‘Just a [Supreme] Thrill’

An oral history of local lawyers who clerked in the rarefied chambers of the U.S. Supreme Court, for justices ranging from William O. Douglas to Stephen Breyer

Published in 2016 Northern California Super Lawyers — August 2016

Every year, three or four fortunate young attorneys are selected by each U.S. Supreme Court justice from among scores of applicants for the most highly coveted clerking job in the country. Here, 10 Bay Area attorneys reminisce about landing one of these exclusive gigs.

 

Job interviews are generally intimidating, but when the interviewer is a Supreme Court justice, the experience can be surreal.

Michael Rubin, Appellate, Altshuler Berzon; San Francisco (William J. Brennan Jr., 1980-1981): Justice Brennan was an incredibly warm person who was intently focused on whoever he was talking to. Meeting him was daunting because he was a SCJ, and one I particularly admired. But he was also such a welcoming human being that everyone in his presence immediately relaxed. 

 

Douglas A. Winthrop, Intellectual Property Law; Arnold & Porter; San Francisco (John Paul Stevens, 1992-1993): Justice Stevens was one of the most down-to-earth, warm, engaging people you’d want to meet. When he called to offer me the job, he said, “Doug, this is Justice Stevens. Do you remember that job I talked to you about when you were here?” Like I would forget! 

 

Michael Li-Ming Wong, Criminal Defense: White-Collar; Gibson, Dunn & Crutcher; San Francisco (Ruth Bader Ginsburg, 1995-1996): Ginsburg was more petite and soft-spoken than I expected. She was very kind and had really read my writing sample and asked questions about it. She paid attention and absorbed it in a way I hadn’t expected.

 

Jeffrey L. Bleich, Business Litigation/International; Dentons US; San Francisco (William H. Rehnquist, 1990-1991): I’m a Democrat from Berkeley, so when I got an interview with Rehnquist, I assumed there was a clerical error. But he was very easy to talk to, self-deprecating, funny. A half-hour into it is the first time he mentioned politics. “Tell me, do you tend to agree more with my opinions or Justice Brennan?” I gave a diplomatic answer. Rehnquist said, “Well, I guess you answered my question, because most job applicants would say, ‘I agree with you.’” 

 

Miles F. Ehrlich, Criminal Defense: White-Collar; Ramsey & Ehrlich; Berkeley (Anthony Kennedy, 1993-1994): One day the secretary called and said, “Tony Kennedy is on the line for you,” which is how he always identified himself. 

 

Stacey M. Leyton, Appellate/General Litigation; Altshuler Berzon; San Francisco (Stephen Breyer, 2000-2001): I had majored in history eight years earlier, and Justice Breyer asked me a lot of history questions, which I’d mostly forgotten. He was a funny, warm person. 

 

Kristin Linsley Myles, Business Litigation/International; Munger, Tolles & Olson; San Francisco (Antonin Scalia, 1989-1990): I was already a little bit in awe of Justice Scalia, then he asked me why I wasn’t in the Law Review. I told him that, right in the middle of the writing competition, my cat got hit by a car and it was sort of a shock. He immediately put me at ease and said, “Sometimes life happens, and that’s more important.” 

 

Paul W. Cane Jr., Employment & Labor/Appellate; Paul Hastings LLP; San Francisco (Lewis F. Powell Jr., 1980-1981): A true Southern gentleman with impeccable manners and courtesy to everyone. I had been a competitive swimmer in college, and Powell asked me a lot of questions about athletes and who I’d raced against. I was expecting searing questions on constitutional law. 

 

Eugene Paige, Intellectual Property Litigation; Keker & Van Nest; San Francisco (Anthony Kennedy, 2000-2001): Justice Kennedy was the most decent person you ever met. 

 

Standard duties included reviewing cert petitions, drawing up arguments on cases, and being available to review last-minute death-row appeals. But the justices had their own ways of doing things.

Myles (Scalia): We’d have a roster of cases for next session that the court had accepted, and everyone would take turns picking. You’d work up the case and tentatively reach a recommendation. We’d talk about it with clerks in other chambers. Scalia said, “It’s more helpful to me if you make friends with clerks in other chambers and have discussions with clerks with different opinions.” 

 

Rubin (Brennan): After the first summer, we stopped reviewing cert petitions, because Brennan had been on the court so long, he knew what he was looking for and felt he could more efficiently deal with them himself. He thought our energies could be better utilized working on the actual opinions. 

 

Winthrop (Stevens): We clerks reviewed all the cert petitions that came in, recommended cases and discussed them. On opinions, Stevens would do the first draft; he said, “That’s how I make sure I fully understand it.” Then he’d give it to us and say, “Now you take over and make it better.”

 

Myles (Scalia): He encouraged and wanted to have lively debates. He selected clerks who disagreed with him to have a diversity of viewpoints. The only thing he wouldn’t want is someone with a completely different way of thinking about the law. You’re trying to help Scalia reach a decision, so you wouldn’t use a method of analysis that he wouldn’t employ, like legislative history. If you did, he’d say, “Get out of here with that.” 

 

Wong (Ginsburg): People would ask what the workload was like, and I’d say, “It’s like drinking champagne from a fire hydrant.” Every issue, every case, is fascinating, but there was just so much work. 

 

Bleich (Rehnquist): Clerks are responsible for the death watch: One clerk would be designated to see the last-minute appeals and petitions. You’d have to review them very quickly but thoroughly, and make recommendations to the court, knowing that someone’s life hung in the balance.

 

Carl J. (Kim) Seneker II, Real Estate; Morrison & Foerster; San Francisco (William O. Douglas, 1967-1968): I recall being assigned to draft one of his opinions where I proceeded to take a different approach than he had expressed to me. I was heavily chided for not conforming the opinion to his precise reasoning. After threatening to take back the drafting chore himself—and essentially telling me that I should not expect to be assigned any further opinion-drafting responsibilities—he relented and agreed to let me try my hand at revising the opinion draft, which I was able to do to his satisfaction. I did not make the same mistake again.

 

It’s a tradition for each justice’s clerks to collectively lunch with each of the other eight justices. 

Myles (Scalia): It was Justice Brennan’s last term. He was such a warm, funny, friendly, delightful man. For lunch he wanted to go to Hogs on the Hill—a ribs place. His wife, Mary, and his secretary both told him he wasn’t allowed to eat that kind of food because of his health, so he said, “Don’t tell Mary!” and covered his shirt with all these napkins—because he fretted that, if he spilled anything, “She’ll have my head!” Of course, a big glop of sauce got right onto his tie, and he was like, “Oh, no!” He was hilarious. And he and Justice Scalia got along famously. 

 

Cane (Powell): Before Rehnquist became chief justice, one clerk—probably one of Brennan’s who did not like Rehnquist’s politics—asked him at lunch, “Justice Rehnquist, have you ever considered going into another line of work?” Rehnquist was so disarmingly charming, he said, “You know what? I have. When I was in the military I was a weather forecaster, and I would like to do that here in Washington, D.C., because I know I can do a better job than they do right now.” 

 

Wong (Ginsburg): After we had lunch with the late Chief Justice Rehnquist, whenever we passed in the hall, he would always remember me and my favorite football team. He’d say, “Tough game last night.” 

 

Ehrlich (Kennedy): Justice Scalia took us out to A.V. Ristorante. He was exactly as he is when you see him on the court: very personable, very aggressive, taking us all on, up for a debate. I remember it was fun, but I was very disturbed about some of the positions he was spouting.

 

One of the perks of being a clerk is being a witness to historically significant decisions.

Myles (Scalia): Texas v. Johnson, which struck down the state law prohibiting desecrating—in this case, burning—the United States flag as an act of protest. [Scalia was in the 5-4 majority]. 

 

Leyton (Breyer): Bush v. Gore. [Laughs] It’s a decision that most people look at as being transparently political, a time when all eyes were on the court. Many of us clerks strongly disagreed with the outcome. 

 

Paige (Kennedy): All Supreme Court decisions are big, but Bush v. Gore was indeed a big decision. From the clerks’ perspective, I didn’t see the justices treating the case very differently.

 

What would surprise the public about the court?

Seneker (Douglas): The court has only limited powers, jurisdiction and authority, and is not in a position to issue or create sweeping rules or legal principles whenever it chooses. Decisions are limited to the cases that are brought before it and that it decides to hear. 

 

Paige (Kennedy): Denials of cert petitions are portrayed in the media as “The Supreme Court let this stand”—but it doesn’t mean the court decided it was right, or that it was a merits-based decision. They just decided that it’s not the right case to take up on this issue.

 

Winthrop (Stevens): It’s been written that it operates as nine separate law firms, and I think that’s accurate. 

 

Cane (Powell): Justice Powell rarely asked a question; and when he did, it would be at the very end, to give the side he was inclined to reject a last chance. But nobody ever accused him of being a bad justice. I think Justice Thomas has been getting a bad rap. To me, the quality of a justice relates to the opinions he/she writes, not to the quality of [the questions], or even if he asks questions. 

 

Like all workers, the justices needed their down time.

Bleich (Rehnquist): Rehnquist could get bored on the bench during long legal arguments. He was a trivia buff, so during a really dull argument, I sent him a note asking which was the windiest state and where was the exact center of the U.S. He studies it, writes something on a piece of paper, has it passed to me. I was thinking that the lawyer arguing in front of the court is thinking, “I must have made a really good point!” 

 

Seneker (Douglas): Justice Douglas [had a] penchant, on occasion, for seemingly taking voluminous notes. One would have assumed that he was actively engrossed in writing down his thoughts about the arguments being presented … but then he would suddenly lift an envelope from the bench, stuff what he had been writing into the envelope and lick it closed. Whether the contents of the envelope related to the particular case or another item of business was not known. Justice Douglas was capable of doing more than one thing well at a time.

 

Wong (Ginsburg): While Ginsburg’s husband, Marty, was alive, they’d have the clerks over for dinner. Marty was very jovial and a back-slapper and would make fun of her, and she would just take it. He was an amazing cook and he told stories about how she was a terrible cook and it was decades since she’d been banned from the kitchen. 

 

Ehrlich (Kennedy): Justice Kennedy came up with this idea to stage a mock trial at the Supreme Court that was called The Trial of Hamlet—whether Hamlet should be held criminally responsible for the murder of Polonius. Kennedy was the presiding judge. Ted Olson was an attorney for one side; Abbe Lowell for the other. Justices Ginsburg and O’Connor were on the jury. I got to be the bailiff. Thirteen years later, after I’d opened my firm, my secretary says, “Tony Kennedy is on the line.” He re-did the Hamlet trial at the Kennedy Center and promoted me from bailiff to prosecutor. Because [the jury was] split, [Kennedy] told the actor playing Hamlet: ‘You’re now remanded to the pages of history.’

 

If the general public knows the justices at all, it’s often as formal jurists issuing opinions from up high. But when the robes were off, they were—gasp!—human beings.

Leyton (Breyer): Breyer was kind of absent-minded. He also meditated, and often biked to work.

 

Winthrop (Stevens): Stevens would tell us stories about being at the pool at his condo, and people only knew him as John Stevens and were shocked to learn years later who he was. He had a dentist ask him, “Do you do a lot of weddings? Because I notice you’re a justice.” They thought he was a justice of the peace. Another [time], he was talking to someone on the steps of the SCOTUS building and tourists asked him to move out of the way so they could take pictures. 

 

Cane (Powell): I played basketball with future SCOTUS Chief John Roberts. I thought back then he was more suited for the ABA than the NBA. The court was situated above the SCOTUS courtroom, so the joke is that it was literally “the highest court in the land.”

 

Seneker (Douglas): Both I and my co-clerk did have some opportunities to socialize with Justice Douglas outside the work environment, and it is fair to say that he was a different person. He took us to lunch several times, and also invited us and our wives to a few social gatherings. We also accompanied him during his annual hike along the C&O Canal. In those settings, he could be both amiable and very hospitable.  

 

Bleich (Rehnquist): We’d drive to tennis, and he’d turn on music and sing full voice: show tune-y kind of music. Also, he’d been a meteorologist in the military, so he was fascinated with weather. You’d mention it’s a little cold out, and he’d say how the lows coming up from Canada were mixing with some other front and producing this weather pattern …

 

Cane (Powell): Justice Powell never aspired to the job, and turned it down on two occasions before Nixon personally asked and Powell accepted because “when the president asks you to do something, you do it.” Years later, a Washington Redskins player asked him, “Which did you like better— being a lawyer or a Supreme Court justice?” Powell answered, “Would you rather be a player or a referee?”

 

Issuing wildly divided opinions with sometimes acrimonious dissents has become par for the course. But the justices had to work together year after year.

Cane (Powell): The tradition is that, just before the court meets in conference, each justice shakes hands with every other justice to underscore that whatever substantive disagreements there may be, they are colleagues first.

 

Wong (Ginsburg): The newspapers emphasize the controversial decisions, the 5-4 decisions. Many people don’t realize that many decisions are decided unanimously and, as the relationship between Scalia and Ginsburg underscored, the court is a collegial place. The appointment of judges is political, but once they’re on the bench, it’s not political and they try to get it right. 

 

Bleich (Rehnquist): The justices got along well. When Marshall announced he was stepping down, the chief tried to talk him out of it. Justice O’Connor started crying.

 

Apparently, clerking for a SCOTUS justice is a little like eating at Olive Garden: When you’re there, you’re family. 

Myles (Scalia): We had a clerks’ reunion every year. I only missed one, when my daughter was born the day of the reunion. And sometimes I’d be back other times. Scalia took my kids into his chamber to look around; I got to know his family very well. Sometimes we’d talk on the phone, if I had something going on in my life of significance.

 

Rubin (Brennan): Brennan was opposed to the death penalty, and [years later,] after I got a death-penalty case overturned, he sent me a letter that I still have on my wall commending me for it. He and his wife, when they were in the Bay area, would often visit his clerks at our homes.

 

Winthrop (Stevens): When Justice Stevens retired, we clerks created the John Paul Stevens Fellowship Foundation as a present for him, to provide summer internships in the public interest for law students. 

 

Cane (Powell): Every year we’d get together. One year, Powell announced his retirement on a Wednesday and our reunion was that Saturday. During those intermittent days, he received all this public praise. He told me, “It’s fantastic. It’s like being able to read your obituary before you’re dead.”

 

Wong (Ginsburg): When each of my sons was born, Ginsburg wrote them a handwritten letter welcoming them into the world. She has tiny T-shirts printed with the Supreme Court logo at the top and the initials “RBG” and at the bottom “Grand Clerk.” She refers to the children as her “grand-clerks.” I mean, who does that?

 


 

Supremely Unexpected

The former clerks remember what surprised them about the hallowed halls By Stan Sinberg

What with the long robes, relatively low public profiles and ban on broadcast cameras in the courtroom, SCOTUS retains an air of mystery—even for the clerks who spend a year serving the justices. 

“The justices actually deliberated very little,” recalls Kristin Myles, who clerked for Justice Antonin Scalia. “You imagine them sitting in this room and really hashing it out. But there’s mostly these very formal notes: ‘Please join me in this opinion.’”

Miles Ehrlich was struck by the dearth of discussion among the justices over various cases. “Scalia said that he wished there was more back-and-forth, but that it was Justice Felix Frankfurter’s fault, because Frankfurter would lecture everybody,” says Ehrlich, who clerked for Justice Anthony Kennedy. “When William O. Douglas joined, Frankfurter offered to give him a tutorial on constitutional law, and that was seen by the other justices as condescending. So the discussions were mostly curtailed. Rehnquist was all business. He would say, ‘This isn’t a debating society. How are you voting? Tell us why.’”

As for Michael Li-Ming Wong, who clerked for Justice Ruth Bader Ginsburg, something more tangible had him scratching his head: “I was giving a friend a private tour of the courtroom, and we went up to the bench and I saw underneath each justice’s chair was a spittoon,” he recalls. “I never saw them used. There must be some tradition behind it, but I never asked.”

 


 

Moments to Remember

A few unforgettable accounts of the nation’s highest courtBy Stan Sinberg

For the lucky clerks who spend a year serving a Supreme Court justice, the experience provides many highlights—as well as the occasional low-light.

Michael Rubin, who clerked for Justice William J. Brennan Jr., was struck by his justice’s brainpower. “Justice Brennan had an encyclopedic memory for cases,” Rubin recalls. “We’d sit in morning meetings and, as we’d discuss cases, he’d often turn around, pluck a volume from the U.S. Reports in his library; turn to the page: He remembered in extraordinary detail the cases the court had decided—and he’d already had 20 years on the court.” 

Justice William O. Douglas, for whom Carl J. “Kim” Seneker II clerked, was known for his no-nonsense style. “One of the more interesting—and at times frustrating—aspects of working as a Douglas clerk was that, at least during my era, he was not pleased if he happened to see you attending one of the oral arguments,” Seneker recalls. “A clerk who made that mistake, and who was spotted by Justice Douglas, could expect to receive a note from the bench saying something along the following lines: ‘Since I see that you apparently have nothing else to do, please review the 14th Amendment cases that the court has heard in the past two years …  and summarize the decisions. WOD.’ Whenever my co-clerk or I wanted to attend an oral argument, we carefully hid behind one of the courtroom pillars, sometimes referred to by us as the Douglas Pillar.”

Just watching the process was momentous for Stacey Leyton, who clerked for Stephen Breyer. “I loved learning how these decisions are made,” she says. “It gives you great perspective as a lawyer later on, when you’re trying to persuade a court whether or not to take a case.”

And for Jeffrey Bleich, former clerk to Justice William H. Rehnquist, it’s hard to pick any one thing: “Every day was just a thrill. Walking up those marble steps, having the opportunity to engage with some of the best law minds in the country, having a bird’s-eye view of the issues coming up from the lower courts. And you’re in the Supreme Court.”

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