Legal Docket: Behind the Scenes - Clerks and Marshal's Aides - S2.E5

MARY REICHARD, HOSST: It’s not often that a Supreme Court clerk makes headlines. But in October 2020, that’s exactly what happened.

WOLK: Mr. Chairman, Ranking Member Feinstein and members of the committee…

EWTN NEWS: One of Amy Coney Barrett’s former law students is now sharing her personal and powerful perspective about the judge everyone is talking about...

WOLK:  My name is Laura Wolk, and I am a former student and mentee of Judge Amy Coney Barrett, in part because of her unwavering support, I am the first blind woman to serve as a law clerk on the Supreme Court of the United States.

FOX NEWS: That was yesterday. Laura Wolk sharing a powerful story about her mentor Judge Amy Coney Barrett before the Senate Judiciary Committee. 

WOLK: Through her mentorship. She has given me a gift of immeasurable value, the ability to live an abundant life, with the potential to break down barriers so that I can leave this world a better place than I found it.

JENNY ROUGH, HOST: In law school at Notre Dame, Wolk took two classes from then-professor Amy Coney Barrett: Civil Procedure and Statutory Interpretation. Both came in especially handy in 2019, when Wolk landed a clerkship with Justice Clarence Thomas at the Supreme Court. Wolk says like most institutions, the court experienced growing pains as it learned to interact with her and her specific disability. But the court was committed so that Wolk—and future law clerks—could do the job.

WOLK: The court was amazing. It's hard to articulate. But if you've ever been in a position like this, you know the difference between people who are doing things because they have to, it's their job. And people who want to and they believe in it. And every single person at the court that I interacted with was very firmly in that camp, they … just told me over and over again, like, we know, we like this is a great opportunity for all of us to grow.  It was really a testament, I think, to just the broader court in general about how willing everyone was to help me and pitch in.

MR: While Laura Wolk’s story is unique, she isn’t alone. Each Supreme Court term, nearly 40 law school graduates—most who’s names we’ll never know—also want to make the world a better place. They start by clerking for the Supreme Court justices, and they play a crucial role in some of the most influential cases facing the court. Today, we’ll talk with five of them about their experiences with the highest court of the land.

THEME

UNDERWRITING: Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical solution to health care, connecting Christians across the nation who care for one another spiritually and financially when a medical need arises. More at samaritanministries.org/worldpodcast.

MR: Every term the Supreme Court fills three to five volumes’ worth of final opinions. Thick, heavy volumes of 800 to 12-hundred pages each. So we’re talking 24-hundred to 6-thousand pages, each year. And that doesn’t even include all the briefs and slip opinions and the rest. You only get that done with help. A lot of help!

WOLK: My name is Laura Wolk and I clerked for Justice Thomas during the court’s 2019 term.

WHITE: My name is Jack White. And I clerked for Justice Alito in 2008 and 2009.

MORRELL: My name is David Morrell. I clerked for Justice Clarence Thomas in 2012 and 2013.

HAWLEY: Erin Morrow Hawley. And I had the opportunity to clerk for Chief Justice Roberts, in what's known as the October term of 2007.

KUBISCH : Brittney Lane Kubisch. I clerked for Justice Thomas and I clerked in the OT 2017 term. Which would be 2017-2018.

SEIDLECK: So my name is William Seidleck. I go by Bill … And when I was at the court, I worked at the court as a Marshal's aide from August of 2011 to August of 2013.

MR: These are the law clerks … and Marshal’s aides. They do vital jobs that keep the US Supreme Court spinning like a top.

JR: The eight associate Supreme Court justices each can hire four law clerks, often recent law school grads, often from the same elite schools that produce the justices themselves. The chief justice can hire five. He gets an extra clerk to help with his additional administrative duties. 

MR: And the Marshal is the court administrator. The Marshal gets about 10 aides to help with that job. Often recent college grads. Clerks and Marshal’s aides work for one-year terms. They are paid, but well below what you might consider “market” rates. And yet — it’s a coveted job.

JR: Partly because of the future payoff. Some law firms pay upward of $400,000 to sign someone who’s been a Supreme Court clerk!
Law clerks have a prestigious job—and highly intense. Late nights, long hours. And the interview to get the job can be the most nerve-racking part! David Morrell, who clerked for Justice Thomas, recalls his experience:

MORRELL: Oh, yeah, it's this brutal process. It's the worst part of the job. The worst part of the job is getting the job and having to run the gauntlet of the four current clerks who come in and ask you questions, and no matter what you say, you're wrong...

MR: Sometimes, it’s a trick question lobbed at potential clerks. Maybe a little hazing.

MORRELL:  So what do you think about, you know, the dormant commerce clause? Doesn't exist! I mean, it's just, it's very doctrinal. What do you think about stare decisis? What do you think about the 14th Amendment? And they just pepper you, and it doesn't matter what you say, I mean, you could be John Marshall, and you know, you're an idiot.

MR: That’s saying something. Because John Marshall was the fourth chief justice who helped establish the principle of federalism and the court’s authority in Marbury v Madison. In other words, not an idiot.

MORRELL: And not that they call you that, but you feel like one. … Now, I don't think all chambers do that. But I think … it's kind of a rite of passage.

JR: What’s the path? What does it take to become a law clerk at the Supreme Court? Here’s Erin Hawley:

HAWLEY:  I was an animal science major, and knew nothing about the legal profession, or even law clerks. So it wasn't until I started law school, that I really even knew there was such a thing as law clerks.

MR: So, a diverse undergrad is perfectly fine. After undergrad? Different story. Again, Morrell:

MORRELL: You have to have grades. Typically, they come from places that would be considered good schools kind of by conventional rankings. Almost everyone and maybe 100% have clerked for a Court of Appeals judge. And there's a certain type that they call in the biz, feeder judges….

JR: “Feeder judges,” meaning lower court judges who recommend you to a justice for the job.

MR:  And it’s not all just about academics. Jenny and I read books about Supreme Court law clerks. I read one titled In Chambers. It told how the late Justice Ruth Bader Ginsburg looked for certain character traits in her potential law clerks. And I loved this story. Justice Ginsburg noticed that one applicant from Harvard didn’t treat her secretaries with respect. She wouldn’t put up with that arrogance. She told her clerks, “If push came to shove, I could do your work. But I can’t do without my secretaries.”

JR: A good lesson to remember for any line of work. So proper respect … and as Morrell says … certain people skills.

MORRELL: It's not the kid who got a 180 on the L-SAT and got perfect grades but is really weird and no one wants to be around. Because remember, the chambers, the work of the court is limited to very few people. There's the justice and then his or her four clerks. It's a pretty small operation. And so if you're kind of an oddball and can't carry a conversation, you know, it's just human nature justices don't want to spend a year with you in close quarters….

MR: Justice Lewis Powell who was on the court in the ‘70s and ‘80s said the Supreme Court staff was really “nine little law firms.” So, pretty cozy. And, well, pretty OCD … although Erin Hawley doesn’t quite put it that way.! 

HAWLEY: In terms of personality traits, you need to be someone who's very meticulous, especially when it comes to checking citations and those sorts of things.

JR: And even with a detail-oriented personality, law clerks need another leg-up. 

MORRELL: One other piece of that is everyone there, I found also had a champion in the background, so someone that they could point to a human being out somewhere in the world, whether it be a law professor, a Court of Appeals judge, someone from college, someone that went to bat, for that person before the justice that they ultimately clerked for, everyone had someone like that.

JR: That’s another good lesson to remember: You don’t have to be a lawyer to be an advocate for others. Jack White had a real “in,” a champion of champions. He’d clerked on the Third Circuit federal appeals court for a judge named Samuel Alito. After White left that clerkship, they kept in touch as Alito’s star continued to rise.

MR: Opportunity knocks at sometimes inopportune times!

WHITE: And then I got a telephone call from Justice Alito, while I was in practice in San Francisco. I had just bought a house. And the week before, my wife and I had learned that we were pregnant. And the Justice said to me, “Hey, Jack, you know, I'd like you here in DC.” Well, I was going to trial the next week. And so I said, Sure, Justice, I can take a plane out, but it’ll have to be the week after next, because I'm in the middle of something right now. I thought he wanted to visit. And he said, No, Jack, I want you to come and clerk for me here in DC.

MR: As White put it, he had a pregnant wife and showing proper respect needed her blessing. So he asked Justice Alito, Can I get back to you on that?

WHITE: And I got home that evening, and I told my wife, who is also a lawyer. And she said to me, I think these were her exact words: “What, are you stupid?” And so I followed up with the justice and told him that I welcome that opportunity. And three days before my baby boy's due date, I started my clerkship.

MR: Life comes at you fast!

WHITE: So I started on a Monday. My son was born on a Thursday. That Friday, I got a wonderful gift from the court. And that Friday night, I got a call from chambers saying, congratulations, Jack. We'll see you on Monday, right?

MR: So that’s the ordeal of getting the job of Supreme Court law clerk.

JR: Oh, that’s just getting a toe in the water. Once you have the job, the pool gets deeper.

MR: I see what you did there! Because the first of a clerk’s three main tasks has to do with “cert,” c-e-r-t-, or “the cert pool.”

JR: That means certiorari: the order by which a higher court reviews a decision of a lower court. Here, Kubisch, Morrell, and Hawley, in that order.

KUBISCH: So the first major duty you have as a law clerk is looking at all the thousands of petitions for review that come in, asking the court to hear the case and write a memo on your portion for all the justices, if you're in the cert pool, recommending whether or not the case meets the criteria for granting cert and for the court hearing the case.

MORRELL:  There's about 10,000, certiorari petitions filed per year at the court...When I was there is that's a lot of documentation, a lot of writing, a lot of briefing that the court needs to evaluate and to decide whether or not to take in a case.

HAWLEY: And the clerks have the first responsibility of wading through the cert petitions to winnow out those that the justices might be interested in reviewing. And so that takes up a lot of time.

MR: So, this “cert pool” assesses the worthiness of a case. It may not be simply that the court below decided the wrong way. The Supreme Court can’t correct every single wrong decision in the country, as Hawley told us. But the court does have parameters for review. One parameter is a “circuit split,” meaning the circuit courts of appeal arrive at contradictory conclusions and that needs a resolution. Another parameter is whether a case presents a problem that tends to crop up frequently, and whether it affects lots of people.

JR: And within that, I should mention the controversial practice of considering all those requests to hear a case. Some think that law clerks don’t yet have enough experience to have as much say as they do in deciding what cases the court hears. Even some former law clerks and justices worry about that. The system is set up so that unless a law clerk flags a petition as being “cert worthy” for the justices’ attention, it’ll be denied by default. That’s a lot of power!

MR: It is, and for that reason, some justices do not participate in the cert pool. They review all the petitions for certiorari themselves with their own law clerks. Justices Samuel Alito and Neil Gorsuch do it that way, but they’re just two of nine … and even the Alito and Gorsuch clerks have a lot of say-so. That’s the first major duty of a clerk.

MORRELL: And it's, the really, the only thing you do during the summer, when you start.

JR: Then, the justices layer a second duty on their clerks.

MORRELL: It kind of reminds me actually, your audience might be familiar with the Father Abraham song from Sunday school? Where you kind of layer on additional, you know, moves as you sing the song. And it's kind of like that.

REICHARD AND ROUGH: SINGING FATHER ABRAHAM SONG

MR: And you add in left arm, right foot, left foot, chin up. Remember?

JR: Oh yeah. So we can think of “right arm” as the cert pool, one layer.

KUBISCH: And the second major duty would be when cases are accepted by the court and set for oral argument, writing a bench memo for your own justice recommending how you think the justice should rule on the case and what reasoning, he or she should use to get to that outcome.

JR: The bench memo.

HAWLEY: What you do is you read all of the party's briefs very carefully, you probably read many of the cases that are cited in the party's briefs to see if you agree with what the parties are saying. You may read some of the amicus briefs and then bring, summarize the ones that are important.

MORRELL: You only write for your own justice. You write a bench memo that says, here's what the case is about, here's the arguments. And here's my analysis as to how the case should be decided. And then that's something that's given to the justice that he or she can use in preparing for oral argument.

JR: Then you have to be ready for the big meeting with the boss to talk about what you’ve written.

HAWLEY: What happens is quite terrifying. And he calls you into his office, if you're assigned to the case, and you sit across the desk from him, and he just proceeds to grill you for however long he needs to on the facts of the case, on what certain cases say or hold, you know, the party's arguments, what amicus brief said this or that, and you knew you were in trouble... the chief wears glasses, glasses, typically. And if the glasses got lower and lower, you better backtrack quick.

MR: That’s a part that Kubisch remembers vividly!

KUBISCH: I thought the most terrifying part of my job was the first time I had to meet with the justice before oral argument. The clerk's conference with their justices before oral argument to discuss the bench memos and sort of this, the first time you get the justices reaction to what you've written. Uh, I was sweating and shaking and you know, someone who has done oral advocacy before judges before, I could barely speak when he asked me about the bench memo. Um, it got less scary sort of as the justice and I got to know each other better, but the first time I was speechless, which is not common for an appellate lawyer.

JR: So, we’ve covered two parts of the clerks’ job—the right arm and left arm of our Father Abraham song if you will. First, the cert pool, where they decide what cases to hear. And second, the bench memos, where the clerks condense the arguments from each side and present them to their justice. Then, the justices add another responsibility! The right foot...

KUBISCH: And then the third major duty is once the justices have heard oral argument and met together and conferenced on the case and decided who's going to write the majority dissenting or concurring opinions in a case is helping the justice prepare an initial draft that then, um, they can revise and circulate to their colleagues.

JR: Drafting an opinion usually means hours of work at a desk. But Laura Wolk is a runner. When she clerked for Justice Thomas, she used her running time to draft the opinion and puzzle through the legal arguments!

WOLK: When I was running, a lot of it was sort of planning out in my head ... especially if you're working on, you know, drafting an opinion. How can I write this in a way that will make sense? Or how can I organize my thoughts in a way that will make sense to someone who doesn't know anything about the case? ... Or sometimes you would just need to step away … you turn to something else and all the sudden the answer just clicks in your mind.

I wondered about how the justices divide up the cases. Let’s face it, some disputes are more interesting than others. I asked: Is there any friendly competition in that somewhere? Brittney Lane Kubisch.

KUBISCH: You know, it's funny, like everyone who gets to clerk on the Supreme Court is a super law nerd. Um, but they're all super law nerds in different ways, right? Like I have a big civil background. I do a lot of, um, residential mortgage backed security cases. Um, and I like that kind of law, it interests me. And then I had co- clerks who worked for a state and did a lot of criminal background. So yes, there are some blockbuster constitutional cases that we all like and are interested in, but there's also a diversity of interests.

MR: What struck me was how all our former clerks felt profoundly grateful: not just for the intellectually stimulating people, but for their kindness and camaraderie. Jack White emphasized that very thing.

WHITE: Justice Alito taught me this, he doesn't even know that he taught me this...One day, I came into chambers, and it was a weekend. It was a Sunday. And the Phillies were playing. He loves the Phillies. And I was trying to leave him alone. It was a weekend. But we met at a printer. And I said, “Sir, it's the weekend. Well, why are you here?” And what he said to me is, “Well, Jack, that 30 minutes that that litigant has before this court is likely to be one of the most important 30 minutes of their lives. They deserve a little bit of my time on the weekend.”
Well, you know at once that introduced me to the humanity that he brought to the weight of his role.

JR: Kind of like being a good dad.

WHITE:  When my children come to me, whatever issue or thing they have at that moment, is the most important thing in their lives. Now, I might have 50 things going on at the moment. But when my son or either of my sons or my daughter, come to me at that moment, whatever is on their mind, is the most important thing at the moment.

JR: And for young moms like Erin Hawley, working as a law clerk taught her to manage important things, plural.

HAWLEY:  Multitasking! I think that's something that we have to do. But I've got two boys, they are eight and six and a newborn baby girl and I think just the ability as a Supreme Court clerk, you've actually got a number of different responsibilities.

MR: For Kubisch, real life came crashing through while she was still clerking for Justice Thomas.

KUBISCH: My husband and I found out a surprise in March that I was pregnant with our first child while I was on the court. And so I was super super morning sick and also had to leave for a lot more doctor appointments. And thank goodness I worked for a fabulous justice and about 10 weeks in, I was so sick. I had to say something because I was disappearing into the bathroom quite a bit. And I just, you know, went in and told him, and he was so excited. This is actually one of my favorite stories to tell because I was terrified to tell him. We were going into the hardest part of the term where clerks worked super long hours. And he was, "Oh my goodness, we're gonna have a baby!” He wanted to see the pictures of the ultrasounds every time I went. So it's life, it's a job and it's life. It's a very important job, but things happen that can't be set aside.

MR: Laura Wolk said some tasks at the court are traditionally done on paper. As a blind person, she reads Braille and uses talking computers. Paper could pose an accessibility problem. She said her justice made the environment conducive to a person with a disability. Like updating the task to make it software accessible.

WOLK: I do think Justice Thomas, he's a really great example of that. He knew I could perform the functions of a clerk that I needed to perform. If anything came up, that was an access barrier issue, he made it very clear it was not a reflection on me. He understood that it was something beyond my control, and something that we would need to work on together to fix.

MR: I asked each of the clerks how much ideology enters into the job. Morrell said there’s a check on that at some level.

MORRELL: And so I'm not sure ideology factored in all that much. And also, I think there's also accountability on that because I don't know if anyone just kind of outsource their thinking on a petition to the pool memo. So I think the pool memo was a piece of information, but obviously, everyone has access to the petition itself and conform their own judgment. So you know, you it's sort of like what's the point, you know, just being an honest broker and, you know, maintain your credibility in the pool.

MR: Ideological differences really don’t have to fracture people. Hawley mentioned the late Justices Antonin Scalia and Ruth Bader Ginsburg. 

HAWLEY: And they were honestly the best of friends and they would disagree vociferously on legal issues and on cases, but also had a fast friendship and enjoyed sort of the legal back and forth. And as Justice Scalia always said that Justice Ginsburg made his opinions better, and vice versa.

JR: Ideology may not seriously affect collegiality among clerks or justices. But that doesn’t mean it doesn’t matter in cases.
I spoke with Barry McDonald, a former law clerk to the late Chief Justice William Rehnquist. He confirmed what we heard earlier about the opinion writing process, that third major task we talked about. But he says there’s more to it, and it’s not always good.
McDonald:

MCDONALD: Basically, what the justices do is, they read the briefs in a case, they discuss it with their law clerks, then they hear oral arguments, and then they just go into a conference meeting where they take a straw vote on where you want to end up on this case, right? And then if the chief justice is in the majority, then he gets to say, “OK, you write the opinion.” Or if the chief justice isn’t in the majority, then the next senior justice is able to say, “OK, you write the opinion.” But the bottom line is … that process works toward the justices’ sort of using too much intuition. And where political values can creep in as to where they want a case to end up rather than what the law would call for in a particular case. … All too often, these Supreme Court decisions, or opinions, are just post hoc rationalization of a result that the justices already reached.

JR: Years after he was a law clerk, McDonald co-authored an article about this very topic for Politico. I love the question the article presented. Quote: “Should not law precede judgment?”

MCDONALD: Our argument was this is a faulty system and that really what should be happening is that the justices shouldn’t sort of commit themselves ahead of time to the legal result in a case. They should assign the opinion to somebody and see how the law writes. And then look at it and see if they think that it’s a good decision or not. But I think our point was that you have to see how the law writes and where logic leads you before you can truly say you’re applying the law versus your political values or ideological preferences in a particular case.

MR: Well, let’s move on to the personal side of the relationship between justices and their law clerks. There’s the hard work aspect, but also the playful side.

JR: Another book I read, Of Courtier & Kings, told a story of the late Justice Sandra Day O’Connor taking her clerks on field trips around D.C. An impromptu outing to the U.S. Botanical Gardens in the middle of a workday caused a stir when members of the general public recognized her!

MR: Here’s another playful story. Let’s hear Morrell talk egg McMuffins and Justice Thomas:

MORRELL: So he'll, you know, take the clerk's out for a day trip to Gettysburg and you go with a guide and learn about Gettysburg history. So the morning of that he told us, okay, meet me at the Cracker Barrel off such and such a highway in Northern Virginia. So we all show up. And he's there with the bus. And he is double fisting in one hand, egg mcmuffins from McDonald's and Dunkin Donuts in the other to feed us.

JR: Of course, every job has its less than pleasant moments. For law clerks, that includes regular job frustrations that pop up from time to time. But in this line of work, it also includes carrying heavy burdens of decisions that involve life or death. Literally. Listen to Morrell talk about one of the hardest parts of the job.

MORRELL: It was executions. You know, there there is a very weighty responsibility that the Supreme Court has, and, you know, as a clerk, that's part of your responsibility as well is kind of hearing, you know, when you read about in the news, the last minute, you know, request of the Supreme Court to stay the execution. I mean, all of that goes through the hands of, you know, clerks for each of the justices. But you know, it's something that it's filed with the court and the court’s gonna act.

JR: No matter how you feel about capital punishment, a weighty responsibility. And Mary, there’s another job neither of us had heard of and we want to touch on that. Marshal’s aid!

MR: Yep, we got ahold of Bill Seidleck. The Supreme Court has around 10 marshal’s aides. They do the court marshal’s bidding.

SEIDLECK: And so the marshal's office is...essentially the administrative hub of the court. So everything from the custodial work of the court, the janitorial, the janitorial staff to even any like the people that order the paper. And so one of the great things about the marshal's aide position was that you could find yourself working in any number of capacities within the court on a given day.

JR: Anything from helping the telecom staff to managing paperwork in the justices’ chambers, to fetching water, or needing a legal case pulled. Or a steadying hand.

MR: I told him when you and I were in the courtroom, Jenny, we witnessed a hand reaching out from behind the red curtains to hold steady Justice Ginsburg. This was 7 months before her death. Whose hand could that have been?

SEIDLECK: Yes. That could have been a marshal's aid because the marshal's aides were essentially responsible for basically keep everyone moving in that back area behind the bench, as the Justices are coming down.

MR: What if the justices want something from the library while they are on the bench?

SEIDLECK: There's a phone and so if you get a request for a book, then you call the library and the librarians in their wonderful magic go and find the book very quickly. And then they will ring the bell on the dumbwaiter and send the dumbwaiter down, so then we can bring the book to the Justice. And again, I was always amazed by how remarkably fast this happens.

MR: All of the people we spoke to mentioned how transformational their time at the Supreme Court was for them. For Jack White, especially so.

WHITE: There's this phenomenon in science called parallax. Parallax is where when you look at an organism through a microscope, if you look at it from one angle, then the organism will appear to be one thing. If you move your head, and you look through the microscope at the same organism, from a different angle, then the same organism will appear to be something else. It's the same organism. But it looks different by virtue of the angle through which you're looking at it.

JR: White relates this idea of “parallax” to the law. He’d once been a defense attorney as well as a supreme court law clerk. Then he worked for a plaintiff firm. Legal issues that cropped up in those various jobs looked very different from different perspectives. A defense attorney may see the same problem differently from how a federal judge might see it, or a plaintiff lawyer might see it.

WHITE: And so the lesson that came out of that is, opinions have to endure. But they have to not only withstand the test of time, they have to withstand the test of circumstance. And they also have to be able to survive parallax. They have to be able to survive scrutiny from different angles, where different people are looking at the same organism. They all have to be able to see the same organism.

MR: For White, who is also an ordained minister, having that perspective informed his work at the Supreme Court and beyond:

WHITE: And what God led me to, is using the law as my ministry. And that's what I do to this day when a client comes to me, you know, clients come to an attorney because something of import is at stake, either their life or their livelihood. And what I do for a living, is I lift that burden off of my client's shoulders. And I put it on mine by the grace of God. And that is my ministry. So that's the way I practice. The year was made better, because I was a Christian, because I could have the right perspective about where I was, what I was doing, and why I was doing it.

MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.

JR: And I’m Jenny Rough. We’re the hosts each week.

MR: Nick Eicher is our script editor. Technical engineer is Rich Roszel and our producer is Paul Butler.

JR: Also, we’d love to hear from you. Our email address is: legaldocket@wng.org. Last year’s season 1 went to number one on iTunes in the government category. Well, just long to enough to get a cup of coffee. But still! Thank you to everyone who’s subscribed to the podcast and left reviews. That helps spread the word and cement our mission: to demystify the court and the judicial system.

MR: Thanks again for listening. The Legal Docket Podcast is a production of WORLD Radio.

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