by Todd C. Peppers and Artemus Ward (ed.). Charlottesville, VA: University of Virginia Press, 2012. 472pp. Hardcover $34.95. ISBN 9780813932651.
Reviewed by Nancy Maveety, Professor of Political Science, Tulane University.
This is a very rich book. The co-editors (who are also contributors) are to be complimented for their assembly of such a deep and varied collection of “Stories of Supreme Court Law Clerks and Their Justices.” Because of the number of individual chapters and contributing authors represented, I will limit my remarks to a summary evaluation of the volume’s purpose and overall organization, with attention to a selection of the entries and how they contribute to the study’s impressive achievement.
To begin, those who are familiar with Peppers’ and Ward’s individual works on the history and institutional development of the Supreme Court law clerk will find this joint project a valuable supplement. While those earlier studies included an historical component, In Chambers’ stated purpose is to provide a descriptively comprehensive account of clerking and the clerks who have served the justices. As such, it is a collection of narratives, and each chapter can stand alone for readers with a specific interest in a particular justice or court era. But the book’s strength is in its reach: it extends temporally from Peppers’ analysis of the first, “lost law clerks” of Justice Horace Gray to Peppers’ own interview with sitting Justice Ruth Bader Ginsburg, and it encompasses pieces framed around historically significant justices – such as Brandeis, Black, and Brennan – as well as pieces framed around historically significant court events – such as the selection of the first black or female clerk. Even those chapters dedicated to particular justices frequently approach the clerkship topic through a thematic lens – whether that is the homosociality component of the early-twentieth century Holmesian model of law clerking, or the diagnosis of the difficult relations between the clerks and justices as different as Douglas and Whittaker. What the reader takes from this volume is a very detailed but also a very personal accounting of the clerk experience over time.
The book is organized into three sections: Origins, the Pre-Modern Clerkship, and the Modern Institution. While these categories are not precisely defined, they serve to structure the individual chapter reflections into rough developmental groupings that allow the reader to compare and contrast what is being said about clerking in a particular institutional moment of the Supreme Court. As Peppers explains in his very [*141] fine and very useful introduction to the collection, the essays are all directed to showing “how the private bonds between selected justices and clerks impact the clerkship institution and the Supreme Court in general” (p.2). These private bonds are distinctive and personal to the justice in question, but they also have a generational periodization that the volume’s grouping of the chapters does much to enhance and emphasize. The first section of five chapter entries spans the birth of the clerkship institution in 1882, when law clerks were first hired, through Stone clerk Bennett Boskey’s reminiscences about serving during his justice’s first two years as chief. The second section, which consists of eight chapters, opens with two entries on Justice Black – both by former clerks who served during portions of the BROWN litigation and remembered “the decisional process function[ing] under wraps different from that in any other cases” (p.136). The final section covering the modern period begins with law professor Jesse Choper’s personal reflections on clerking for Chief Justice Warren in 1960-1961 and concludes with Peppers’ entry on the clerkship employment practices of Justice Ginsburg, based on the author’s August 2009 interview with the justice. These nine pieces are followed by an Afterword and summary wrap up by Supreme Court correspondent Tony Mauro.
Peppers’ introductory chapter supplies a solid but succinct overview as to the changing nature and job duties of Supreme Court clerking, providing a point of access and a reading template for a wide variety and range of readers, from students to academic specialists to Supreme Court history buffs. While all of the pieces are very readable, some are of course of more intuitive interest than others – whether because they deal with “great” justices or because they deal with more contemporary ones. Still, the book makes good on its promised goal of “fill[ing] a niche between the empirical and the biographical approaches” (p.4), and though it is not exhaustively comprehensive (of all justices, of all time on the Court, of all aspects of the institution of clerkship), it strikes a good balance between breadth of coverage and detailed investigation of selected topics. Individual entries never feel cursory, and never lack connection to the overall project of the book. This is an notable and welcome achievement for a multi-author, co-edited volume, and it renders the book an interesting read on several levels: it can be perused at will by taking in random selections; it can be approached as a series of related reflections on a particular era, to be read and studied as such; or it can be appreciated as the story of an evolving institutional relationship, with each chapter adding a new nuance to the reader’s understanding. Some chapters take a more academic tone and treatment of their subject matter, others are unabashedly personal reminiscences colored with opinion – yet this variation gives the evolving story an energy that is quite engaging.[*142]
In terms of the selection of contributing authors, co-editors Peppers and Ward endeavored to find individuals who would have some expertise on the subject, either because they had clerked for the justice in question or because they had written extensively about the justices. Accordingly, the authors represent a broad range of Supreme Court specialists: political scientists, historians, academic lawyers, and journalists. Their chapters are as diverse as their backgrounds and appeal to a wide range of special interests. For instance, the essay on Lucille Loman, the first female clerk, hired by Justice Douglas, presents a fascinating snapshot of the history of the legal profession. The essays on Blackmun by former clerk Randall Bezanson and Rehnquist by co-editor Art Ward provide very well-rounded understandings of the modern clerkship experience and are informed by a lively mixture of scholarly sources and personal letters and recollections. An especially stirring synergy exists between the two essays dealing with Frankfurter clerks: one describing the “half clerk, half son” relationship that existed between the clerks and the justice, and the other focusing on the first black clerk, William Coleman, who clerked for Frankfurter in 1948 during the era of a racially segregated Washington, D.C.
As many of the entries were authored by former clerks, their intimate and often affectionate portraits of their justices can be enjoyed as mini-memoirs – but less flattering assessments can be found, too, among these insiders’ views. If the collection has any limitation, it is in representing the contemporary justice-clerk relationship and the intriguing and sensitive topics of the role of clerks in the production of judicial opinions and the ideological similarity between clerks and the justices they serve. Not too surprisingly, the co-editors faced great difficulties in finding essayists – critical or otherwise – for the current justices. No law clerk for a sitting or even living justice is willing to write an essay about the experience without permission from his/her justice, and it is nearly impossible to coax present justices into talking about their staffing practices. The Supreme Court’s canons of confidentiality effectively seal many of the chambers, and various justices inspire a certain loyalty, protective devotion…or caution in their former clerks. For me, this raises the question of what judicial scholars learn from the category of non-response by Supreme Court law clerks. What inferences and conclusions are appropriate and useful to draw from silence and, by implication, what validity can scholars attach to clerk portrayals that attempt to cast light on the justices as individuals?
Peppers and Ward leave such questions for subsequent contemplation. What the collection of essays displays most capably is a chronicling of behind-the-scenes clerkship operations and developmental changes that are ineluctably influenced by the personalities and interactions of the justices themselves. It provides the [*143] scholar of contemporary judicial politics and judicial process with an historical frame for understanding how the institution of the Supreme Court has functioned administratively over time. The volume offers a wealth of insights about Supreme Court clerking, some idiosyncratic and some potentially generalizable; the volume’s stimulation lies in its implicit proposal that its readers ask and investigate which insights are which.
© Copyright 2012 by the author, Nancy Maveety.