‘The Chief Is Eating My Sandwich’
And other memories of the high court from eight former SCOTUS clerks
Published in 2017 Illinois Super Lawyers Magazine on January 13, 2017
There’s nothing quite like being a U.S. Supreme Court law clerk.
During a one-year term, clerks typically work 80-hour weeks, performing duties like reviewing Petitions for Writs of Certiorari and recommending whether a justice should vote to hear a case.
But it isn’t all work. Some clerks have played tennis with Justice William Rehnquist, enrolled in Justice Sandra Day O’Connor’s yoga classes, putted golf balls with Justice Byron “Whizzer” White in his office, and participated in end-of-term skits gently mocking their esteemed bosses. And, once their terms end, many clerks translate the experience into jobs at major firms.
We caught up with eight former SCOTUS clerks, all Chicago attorneys, who clerked in 1974, 2002 and many years in between.
After interviewing, some would-be clerks waited weeks before receiving an acceptance letter; others left the building with the job.
Jim Malysiak, Jenner & Block (Byron White, 1974-75): The Supreme Court is a very impressive building, and the chambers are equally impressive. It had a very old-world feeling. You knew you were in a courtroom—high ceilings, interesting wall work, big windows. That was very intimidating the first time you’d come in. I’d never been to the Supreme Court before, and I’d never met a Supreme Court justice before. And this famous justice, “Whizzer” White—College Hall of Fame football player, Kennedy confidante, number two in the Justice Department to Robert Kennedy—was very down-to-earth. He didn’t come from a wealthy family. He was not pretentious at all. He made it very easy for me.
Andy DeVooght, Loeb & Loeb (William Rehnquist, 2002-03): He introduced himself as “Bill Rehnquist.” It was 30 or 40 minutes of pleasant conversation. He asked if I had a judicial philosophy. And I remember thinking, “Do I make one up right now?” It’s one of those internal monologues that you have that feels like 20 minutes but it’s four seconds. I said, “I try to think about everything my professors taught me, but I don’t really have a judicial philosophy.” And he said, “Of course! You’re 25 years old, how can you have a judicial philosophy?” My co-clerks later joked they had known that was the answer from prior clerks. But I sort of stumbled into it.
Michael Scodro, Jenner & Block (Sandra Day O’Connor, 1998-99): She would have one of her law clerks take you on this terrific one-on-one tour of the building. We got back to chambers after the tour and the justice had done a little more background research—she had spoken to the judge I was then clerking for in the Second Circuit, Judge Cabranes, and had conferred with the other three law clerks who were still in chambers. She said she would very much like to make me an offer to clerk for her. I was over the moon.
Jonathan C. Bunge, Quinn Emanuel Urquhart & Sullivan (Byron White, 1989-90): He asked me a lot of questions. Some of it was law-related, but a lot of it was personal, like what’s a good book that I read recently. I happened to be reading Battle Cry of Freedom. I had called some people I knew before the interview who had worked for him in previous years just to see if they had any suggestions. I had a pretty good answer in my head, which I pretended was entirely off-the-cuff.
Bruce R. Braun, Sidley Austin (William Rehnquist, 1990-91): I applied to all nine justices. I got an interview with the chief, got a job the day after the interview and then withdrew my applications to the others. Getting one of those jobs is like getting hit by lightning.
Brian J. Murray, Jones Day (Antonin Scalia, 2002-03): You go upstairs and the current clerks beat on you for a couple-three hours, and that was painful. “What do you think about X area of the law, what do you think about Y?” Stuff that may be a little obscure, or what the court’s dealing with, but maybe isn’t front and center in your daily life. So I left there wondering if I’d ever get the job. I flew back to Oregon, and I waited by the phone for a couple of weeks and I didn’t hear anything. I got a phone call at 6:30 a.m. Pacific time. The secretary on the other end said, “Please hold for the justice.” This voice comes on the phone: “Brian! This is Justice Scalia. Let’s quit screwing around. Do you want to work for me or not?”
Chief Justice Rehnquist often asked clerks during interviews whether they played tennis. He always joked that he picked three clerks, as opposed to the more common four, because it was easier for doubles.
Braun (Rehnquist, 1990-91): We drove to tennis in my 1981 two-tone Buick Skylark, which was quite an eyesore that cost $500 when I bought it. He was in the front seat. I said to him, “It’s an honor having a dignitary in my car for the first time.” He said, “I hope it’s not the last.”
Malysiak (White 1974-75): We played basketball with [White]. He’d been a star basketball player at Colorado, and he was on the team that went to the NIT [before the NCAA tournament existed]. He had this running set shot. We would kid him about it, but he’d make the shots. We would play two-on-two. The only thing he didn’t like was if you called a foul on him. He played basketball pretty much like a football player. It was a rough game. You didn’t want to be namby-pamby about it.
Linda T. Coberly, Winston & Strawn (Stephen Breyer, 1998-99): Justice O’Connor was, in many ways, the heart of the court. She was hosting and leading aerobics in the court gym and sometimes yoga classes. She would urge female clerks to attend her classes.
Tim Bishop, Mayer Brown (William Brennan, 1988-89): [Brennan] was a very warm individual—not just to his clerks, but to everyone from the mailman to the barber, putting his arms around the shoulders of the other justices as they walked from conferences to chat about the cases. He called everyone “pal” and he meant it. Everyone called him “The Boss,” but he [had a] very un-boss-like demeanor.
Bunge (White, 1989-90): He had a football in his office. I don’t remember him sending me out for passes down the hall or anything like that, but he would pick it up at times. On Friday afternoons, we would play this putting game in our chambers. He had a couple golf clubs, and you had to go under a couch and around a bend and into a cup. He was probably 75 at the time but would always win.
Murray (Scalia, 2002-03): If you had a question on a case, you could just knock on the door. Half the time, he had the prime minister of Italy or somebody famous in there, but if he was alone, he was very accessible.
Coberly (Breyer, 1998-99): I had my first child after my clerkship ended, and I took her to the court. We were in chambers, and the justice’s aide brought tea in a silver tea set and Justice Breyer spent the next 20 minutes trying to find something in his office that was suitable for a toddler to play with. She ended up chewing on a key to some city somewhere that he had received in a formal presentation. It was a big brass key.
Many justices seemed to have photographic memories; they knew every case they’d ever argued and could recite it much faster than clerks could research it.
Bishop (Brennan, 1988-89): Justice Brennan knew way, way more than we did and had been thinking about these issues for a long time. . . . If a clerk had proposed something different, and it didn’t seem to fit with the canon of Brennan’s opinions, we had some pretty intense discussions.
Malysiak (White, 1974-75): He thought dissenting opinions should be very respectful to people on the other side. But he was a very strong-minded person. Once he got to a conclusion, he would hold onto it and defend his position very strongly.
Coberly (Breyer, 1998-99): It became clear to me that I needed to get to the point very, very quickly. [Breyer] would already be onto my next thought before I got there myself.
Almost every justice held a morning meeting to discuss cases. You had to be prepared at a high level every day.
Malysiak (White, 1974-75): We decided, on the merits with opinions, about 180 cases. The last few years, it’s something like 60 [per year]. And there are more clerks now than there were back then. Of course, we didn’t have all the technology; we had typewriters. The court had a printing operation that would print up draft opinions and circulate to other justices.
Scodro (O’Connor, 1998-99): The justice had this uncanny capacity to really cut to the chase. It was just terrific to go in there as this young lawyer and present this extraordinarily complicated issue with 15 moving parts and have the justice say, “Here’s what it boils down to.”
Murray (Scalia, 2002-03): My favorite part was the court orientation—they take you to the library and [say], “Here are the opinions and here are these books.” In the legislative history section, [they] take the Thomas and Scalia clerks and say, “You guys come with us. You don’t need to see this.” They take us to the old-and-rare-books room and say, “This is where you’ll spend your time.” Thomas and Scalia don’t believe in legislative history. They believe in what the Constitution meant when it was enacted, and we have to go back to the 1700s to figure that out.
Malysiak (White, 1974-75): Being a Supreme Court clerk was like a physical endurance test. I probably worked 80 hours a week for 52 straight weeks. Your adrenaline was flowing all the time. You knew this was a once-in-a-lifetime opportunity and you wanted to make the most of it.
Clerks are sworn to secrecy about case discussions during their terms, but they all recall the stress and excitement of a Bush v. Gore or a Grutter v. Bollinger.
DeVooght (Rehnquist, 2002-03): We had the Michigan affirmative-action cases. We had the same-sex sodomy case out of Texas, the three-strikes case out of California, the cross-burning case Virginia v. Black. There were a tremendous number of really hot-button cases. My job was to be [Rehnquist’s] lawyer and get it right.
Bishop (Brennan, 1988-89): We had some pretty intense and highly scrutinized cases—for example, the flag-burning case, Texas v. Johnson, in which Justice Stevens split from the liberals and gave a very impassioned dissent. We had a new justice in Justice Kennedy, so no one knew quite where he was going to come out on issues. There was a sort of tug-of-war between Justice Scalia and Justice Brennan to win the heart of Justice Kennedy at that point.
Malysiak (White, 1974-75): Normally, a new clerk would have three or four months of cert-petition work and bench memos for cases coming up. But that was the year of the Watergate tapes controversy, and the Supreme Court had extended its term through July to decide: Was the president required to turn over the tapes? I was a new clerk working on this momentous case immediately. Once the Supreme Court issued its decision on the Nixon tapes, he resigned within a week or two.
Traditionally, security at the Supreme Court building was robust but unobtrusive.
Braun (Rehnquist, 1990-91): At some point, a homeless guy who was deranged was on the courthouse steps, and he had a knife. The Marshals Service came out and they made a mistake. There was one way to get away, and that was into the building. [The guy] ran up the steps with his knife, and all hell broke loose. All the justices were walking around the building. The chief was walking between chambers, and when the alarm went off, one of the marshals grabbed him and threw him into one of the clerk’s offices and left him there. It was one of Kennedy’s clerks. He sent really funny emails: “The chief is eating my sandwich.” The chief was very good-humored.
Coberly (Breyer, 1998-99): Justice Breyer would actually ride his bike from the chambers to his home, which gave the Capitol Police fits.
Braun (Rehnquist, 1990-91): The chief had a security guard, but he refused to ever use any of his security details. We played tennis once with Sandra Day O’Connor, and we took her Secret Service detail and they stood guard. We played every single week with the chief—and, remember, this was [during] the first Gulf War, Desert Storm; it was a pretty intense time.
Security tightened after 9/11 and the anthrax scare of 2001, of course.
Murray (Scalia, 2002-03): All the security guards are trained to know you on sight, so you don’t even have to show identification; you just walk in and they know who you are—and that didn’t change [after 9/11]. You get a little nervous when you hear airplanes flying over, but other than that, nah, we’re there to do a job.
DeVooght (Rehnquist, 2002-03): My co-clerk Rob and I wanted to get our co-clerk Leah Brannon a birthday present. Leah’s a gardener. We got her some fancy plant in the mail. Like idiots, we’d forgotten that they cooked all the mail because of the anthrax scare. All the mail was put through heightened measures—I don’t know if it was some sort of microwave or what. So when the plant came in a box, it was toast. It looked like a wrinkled old box of Chinese takeout. [Laughs.] But it’s the thought that counts, right?
Discussions could be contentious.
Bishop (Brennan, 1988-89): The clerks were pretty divided. There was a sort of Federalist Society set of clerks and a liberal set of clerks, and they didn’t really agree on anything. It felt like a fairly fraught term, in terms of a lot of anxiety about how the cases would be decided. There’s a pretty wide gulf between Justice Scalia and Justice Brennan, and it’s reflected in the views of their clerks as well.
DeVooght (Rehnquist, 2002-03): I wouldn’t call them rivalries. Everybody has strongly held views. We’d meet for happy hour and you’d have good, spirited discussions about how a case should come out.
It’s an intense year, but the memories are unforgettable.
Murray (Scalia, 2002-03): I’ll never forget my maiden voyage arguing in the Supreme Court. Justice Scalia—I think he knew what he was doing—asked me a question where the only possible answer was “legislative history.” I actually learned this trick from the Solicitor General’s office. I smiled and said, “Well, Your Honor, for those of your colleagues who might find legislative history helpful, the answer might be … ” And he just laughed.
Braun (Rehnquist, 1990-91): At the chief’s funeral, his son joked: “He stressed a work-life balance, but that’s because he could do in an hour what it took other people eight hours to do.”
Murray (Scalia, 2002-03): I made some really good friends that year. There were clerks who were the leftist of the left and the rightest of the right. I met some really smart people. I gained a lot of perspective. I can’t say we always agreed on everything, but by and large we got along. We had some of the most fascinating discussions about anything, from cases to the meaning of life. I miss it.