15 October 2009

The Role of the Supreme Court Law Clerk

Philippa Scarlett, former Supreme Court clerk

Philippa Scarlett has served as law clerk to U.S. Supreme Court Associate Justice Stephen G. Breyer and to Judge Ann C. Williams of the U.S. Court of Appeals for the Seventh Circuit. Now a partner with Kirkland & Ellis in Washington, D.C., she has also worked in the Office of Overseas Prosecutorial Development at the U.S. Department of Justice. Scarlett has lived in Africa, Asia, Europe, and South America, and her pro bono work has included winning asylum in the United States for survivors of torture.

In this interview, Scarlett describes the responsibilities of a Supreme Court law clerk.

Question: What types of tasks are Supreme Court clerks involved in?

Philippa Scarlett: While the precise assignments of each law clerk vary somewhat from justice to justice, there are generally speaking four categories of tasks for which U.S. Supreme Court law clerks are responsible.

Review the Cases

The first is to help review the more than 7,000 petitions for Supreme Court review, officially called petitions for a “writ of certiorari,” that the Court receives each year. The Supreme Court’s review of a case is discretionary, with a few exceptions; in other words, for the vast majority of petitions, the Court decides whether or not to grant the petition review for a decision on the merits. The majority of the justices participate in what is called the “cert pool,” where cert is short for writ of certiorari. The cert pool is comprised of the law clerks of each participating justice. Every week, a set of the incoming petitions is divided and assigned to each law clerk of the justices participating in the cert pool. Each law clerk is then required to review closely and analyze each of his or her assigned petitions and prepare a memo to all the justices participating in the cert pool. The pool memo, as it is called, summarizes the petition, analyzes the legal claims it makes, assesses whether the Court has jurisdiction to actually decide the case, and then makes a recommendation to the Court on whether or not to grant the petition. The justices read each pool memo and make their own assessment of whether or not to grant each petition under consideration at the justices’ private conference, which is held about every two weeks when the Court is in session. Often, a justice will ask his or her law clerk to do follow-up research about a petition, in which case that law clerk will prepare a follow-up memorandum for his or her individual justice. At the justices’ private conference — only the justices are present for these meetings, no other Court personnel — the justices discuss the petitions and cast their votes to grant or deny each petition. A petition must receive the affirmative vote of at least four of the nine justices in order for the Court to grant it.

Help Prepare the Justices for Oral Argument

Once a petition is granted, the Court sets a schedule by which the parties to the case, as well as other entities with a special interest in the case — called amici curiae or friends of the Court — are to submit their written arguments on the merits of the granted case. The Court also sets a date for the parties to come to Court and formally present their arguments orally before all justices of the Court. Here is where the second major task for Supreme Court law clerks comes in. Before a case is argued, the law clerks write a memorandum, called a bench memorandum, to their individual justices, which seeks to help their justices prepare for oral argument and the ultimate disposition of the case. Generally speaking, a bench memo analyzes the written briefs and the relevant law at issue in each case that the Court has granted review. Often a justice will ask his or her law clerk to research a particular legal issue that the parties did not cover in their briefs but may be important to how the Court resolves the case. The law clerk incorporates that research and analysis into the bench memo. Again, each justice runs his or her chambers a little differently, so, for example, not all justices require their clerks to prepare bench memoranda.

After oral argument, the justices meet privately to discuss the case and cast their votes on the outcome of the case. The case is decided according to the votes of five or more justices. If the chief justice is part of the majority, he will assign the drafting of the legal opinion to himself or to one of the other justices who comprise the majority in a given case. That legal opinion is the document that decides the case and explains the Court’s reasoning for reaching its conclusion. In the U.S. legal system, judicial opinions become part of the law as binding precedent to which judges must defer in the next case that presents the same or a substantially similar legal issue. If the Court’s opinion is not unanimous — in other words, if there are justices who dissent from the position or outcome or reasoning of the decision that received the majority of the justices’ votes — then the most senior justice in the minority will assign the drafting of the dissenting opinion, again either to himself or herself or to another dissenting justice, if there are more than one. Thus, for example, if the chief justice is in the minority view, then the next most senior justice, determined by the number of years that person has served as a Justice on the Supreme Court, who is in the majority will assign the writing of the Court’s opinion and the chief justice will assign the drafting of the dissenting opinion or opinions.

Help Research for and Assist in the Drafting of Judicial Opinions

Once a justice is assigned the drafting of the Court’s majority opinion or decides that he or she will file a dissenting opinion, the justice will often ask the law clerk who drafted the bench memorandum of the particular case to do extensive research, in collaboration with the Court’s library and sometimes other libraries such as the Library of Congress. Researching for and assisting the justices in drafting judicial opinions is the third major task of a Supreme Court law clerk. Once the justice feels that the draft opinion is complete, he or she will ask his or her law clerk to finalize the draft for circulation to the Court. The clerk then circulates the draft opinion to the other justices of the Court. If the judicial opinion is that of the majority of the Court, each justice who is in the majority reviews the circulated draft and decides whether or not to formally join the opinion. Sometimes, a justice who agrees with the conclusion of the draft opinion might ask the authoring justice to incorporate another point or otherwise edit the draft. The law clerk who assisted the justice who authored the majority opinion will implement whatever changes the authoring justice agrees to and then circulates to the Court the revised draft opinion. This back-and-forth continues until all justices in the majority formally join the opinion. If there are dissenting opinions — there can be more than one — each justice will then circulate his or her dissenting opinion. Often, the justice who authored the majority opinion will incorporate into the majority opinion a response to the dissenting opinion’s arguments. Once the content of the majority and dissenting opinions is decided, the law clerks of the justices who authored the majority and the dissenting opinions will work with the Court’s reporter of decisions to finalize the opinions for publication. This process involves checking all the citations in the judicial opinion for complete accuracy and conforming the opinion to the official style of the Court.

Supreme Court Justice Clarence Thomas and his former clerk Allison H. Eid, now chief justice of the Colorado Supreme Court.

Once the opinion is ready for publication, the authoring justice will orally announce the decision to the public in a formal hearing and summarize the reasoning of the opinion. Sometimes, the justice will ask his or her law clerk to write the initial draft of this oral statement.

Helping with Emergencies

The fourth major task of Supreme Court clerks is to assist the justices in deciding emergency applications to the Court, the majority of which are applications by prisoners to halt their scheduled executions. Such applications come to the Court about once or twice a week and sometimes are submitted to the Court within a few hours of the scheduled execution. Each justice and one of his or her law clerks, who is randomly assigned to that particular emergency motion, researches and analyzes its legal claims. The law clerk then circulates to the Court his or her justice’s vote on whether to grant or deny the emergency application to halt the execution. A stay requires the affirmative vote of five justices of the Court.

So those are the four main tasks of a Supreme Court law clerk: drafting pool memoranda, drafting bench memoranda, assisting with the drafting of judicial opinions, and assisting the justices in their review of emergency stay applications. In addition, some justices ask their law clerks to assist them in preparing speeches or other presentations for public audiences.

Q: Compared to your previous clerkship, how was working at the Supreme Court different? Were there similarities with your other clerkship?

Scarlett: Before clerking for Justice Stephen G. Breyer on the U.S. Supreme Court, I clerked for Judge Ann C. Williams on the U.S. Court of Appeals for the Seventh Circuit in Chicago, Illinois. There are many differences between the two clerkships. Perhaps the biggest difference stems from the fact that the Supreme Court has discretion to review a case. If a party appeals its case from the federal trial court to a court of appeals, the courts of appeal must adjudicate the case, so long as the jurisdictional requirements are satisfied.

This is not so at the Supreme Court, with a few exceptions. Therefore, many of the Supreme Court’s resources, including law clerk time, are devoted to assessing the 7,000-plus petitions filed each year and deciding whether or not to grant a case review on the merits. There is a wide range of issues the Supreme Court considers in deciding whether or not to exercise its discretion and grant a case review on the merits, but the most salient factor that often compels the Court to review a case is if the federal courts of appeal have decided the same issue of federal law in a divergent manner — that is, if there is a split of authority. The Supreme Court will often intervene in such a circumstance to decide the legal issue definitively and thereby impose uniformity in the country on that legal issue, whether it arises in the state of California or New York or Florida, for example.

Another big difference between the clerkships is dealing with the emergency stay applications in death penalty cases. At the Supreme Court, an emergency motion to stay an execution is filed about once every week or two; at the court of appeals level, the number of such motions is considerably fewer. Thus, Supreme Court clerks spend a considerable amount of time assisting the justices in assessing emergency motions, some of which can be filed late into the night.

Q: Is there anything about the judicial decision-making process that would be surprising to our readers?

Scarlett: A feature of the Supreme Court that the justices often mention publicly is its collegiality and civility. Despite the fact that the justices decide sometimes very contentious cases on, for example, abortion, guns, or voting rights, and may disagree vehemently about the proper outcome of those cases, the justices clearly respect one another deeply and also the institution of the Court and report that they do not let their difference in views on the law detract from their working relationship.

Q: How did the experience influence your career?

Scarlett: I only finished my clerkship with Justice Breyer in July 2008, so I think it is too soon to say. But I can say that clerking for Justice Breyer was one of the most enriching and fulfilling experiences of my professional life to date, and it is an experience for which I am very grateful.

The opinions expressed in this interview do not necessarily reflect the views or policies of the U.S. government.