifth Circuit Judge Paul Roney, who had done a personal favor for Justice Blackmun, was my boss at the time and arranged for my interview. It was in 1977, four years after Roe v. Wade. The question Justice Blackmun asked me about it was this: “You may be aware that a few years ago I authored an opinion for the court in a case called Roe v. Wade. Knowing that, would you have any problem working in my chambers?” I told him I would not. He was sincere in making that his criterion. Some of my co-clerks viewed Roe more skeptically than I did but respected his right to make that decision. Justice Blackmun was very meticulous. He worked with his clerks mostly on paper. To make up for it, he had breakfast with us every morning in the court cafeteria.

During my time, the court decided two companion cases, and voted to reverse one and affirm the other. The opinion reaching that result circulated and concluded “for these reasons, number X is reversed and number Y is affirmed.” Justice Blackmun was the only person who noticed that the drafter inadvertently switched the numbers so that the conclusion was backwards. No one else—not a justice, a clerk or the reporter—caught it. That shows how meticulous he was. He also loved baseball and numbers, which I’m sure helped. One morning, a clerk from Justice [Byron] White’s chambers came over to the breakfast table and the conversation turned to baseball. The clerk brought up a particular player and made the statement that he was doing well and had a particular batting average. Justice Blackmun contradicted him, and said no, the number in the morning paper was different. Blackmun was right.

I worked with him on Steelworkers v. Weber, a statutory interpretation case that held that an employer did not violate Title VII by favoring black workers to overcome past discrimination. The Blackmun opinion, which followed Judge [John Minor] Wisdom’s opinion in the 5th Circuit, is widely regarded as being better reasoned than Justice Brennan’s opinion for the court. Congress could overturn the result but has never seriously considered doing so. 

The place just made you feel … reverence. You felt the importance of advocacy, and accuracy in advocacy. The joy of working with competent and respectful people. While the law clerks were not nearly as influential as The Brethren made them out to be, the clerkship led not only to my being hired by clients, but also to opportunities to teach and to serve on appellate rules committees. 

The court has seen change—particularly since Bush v. Gore in 2000. The court has become much more of a place where the justices take sides based on politics. That was much less true in 1978. The people I worked with then, both in and out of Blackmun’s chambers, remain good friends. I can’t imagine a better clerkship.