THE SUPREME COURT - THEN AND NOW.

Author:Newman, Jon O.
 
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The modem Supreme Court differs in significant ways from the Court I knew more than sixty years ago as senior law clerk to Chief Justice Earl Warren during the 1957 Term. (1) I propose to compare the 1957 Court to the 2014 Court, focusing not on doctrinal shifts but on institutional matters and internal practices. I select 2014 to precede the death of Justice Scalia in 2015, which left an eight-member Court during half of that year and most of 2016.

I turn first to the Justices' law clerks. In 1957, most of the clerks came to the Court right after graduating from law school.

Only three (two for Justice Harlan, one for Chief Justice Warren) had previously clerked for a year at a federal court of appeals. In 2014, all the law clerks had previously worked for a court of appeals judge.

The first law clerk came to the Court in 1882, but the practice was not institutionalized until several years later. (2) Justices Holmes and Brandeis were the first to hire a recent law school graduate as the one law clerk each was then allotted.

Law clerks, then and now, assist a Supreme Court Justice in three general ways, but some aspects of their work have changed. The clerks write brief memos on the thousands of certiorari (cert.) petitions asking the Court to review decisions of the thirteen federal courts of appeals and the fifty state supreme courts. Law clerks also write long memos analyzing each case that the Court has accepted for argument. Sometimes law clerks draft opinions and usually edit drafts that their Justice has prepared and give suggestions for improving draft opinions from other Justices. Law clerks serve for one year, although in the Court's early years, some served for several years, a few for the lifetime of their Justice. (3)

That first task of writing memos on cert, petitions has changed. In 1957, the clerks in the chambers of each Justice (except Justice Frankfurter, who read all petitions himself (4) ) wrote cert, memos for their Justice. By 2014, a so-called "cert. pool" had been formed. (5) The cert, petitions are divided among the law clerks for all the Justices participating in the pool, and each clerk writes for the Justices in the pool a memo on his or her assigned petitions. The cert, pool started in 1972 with five Justices participating. (6) In some years as many as eight Justices were in the pool.

I think the cert, pool is an unfortunate development. The Justices are better served when each receives a cert, memo prepared by his or her own law clerks. When nine law clerks prepare cert, memos on each petition, there's a better chance at least one of them will identify a petition that really should be granted. In some chambers, law clerks give their Justice comments on cert, pool memos. Perhaps the cert, pool is an inevitable consequence of the huge increase in the number of cert, petitions.

In 1957, there were just eighteen law clerks. Seven Justices had two, Justice Douglas had one, and the Chief Justice had three. In 2014, each Justice had four clerks for a total of thirty-six. (7) The reason Warren had three clerks in 1957 was our primitive technology. There were no Xerox machines or other means for quickly reproducing copies of documents. When people without lawyers asked the Supreme Court to review their cases, they usually filed just one copy of the cert, petition, often handwritten. (8) Most of these pro se petitioners were prisoners challenging either their convictions or the conditions of their confinement.

With that one copy from the pro se, the law clerks for the Chief Justice prepared a short memo--usually two or three pages--for all nine Justices of the Court. (9) We made copies of our memos by typing them on carbon sets with eight sheets of carbon paper between nine pages of tissue paper. Our memos were appropriately called "flimsies." The ninth copy was barely legible. In 2014, cert, memos in pro se cases were prepared by the cert. pool.

One day during my clerkship, Justice Frankfurter, who had a rather strained relationship with Chief Justice Warren, stopped me in the hallway on the way to my office and told me he wanted me to come with him to his chambers to discuss one of the pro se cert, memos I had written. "That is," he added with a twinkle in his eye, "unless you're quarantined from my chambers." On another occasion, when I had used a colloquial term in a memo, Justice Frankfurter sent me a note stating, "You have permitted the gaiety of conversation to intrude upon the permanence of print."

The increase in the number of clerks has had one consequence not usually reported. Anyone looking at the thickness of the books containing opinions of the Supreme Court will notice that as the number of law clerks increased over the years, so did the number of pages of the Court's opinions. There were not more opinions. In fact there were fewer. (10) The opinions just got longer. (11) Law clerks draft many opinions, and Justices often do not take the time to edit them down to an appropriate size. (12)

A few words about my title "senior law clerk," in later years changed to "chief clerk." The Chief Justice customarily bestowed the title on the one of his three clerks who had been a law clerk at a court of appeals. Since I had been a law clerk at the District of Columbia Court of Appeals, I got the title. It was not a merit designation. The title carried one perk--a large office all to myself--and the responsibility for choosing the monthly speakers for lunches at the Court with the entire group of law clerks. Our drawing power was apparently significant. Dean Acheson came. Justice Brennan came. And then there was the time I invited a young senator from Massachusetts. The other clerks gave me a lot of grief for selecting John F. Kennedy, but I assured them this fellow had a big future.

In 1957 most of the small group of eighteen law clerks had lunch together almost every day in a room set aside for that purpose. The conversations covered lots of ground, and frequently one or more of us would urge the others to take a careful look at a cert, petition that we thought was a strong candidate for Supreme Court review. The law clerks were first given a room for lunch during the 1954 Term, after some Justices overheard clerks talking about cases in the public cafeteria. The 2014 Court had no lunchroom for the clerks, and today's clerks never have lunch together as a full group and rarely even in smaller groups. I think that change is a loss, not just in collegiality but in opportunities for useful exchanges.

A final fact about the law clerks. Eight of them have become Justices of the Court, including Justice Gorsuch, who is the first former law clerk to serve alongside a Justice for whom he clerked, Justice Kennedy. (13) Justice White clerked for Chief Justice Vinson, Justice Stevens clerked for Justice Rutledge, Chief Justice Rehnquist clerked for Justice Jackson, Justice Breyer clerked for Justice Goldberg, Chief Justice Roberts clerked for then-Justice Rehnquist, Justice Kagan clerked for Justice Marshall, and Justice Kavanaugh also clerked for Justice Kennedy.

I turn now to the Justices themselves--first, their number. There were nine in 1957 and nine in 2014. But the number has not always been nine. The first Court, appointed by George Washington in 1789, had six Justices. (14) Congress increased the number to seven in 1807, to nine in 1837, and to ten in 1863. (15) The size was reduced to nine in 1866, fell to eight in 1868, and went back to nine in 1869, where it has remained ever since. (16)

Although the number of Justices is the same today as it was in 1957, there has been a marked change in their backgrounds. In 1957 only two, Justices Harlan and Whittaker, had previously served on a federal court of appeals; Justice Brennan had served on a state supreme court. From 2005 until Justice Kagan came to the Court in 2010 after serving as Solicitor General of the United States, all nine Justices had been judges on federal courts of appeals. And for the twenty-three years from 1991 to 2014, there were always at least six Justices who had been judges of federal courts of appeals. There were eight in 2014, and there are eight today.

I think the appointment of so many former federal appellate judges is unfortunate, although no one would expect me, of all people, to suggest that a federal court of appeals judge would not make an admirable member of the Supreme Court. My point is that the Court benefits from an array of Justices with varied backgrounds, especially political experience. On the 1957 Court, Justices Black and Burton had been United States Senators, and Chief Justice Warren had been a governor. Justice Clark had been the Attorney General of the United States, Justice Douglas had been a professor at Yale Law School and chairman of the Securities and Exchange Commission, and Justice Frankfurter had been a professor at Harvard Law School. I should acknowledge that on the 2014 Court Justices Scalia, Ginsburg, Breyer, and Kagan had been full-time professors before their appointment, and others had taught part-time. (17)

The 1957 Court comprised nine White men. (18) Thurgood Marshall became the first Black Justice in 1967, and Sandra Day O'Connor became the first female Justice in 1981. The Court in 2014 included one Black Justice and three women. Three Justices were Jewish, and six were Catholic. In fact, a remarkable feature of the 2014 Court is that no member of the Court was a Protestant, a complete change from the Court during most of the nineteenth century when all nine Justices were Protestant. (19)

How the Justices were confirmed has significantly changed. (20) We are now so used to televised hearings of nominees before the Senate Judiciary Committee that it is worth recalling the earlier practice. No Supreme Court nominee even attended a Senate committee hearing until Justice Stone, then the

Attorney General of the United States, was questioned in 1925. (21) The...

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