The Everyday Extraordinary

Seven former SCOTUS clerks share stories from the court’s last 70 years

Published in 2020 Washington DC Super Lawyers Magazine

Most interns are lucky to get some experience, a little mentorship and, maybe, a letter of recommendation. 

But a pair of World War II-era binoculars lent for stargazing or an invitation to President John F. Kennedy’s inauguration are offerings reserved for the fortunate few who are selected to be clerks to U.S. Supreme Court justices. 

We spoke with seven D.C. attorneys who worked in the chambers of the high court over the past seven decades—from the 1950s to the 2010s. These are their stories.

The interviews: ‘It felt a little bit like winning the lottery’ 

Kannon K. Shanmugam, Paul, Weiss, Rifkind, Wharton & Garrison (Antonin Scalia, 1999-2000): It was the first time that I ever set foot in the Supreme Court. I remember walking up the steps and just feeling more nervous with every single step. The thought of meeting Justice Scalia felt impossibly intimidating, but in fact he was warm and gregarious and funny—and we had a wonderful conversation.

Julia Penny Clark, Bredhoff & Kaiser (Lewis F. Powell Jr., 1974-75): Powell asked me what my SAT scores had been, which struck me as a little odd because, at that point, of course I had already been to college and law school. I guess they sounded satisfactory to him. 

Miguel A. Estrada, Gibson, Dunn & Crutcher (Anthony Kennedy, 1987-89): One of Kennedy’s former clerks, who was screening potential law clerks, interviewed me. He then excused himself and went to the next room. He called me in, and it turned out he had made a call. On the other end of the line was Justice Kennedy, who offered me a clerkship. 

Alexandra Walsh, Wilkinson Walsh (Stephen Breyer, 2003-04): I had less than 12 hours to prepare. Breyer called me late afternoon and I went in the next morning. In some ways, that was liberating. I said, “Well, we’ll just see how it goes.” It felt a little bit like winning the lottery.

Jerome B. Libin, Eversheds Sutherland (Charles E. Whittaker, 1959-60): We weren’t yet heavily involved in what turned out to be the Vietnam War, but when I interviewed, people were being drafted when they finished school. The Justice needed assurance that there would be no possibility that I be drafted during my clerkship, so I had to make a trip to Springfield, Illinois, to get a letter from the Illinois Selective Service stating that they would not consider me for the draft during the period of my clerkship. 

The duties: ‘The court actually shut off all computers at midnight’

Rakesh N. Kilaru, Wilkinson Walsh (Elena Kagan, 2011-12): We’d often have some pretty fun debates, where Kagan would ask us to advocate for one side or the other and press and push a little bit—like a mini oral argument—to make sure that where she ended up was someplace she felt really comfortable being. 

H. David Rosenbloom, Caplin & Drysdale (Abe Fortas, 1967-68): I had one case I worked on very early in the term; Fortas was just not interested in it, and I wrote the opinion. If a case didn’t really grab him, he would let the clerks run with it—write the opinions and he’d edit them. 

Clark (Powell): One time I was working on a Fourth Amendment opinion … and I asked the library if they could get me a copy of Blackstone’s treatise. Within about an hour came one of the employees rolling a cart, on which was a huge leather-bound book. It was the original book. I felt like I should be wearing white gloves to be opening the pages. 

Estrada (Kennedy): The press of work was so bad that the court actually shut off all computers at midnight to make the law clerks leave. It was virtually the same picture: At 12:05 a.m., at the Maryland Avenue exit, you would see all the law clerks streaming out of the court because they were basically being kicked out.

Shanmugam (Scalia): Executions were often scheduled to take place at 12:01 a.m., well outside business hours. As a result, you’d often have to deal with [death-penalty appeal] applications relatively quickly—much more quickly than you do ordinary cases. The stakes could not be higher. 

Rosenbloom (Fortas): When the court was visited by the chief judge from the highest court in Morocco, the call went out: Can anyone help? The chief justice of Morocco only spoke French. I put up my hand, so I was in [Justice William O.] Douglas’ chambers translating between this chief judge in Morocco and Douglas. Douglas, if he could have killed me on the spot, he would have done it. He was totally dependent on me because he literally couldn’t understand a word this guy was saying, and he didn’t like being in that position one bit.

The cases: ‘They had just come out with the Nixon tapes decision’

Libin (Whittaker): We had a case involving a Russian spy named Rudolf Abel, and whether the FBI’s search of his hotel room was OK or not OK. That drew a big crowd. 

Walsh (Breyer): In the 2003 term, we had the first set of post-9/11 terrorism cases coming: questions that went to the constitutionality of Guantanamo Bay, and the due process rights that are afforded outside of our borders. I also worked on a case challenging the constitutionality of the Pledge of Allegiance, which was really interesting. 

Kilaru (Kagan): We had the first major set of challenges to the Affordable Care Act. This was the big constitutional challenge … that it was a violation of the Commerce Clause and tax power, and the whole bill should be struck down. That was probably the feature case of our term.

Clark (Powell): On my first day, the law clerks all over the building were rather abuzz with excitement because they had just come out with the Nixon tapes decision.

Shanmugam (Scalia): We had some really important separation-of-powers cases. We had a high-profile abortion case, the first partial-birth abortion case. We had the case on whether Congress could replace the Miranda rule with a different rule.

Estrada (Kennedy): There were any number of cases that made a splash at the time. But if you’re 25 and you’re clerking for the Supreme Court, the political compass of the case matters less to you, and you’re a little bit more wide-eyed about the fact that these are all cases of the Supreme Court. Many of them had really excellent briefings and were very well-argued.

The downtime: ‘We would play basketball’

Clark (Powell): There are four open-air courtyards that you don’t see when you’re in the public areas of the court. In each one of them there’s a central fountain, and each courtyard is ringed by lampposts, with bronze turtles holding up the lampposts. I always looked at those turtles and thought, “This is the place where they came up with the phrase, ‘with all deliberate speed,’ in the school-desegregation cases.”

Rosenbloom (Fortas): We would play basketball, and were joined pretty regularly by Justice White—who had been an athlete. Justice White was a real sharp-elbows guy, and playing basketball with this guy, you were taking your life in your hands. He was rough. 

Kilaru (Kagan): If you’re dribbling really loudly, you can apparently hear some of the noise in the courtroom below. The rumor is that, one time, during an argument, one of the retired justices was shooting hoops up there and they had to send a note up to say, “Please don’t play basketball when the court is in session.”

Rosenbloom (Fortas): That was the year that we had the riots in Washington, in the spring of 1968. They were burning down 7th Street, and Fortas called me to come up and babysit his wife. So I went, and Carolyn, his wife, said, ‘I didn’t want you, but Abe wanted you.’ We had a very pleasant time; we watched it all on television and smoked Cuban cigars.

Walsh (Breyer): Every year there’s a campaign that raises charitable contributions among federal employees. The court staff would organize various activities to raise money. One was a pie-eating contest by all of the law clerks. I’m a pretty petite person, but I said I’d do it. I thought, “I’m clearly going to be defeated by these big guys from Scalia’s chamber.” Except, when we arrived for the contest, there was a twist: Instead of how much pie can you eat, the idea was that you had to, with your hands tied behind your back, go through a pile of whipped cream to get a piece of bubble gum. And then the first person to get it and blow a bubble won. And I won. [Justice Breyer] literally jumped out of his seat, and was like, “Bravo!”

Clark (Powell): My husband and I were going to go out in the country and look at the stars one weekend night, and Justice Powell said, “Would you like to borrow my binoculars?” We walked by his apartment, and he handed me this leather case with binoculars. It was stamped, “Lieutenant Colonel Lewis F. Powell.” They were his binoculars from North Africa, [where he served during World War II].

The justices: ‘The man had a 1,000-watt bulb for a brain’

Shanmugam (Scalia): Some of the closest personal relationships were among odd bedfellows. Justice Scalia and Justice Ginsburg were on opposite ends of the court on a lot of issues, but they were very close personal friends. They’d go to the opera together; their families would have dinner together; they’d socialize together off the court. 

Estrada (Kennedy): Oral argument made an impression on me—having them gathered and firing from the bench. Seeing, for example, Justice Scalia firing nonstop from the bench, clearly made an impression on me. It was entertaining and enlightening, but also very instructive. The man had a 1,000-watt bulb for a brain.

Walsh (Breyer): Justice Thomas has this very elaborate bus that he and his wife and his family use to go on road trips around the country. He told us great stories about that. And Justice Souter was well-known for his very careful diet. He really did just eat, like, plain yogurt.

Clark (Powell): Ruth Bader Ginsburg argued two of the cases that term. I have this very distinct recollection of her standing at the podium in a bright red suit, with her hair pulled back in a ponytail with a bright red ribbon—standing utterly straight and arguing in the most coherent, well-stated terms. It was like she was arguing in paragraphs rather than sentences. She was so impressive.

Libin (Whittaker): [Justice Whittaker] was a very good person to work with—a very able lawyer. He had been more of a trial lawyer and a commercial lawyer in his law practice, and I think he had personal reservations about whether he was really the right person to be sitting on the Supreme Court. It took him a while, I think, to get comfortable in the job. I was there in the third year of his tenure, and he was just beginning to really start to feel like he was comfortable on court. 

Rosenbloom (Fortas): It was the middle of the Vietnam War, and Fortas was on a direct-line daily with President Johnson. He encouraged Johnson, at that time, to do some things that I thought were not appropriate—such as bombing Hai Phong. I would have worried more if I thought Johnson paid him any attention.

The reminders: ‘Every major professional decision I make, I talk to her’

Walsh (Breyer): Justice Breyer does this amazing thing at his reunions where he mentions one thing about every single law clerk he ever had, including when he was on the First Circuit. It’s just unbelievable, he does it extemporaneously. It just shows what a brilliant person he is, and how much he cares about his relationships with his clerks.

Libin (Whittaker): I finished my clerkship in the middle of 1960, and I came back to Washington to start work at my firm in January of 1961. Before I was going to start work, [the justice and I] visited for a while and he said, “What are you doing tomorrow?” I said, “Tomorrow’s the inauguration of President Kennedy,” and I was going to watch that on the TV because everything would be closed. He said, “No, you’re not going to do that. You’re going to be here at 10:00 and you’re going to ride over to the Capitol with me and Mrs. Whittaker.” He sat up on the platform with the other dignitaries and important people. I was there to accompany [Mrs. Whittaker], so she had someone to sit with on a bench in the parking lot during the inauguration. 

Kilaru (Kagan): Every major professional decision I make, I talk to [Justice Kagan]. It’s really special to have a network of all the clerks who clerked for her—and her in particular—as a resource to draw on as time goes forward. Sometimes, out of the blue, when something good has happened in my career, she will write a note to say congratulations without me even telling her about it.

Walsh (Breyer): It was inspirational to go to work every day and to walk through those halls. The way I came into work, I always walked past the statue of Chief Justice John Marshall—who was actually the great-uncle of my great-great-great-grandfather. So I would always touch his shoe as I walked by, and think, “OK, help me out here.” 

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