Denver Bar Association
July 2007
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Courtiers of the Marble Palace

by Harvey Gee

Reviewed by Harvey Gee

For many attorneys and law students, the opportunity to clerk for a U.S. Supreme Court Justice is the opportunity of a lifetime. These highly coveted and sought-after clerkships are the keys to the doors of power. In Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Marble Palace), Professor Todd C. Peppers, who teaches public affairs at Roanoke College, reiterates these sentiments in explaining why a Supreme Court clerkship is an invaluable stepping-stone to future glory: "Former law clerks have held cabinet-level positions in presidential administrations, authored textbooks read by generations of law school students, assumed the stewardship of our nation’s oldest law schools, and donned the black robes of a Supreme Court justice."

In the Marble Palace, Peppers offers a comprehensive look at the role these clerks play at the Supreme Court. The well-written book is illuminating — not only about the nuts and bolts of being a Supreme Court law clerk, but also about the third branch of government, which remains a mystery to many around the world. Each section of the Marble Palace is concise, and each chapter logically leads into the next part. It is well-organized, allowing the reader to skip to sections of particular interest.

Although all judicial clerkships with the federal Bench are prestigious, and the competition of securing any federal clerkship is keen, a Supreme Court clerkship remains at the top of the hierarchy. Some serious Court-watchers have even become so enamored with Supreme Court clerkships that they have created a website devoted to information, rumor and gossip about the Justices’ incoming and outgoing clerks. The elite group of Supreme Court law clerks are selected from the best law schools, and are expected to have trained for their clerkships by first clerking with well-known and trusted federal appellate court judges (often known as a "feeder court" judge). Recently, law clerks also have come from top law firms or elite government posts between clerkships with lower federal court judges and Supreme Court Justices.

Today, each Justice has four law clerks. A law clerk routinely edits, drafts and revises judicial opinions; reviews, analyzes and summarizes certiorari petitions; and prepares Bench memoranda. Undoubtedly, the modern law clerk has become an integral part of the Supreme Court.

A law clerk’s job is daunting. Peppers offers insights about what we do not already know about law clerks. Drawing from dozens of interviews, correspondence with former clerks and other Court insiders, and information found in the numerous personal and public historical documents, Peppers traces the evolution of the clerk’s role from a stenographer in the later nineteenth century to an integral assistant with many responsibilities today.

At the outset of the book, Pepper explains that one of the obstacles that he faced in obtaining information for his book was negotiating the code of confidentially about their work at the Court that law clerks are sworn to uphold. Not to be discouraged, Peppers insightfully covers the hiring of individual clerks, and the work of clerks on important decisions and how opinions may or may not have been shaped by them.

Peppers surveys the past 120 years during which law students have served individual Justices at the high court. The role of political ideology in the selection process of clerks is of interest to many court observers. Peppers confirms that historical information available suggests that most of the Justices tend to hire clerks who share the same political views and judicial philosophies. There are exceptions, like Justice Breyer, who would occasionally hire one law clerk who leaned in the opposite political spectrum in an effort to be inclusive.

Historically, most Supreme Court law clerks have been white males. Only in the last few decades have more women and racial minorities been hired by the Justices. Perhaps this is reflective of the pool of students at law schools. Nonetheless, diversity remains underrepresented at the court today. Justice William O. Douglass hired Lucile Lomen, the first female law clerk, in 1944. As Peppers points out, this was largely motivated by a shortage of male law students during World War II rather than as an effort to address equitable hiring. The first African American law clerk, William T. Coleman Jr., was hired by Justice Felix Frankfurter during October Term 1948. Justice Thurgood Marshall hired Karen Hastie Williams, the first female African American law clerk during OT 1974. Pepper misses an opportunity to present a broader discussion of the issue of minority law clerk hiring. It would have been worthwhile if Peppers had at least touched on the attitudes of the Justices themselves concerning the need for greater diversity on the Court.

To my surprise, the book lacks a section that addressed the law clerk culture at the Court. In particular, Pepper could have spoken about the relationship between the clerks from the different chambers. As a former federal law clerk, I wanted to know about the law clerk culture in the past and present. I also was curious about the recruiting process of law clerks who move on to law firms after the end of their clerkship. It would have been illuminating to learn about how former Supreme Court law clerks are received in law firms compared to other associates who did not clerk at the high court. Despite these minor contentions, Marble Palace succeeds in unraveling some of the mystery about the Court and its clerks, and it is recommended reading for anyone interested in the Supreme Court and the important role that law clerks play at One First Street.

Harvey Gee is the deputy public defender at the Office of the State Public Defender, Boulder Regional Office.

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