Oral History: 13 Ways of Looking at a Black Robe
Former clerks to the U.S. Supreme Court talk about their experiences at the center of American law
Published in 2016 New York Metro Super Lawyers magazine
By Steve Knopper on September 21, 2016
They were there for some of the biggest cases in the last 50 years:
Swann v. Charlotte-Mecklenburg Board of Education, U.S. v. Nixon. They were there on 9/11.
They learned firsthand about Justice Antonin Scalia’s decades-long friendship with his philosophical rival, Justice Ruth Bader Ginsburg, and they sat at the feet of Justice Marshall as he regaled them with stories about civil rights in the Deep South.
And their justices were there for them, too: when a parent died, when a letter of recommendation needed to be written, when they were hungry for homemade cake.
We talked with 13 former clerks, all on our New York Super Lawyers list, who worked on the high court between 1967 and 2010. These are their stories.
FIRST IMPRESSIONS: Meeting the Justices
Peter L. Zimroth, Arnold & Porter (Abe Fortas, 1967-68): I met Justice Fortas when I was being inducted as the editor-in-chief of the Yale Law Journal. He was the speaker at the dinner. I picked him up at the train station, and all I remember was that he didn’t have his seat belt buckled, and I said I wasn’t going to drive the car unless he had his seat belt buckled. So he buckled his seat belt. There was no entourage, that’s for sure.
Gregory L. Diskant, Patterson Belknap Webb & Tyler (Thurgood Marshall, 1975-76): I clerked for J. Skelly Wright on the D.C. Circuit. He was the judge in New Orleans who desegregated the schools. If you know the famous Norman Rockwell painting with the little black girl in a white dress walking to school surrounded by beefy U.S. marshals, Skelly did that. Thurgood Marshall was the lawyer in that case. … Basically, Thurgood greatly respected Skelly’s views, so he hired me.
E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe (William J. Brennan Jr., 1987-88): When I was a law student, I worried I was a mush-minded liberal, and I wanted to see if I could really stand up for what I believed in. Then-Judge Scalia [of the D.C. Circuit Court] was very clear that “if I hire you, you’re my token liberal.” … He also enjoyed the blood sport: knock-down, drag-out arguments. You would get back things like: “That’s the dumbest thing I’ve ever heard. Where did you go to law school again?” … [Later], he used to joke that I’d get the bends going from him to Brennan.
Andrew J. Nussbaum, Wachtell, Lipton, Rosen & Katz (Antonin Scalia, 1992-93): I clerked for Justice Ruth Bader Ginsburg the year before, when she was still a judge. As far as I know, I’m the only one who clerked for both Ginsburg and Scalia. My view of clerking was, if one could get a job with the opportunity to work for a year with a distinguished judge, why wouldn’t you? … I know that before Scalia offered me the job, he called [Ginsburg] and asked her what she thought of me.
Robert J. Giuffra Jr., Sullivan & Cromwell (William Rehnquist, 1988-89): The Rehnquist interview process was kind of like going to visit the Wizard of Oz: You had to go through a lot of doors to get to where his personal chambers were; finally, you go to the last door, and the secretary brings you in, and there he is. The interview was probably 20 minutes. He asked me where I was from, took out a map, looked at my hometown. Asked if I played tennis, asked if I had any questions. I said, “No, it’d be an honor to clerk for you; I’ve always admired you.” I thought I’d blown the interview. Years later, I was visiting him at his house at Greensboro, Vermont. I said, “Chief, I thought I’d blown the interview.” He looked at me, laughed, and said, “Well, that was the right answer. What were you supposed to do, ask me about the pay, or how I assigned the work to my clerks?” … He was a very down-to-earth guy who didn’t like arrogant people.
THE JUSTICES: They’re just like you and me—kinda sorta.
Diskant (Marshall, 1975-76): In the clerks’ room, the three of us shared an office and there were three desks and a big overstuffed, weathered chair. Maybe once a day, late afternoon, Marshall would come in. He was a big man, over six feet tall and very heavy, and in those days he was a chain smoker, and he would plop himself down in his chair and tell stories. Clerks from other chambers would come down and sit on the floor and listen. They [were about] his father, a Pullman porter; law school; his early days practicing law in Baltimore for the Baltimore Afro-American. He told stories about his life being in danger in the South, about defending blacks accused of rape or violence.
Lewis J. Liman, Cleary Gottlieb Steen & Hamilton (John Paul Stevens, 1988-89): Stevens would come into the clerks’ room before argument and sit in a comfortable chair and we would all talk about the legal issues. He would tell us what thoughts he had. He would bounce ideas off of us and expected us to respond.
Zimroth (Fortas, 1967-68): Often, Fortas would just walk into our office and talk to one or the other of us. There were no group meetings. You didn’t have to make an appointment to see him.
Rosenkranz (Brennan, 1987-88): Justice Brennan would do this thing that we used to refer to as “taking your pulse”: While speaking with you, he would hold onto your wrist and make you feel like you were the most important person in the world.
Vincent Levy, Holwell Shuster & Goldberg (Ruth Bader Ginsburg, 2009-10): Ginsburg would have celebrations for clerks’ birthdays. Her husband [Georgetown law professor Martin Ginsburg] passed away the year I clerked. At the beginning of my term he would bake cakes for the law clerks on their birthdays. Every cake he made was delicious.
Randall D. Guynn, Davis Polk & Wardwell (William Rehnquist, 1985-86): It became a myth that you needed to be a good tennis player to get a job with Justice Rehnquist. That was a misinterpretation. He was looking for one player who could be his partner, and then two players who were not very good, for doubles. And I fell into that [latter] category. No one tried to kill him, although every clerk will tell a story of accidentally hitting a ball right at him, hard. He was actually good about that.
Nussbaum (Scalia, 1992-93): Scalia was a good social tennis player. His knees were not as good as they may have once been. He had been a big squash player. His best shot was what he called “the Scalia Drop Shot.” He would enjoy seeing you race to the net.
Levy (Ginsburg, 2009-10): She’s aware that there’s a Notorious R.B.G. book. There’s a bobblehead, too. I think she’s aware of those things.
Guynn (Rehnquist, 1985-86): It was not uncommon for somebody to stop Rehnquist and ask him to take their picture in front of the Supreme Court building—not knowing this was actually a justice on the Supreme Court taking their picture.
THE TERM: The hours are long, often from 8 a.m. to 11 p.m. daily.
Evan Davis, Cleary Gottlieb Steen & Hamilton (Potter Stewart, 1970-71): I began the job in August, and Justice Stewart was in New Hampshire, where he spent his summers. We would write petition memos and send them by mail to him in New Hampshire.
Rosenkranz (Brennan, 1987-88): Brennan didn’t want his law clerks reading cert petitions like all the other law clerks did. He did the cert petitions himself. He wanted his law clerks out in the field, among other law clerks, gathering intelligence about what was on their minds and the minds of their bosses. It is common wisdom that there was no one like Justice Brennan at getting to five [votes]. Justice Brennan used to tell his law clerks, over and over, “You can accomplish anything in this courthouse if you can count to five.” And he would hold up his fingers on one hand and wiggle them.
Nussbaum (Scalia, 1992-93): To have a 15-minute conversation with Scalia on substance [involved] many, many days of work. You always knew it was not going to take him particularly long to get up to speed.
Davis (Stewart, 1970-71): Stewart would say sometimes “affirm,” sometimes “reverse,” sometimes “affirm question-mark,” sometimes “reverse question-mark.” The most we could do [in case of a disagreement] is convince him to put a question mark beside something. That was considered a big success.
Guynn (Rehnquist, 1985-86): Rehnquist was very particular: no footnotes unless absolutely necessary, and [opinions] should be less than 20 pages double-spaced.
Levy (Ginsburg, 2009-10): October comes and the first cases are heard. More and more work just piles on through the end. It becomes busier and busier, and then you leave.
THE BIG CASES AND EVENTS: Former clerks are reluctant to talk about specific cases they worked on, or the justices’ behind-the-scenes opinions; but the historic moments were unforgettable.
Davis (Stewart, 1970-71): The year I clerked, there were a number of important cases: the Pentagon Papers; the Muhammad Ali case; Swann v. Charlotte-Mecklenburg Board of Education, an important busing case; and Younger v. Harris, an important federal-courts jurisdictional case. I can’t think of a case where I was uncomfortable with what Justice Stewart was proposing to do.
Ira M. Feinberg, Hogan Lovells (Thurgood Marshall, 1973-74): The last case of my year came up quite suddenly: the Court wound up holding oral arguments in July, which was very unusual. The case was U.S. v. Richard M. Nixon, where the Supreme Court determined he had to turn over these tape recordings, which he did not want to turn over, and which led to his resignation about three weeks later. I remember Justice Marshall coming back from conference and telling us what the result was going to be.
Rosenkranz (Brennan 1987-88): The year before me was Bowers v. Hardwick, the sodomy case, which got overturned a bunch of years later. There was a protest on the steps of the Supreme Court, the “out and outraged” protest, where thousands of people came to the Supreme Court from all over the country; several hundred [were] arrested. I was talking to Brennan about it and I could tell—he was 81 years old, a pretty devout Irish-Catholic—that he could not for the life of him figure out what two men were doing together in bed. He didn’t quite understand the mechanics. But what he understood was human relations, and intimacy, and the power of love, and the importance of those relationships in living a full life.
Alexander J. Willscher, Sullivan & Cromwell (Anthony M. Kennedy, 2001-02): The main thing that happened was 9/11. I remember there was a judicial conference there—a lot of judges from around the country being hosted for an event that day. Then the news came on about the first tower. They evacuated the whole Capitol Hill area, including the Supreme Court. The clerks convened at other people’s apartments and watched in horror. It was full-on lockdown mode. There are court security officers, and their primary responsibility was to make sure the justices were safe, and then to get everyone else out of the building. [A few months later] there was an anthrax threat. The entire court relocated to the D.C. Circuit for at least one round of oral arguments. It was like going on the road. There were at least three justices and their clerks sharing one D.C. Circuit judge’s chambers. We were all in close quarters. They had to do the scrubbing of the building before it was safe to go back in.
COEXISTENCE: Some clerks recall rivalries between justices and clerks; others say mutual admiration among the justices transcends politics.
Liman (Stevens, 1988-89): The first term that I was there was a very contentious term. There’s a book about it, Closed Chambers, by Edward Lazarus. It was Justice Kennedy’s second term on the court, a time when the court was reconsidering a lot of doctrines in civil rights law, criminal procedure, the death penalty, abortion and the First Amendment. It was the beginning of the period when the court starts to move toward the right, and that led to tension. There were definitely some clerks who had very tense relationships with other clerks. I personally didn’t.
Samuel Spital, Holland & Knight (John Paul Stevens, 2005-06): Just from reading the opinions, people might not realize how much collegiality there is on the Supreme Court. They were very respectful of each other behind closed doors.
Guynn (Rehnquist, 1985-86): We had a basketball tournament. My recollection is the Rehnquist clerks won. The biggest mistake is we should have bought a trophy. If we’d been willing to spend $50, when we got back 10 years later, we’d see our names on the top with 10 other chambers. Unfortunately, we were too cheap to do that, so it never happened.
AFTERMATH: Now about that letter of recommendation …
Diskant (Marshall, 1975-76): Being a Supreme Court clerk makes you highly employable.
Feinberg (Marshall, 1973-74): Now law clerks coming off the Supreme Court are even more in demand, and they’re given huge signing bonuses to join a law firm. That wasn’t the practice back then. But I certainly had a wealth of opportunities.
Nussbaum (Scalia, 1992-93): I needed an employment letter to rent an apartment in New York. I was two years out of law school, and the application required that you had to have a letter of reference if you hadn’t had the same job for five years. So I had to call up Scalia: “Could you please send me a letter confirming I worked for you?” Of course, he got a big chuckle out of that. … [The landlords] thought it was a joke. It did take one or two follow-ups for them to believe that, yes, in fact, I wasn’t being sarcastic.
Willscher (Kennedy, 2001-02): I went on to work in the U.S. Attorney’s Office. The U.S. attorney in New York had to call him up and ask about me. I just remember the U.S. attorney thinking it was really cool that he got to talk to Justice Kennedy.
Arthur S. Long, Gibson, Dunn & Crutcher (Clarence Thomas: 1997-98): My mother was a lawyer here in New York beginning in 1957, and was still practicing the day she died [in 2001]. I had a lot of people say things to me [when that happened], but what I most remember was my fairly long conversation with Justice Thomas when he called. … He said, “Look, your mother had a great life, and now you need to make your life and live it in her honor.”
THE FRIENDSHIPS: As my good friend Justice John Paul Stevens says …
Giuffra (Rehnquist, 1988-89): I remember going to the Supreme Court building and it was a young guy waiting for an interview with, like, Justice Breyer. I guess this guy probably thought I was interviewing for a job—although I don’t know if I looked that young. Then I went to see the Chief [Rehnquist], who was obviously ill. I recounted the story about the applicant. He thought that was funny. He looked at me and goes, “Hope you told him you got the job.” That was six months before he died.
Nussbaum (Scalia, 1992-93): We were booked to have dinner a few weeks after Scalia died, with him and his wife.
Willscher (Kennedy, 2001-02): It’s an amazing network of friends and professional colleagues. Of the 35 clerks my year, right now there’s a judge in the Fifth Circuit Court of Appeals, a judge in the Ninth Circuit, a bunch of district judges and people who’ve gone on in various capacities in senior levels of the government.
Rosenkranz (Brennan, 1987-88): About three years after I clerked, The New York Times or The Washington Post wrote an article about how people I clerked with were already vocal about positioning themselves for the Supreme Court. This was the post-Bork era, so you [had] to live your life in a particular way. I remember reading that article and thinking, “First, I doubt that I’m qualified. Second, I’m not prepared to live the next 25 years of my life in order to be confirmable.” I just decided I’m going to have a lot of fun for those 25 years, and the notion that I could ever get it, assuming I was qualified, would be like lightning striking. The funny part of that story—I clerked with Justice [Elena] Kagan. I don’t know if she was in that article. But one of us made it.
37: Number of former SCOTUS clerks on 2016 New York list
William J. Brennan . . . 6
Thurgood Marshall . . . 5
William Rehnquist . . . 4
Ruth Bader Ginsburg . . . 3
By Law Firm
Davis Polk & Wardwell . . . 4
Sullivan & Cromwell . . . 4
Cleary Gottlieb Steen & Hamilton . . . 4
By Practice Area
Criminal Defense: White Collar . . . 7
Business Litigation . . . 6
Appellate . . . 4
By Law School
Harvard . . . 12
Columbia . . . 8
Univ. of Chicago . . . 4
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