I made Clarence Thomas laugh

It's not easy being a Supreme Court clerk. We ate pizza with Scalia and battled to sneak funny words into rulings

Published August 18, 2012 7:00PM (EDT)

  (Associated Press)
(Associated Press)

When former Supreme Court law clerk Edward Lazarus published "Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court" in 1998, curious readers bought the book in droves to find out what really happens behind the scenes at the nation’s highest court. The law clerk community, however, went nuts. Claiming that Lazarus had breached his confidentiality obligations to the Court, critics called his actions  “wrong,” “offensive” and a “betrayal.” One prominent sitting judge who previously clerked at the Court argued that Lazarus had violated several canons of the Supreme Court Clerk Code of Conduct as well as “the bond of loyalty to his Justice, the other Justices, and his fellow clerks.” Charges like this are enough to make any former law clerk hesitate to say just about anything about his or her time working at the marble palace.

On the other hand, the temptation to talk is strong. Whenever anyone finds out that I clerked for Justice Ruth Bader Ginsburg during the 1998-1999 term — whether it be a student, a newly made friend or just some random stranger that I’ve accosted on the street or in the men’s room — they inevitably want to hear about my experiences. What was it like working there? Was Justice Ginsburg nice? Is it true that Justice Sandra Day O’Connor made her clerks do aerobics? What does it feel like to sit shirtless in the chief justice’s chair screeching “Order in the Court” after four margaritas?

Lazarus published his controversial book right before I was about to start clerking, so coming in I had visions of a year filled with ideological tension, backbiting intrigue and wild gun battles on the Court’s spiral staircase. As it turned out, though, very little of the sort ever took place. Perhaps it was because our term was conspicuously devoid of any cases involving hot-button issues like abortion or affirmative action (the two cases I worked hardest on dealt with insurance fraud and the statute governing removal of cases from state to federal court), or maybe it was because the 36 of us who clerked that year were a friendly bunch, but the term was exceedingly quiet from an ideological perspective and involved few, if any, actual shootouts.

Before turning to my specific experiences, a few facts about clerking at the Court. Although the main character of Brad Meltzer’s best-selling 1997 thriller "The Tenth Justice" may have walked up the marble steps to enter the Court through its majestic bronze doors on his first day of work as a law clerk, the fact is that nobody who works at the Court ever, ever walks up those steps. It might be a nice idea, but do you know how many steps are out there? Somewhere in the universe of a fuckload, I would guess. The side door is much easier to use, as it has only four or five steps to climb at most, and the steps are small. Meltzer’s account turns out to have other errors as well.  For instance, although the novel’s protagonist might have worn his “lucky boxers” to work on that first day, the fact is that nobody who works at the Court ever, ever wears underpants.

Almost all the justices hire four law clerks. Most of the clerks come from a handful of top law schools. People are always asking me, “How did you get that job?” I tell them that the one thing in the world I’m actually very good at is taking law school exams. Indeed, I can write an essay about a complicated set of totally made-up facts under extreme time pressure as well as just about anybody. It turns out that this ability has no relationship whatsoever to being a good lawyer, being a good law clerk, being generally smart, or anything else, but it did go a long way to getting me my job at the Court. That and the fact that two of the professors I bribed happened to include Justice Ginsburg’s former constitutional law professor and a guy who was her husband’s roommate at Cornell.

Clerking at the Court was an intimidating experience. Part of it, of course, is that the clerks suddenly find themselves working on the nation’s most important cases only a year or two after graduating from law school. But one can easily make too much of this, since clerks do not render any decisions or write anything that does not get completely rewritten by the Justices. The real intimidating thing about working at the Court for me was being surrounded by 35 peers who were also excellent law school exam takers but who, unlike me, were genuinely brilliant and extraordinarily talented. Several of my colleagues are already famous. One helped draft the new Iraqi constitution; another has argued several cases in front of the Court and basically rewritten American criminal law. One is the three-time winner of the World Stratego Championship and recently sung the national anthem at the Pittsburgh Pirates’ home opener. That last bit’s a lie, but you get the idea.

What is it exactly that the clerks do? Well, besides giving endless tours to friends and family of the Court’s inner recesses — the courtroom, library, basketball court, tanning salon, IMAX theater, mid-size trout hatchery, etc. — they do basically three things. First, most write what are called “cert memos,” which summarize the petitions for certiorari (about 7,000 petitions come in each year; the Court grants about 100 of them) and recommend either granting or denying each one. The justices generally look for cases that present important issues of federal law upon which lower courts have disagreed. A decision that is either “factbound,” meaning that the result turned on the lower court’s application of facts to law rather than its resolution of a legal issue, or “splitless,” meaning that there is no disagreement among the lower courts, is unlikely to be reviewed.

Even if a case is neither factbound nor splitless, the Court will also deny the case if there is some procedural hurdle that would prevent it from actually addressing the important legal issue, or if there is some other hidden “vehicle problem,” unless, of course, the clerk screws up and recommends granting a case without having figured out that such a problem exists. Most years, the Court will mistakenly grant at least one case. When it “dismisses” the case as “improvidently granted” (commonly known as “DIGging the case”), the clerk at fault will feel like a total jackass, and everyone will look funny at the clerk and say things behind the clerk’s back like “that clerk is bad” or “that clerk sucks” or “have you noticed how ugly Wexler is?” This is, as you might imagine, the clerk’s worst nightmare, which probably explains why my entire year I didn’t recommend that the Court grant a single one of the 250 or so petitions I worked on, except for the one I screwed up and recommended the Court grant despite a massive and fairly obvious vehicle problem, which luckily one of my colleagues pointed out before the Court could consider the petition.

The second thing that clerks do is help the justices prepare for oral argument. All the justices use their clerks differently for this purpose. Most require their clerks to prepare “bench memos,” papers that range anywhere from three to 50 pages long, which summarize the parties’ arguments and offer the clerk’s own analysis of the relevant legal issues. Some justices discuss the cases intensely with their clerks; Justice Ginsburg -- RBG -- tended to do relatively little of that (clerks generally refer to the justices by their initials). In fact, one of the great things about my job was that, being generally brilliant and having been on the bench for 20 years already, RBG basically knew everything already and could make up her mind about a case without much help from her clerks at all. This made the job fairly easy. Some Ginsburg clerks have been known to work 16-hour days, but I honestly can’t imagine what they spent their time doing. As for me, I generally worked from 9 to 6 and spent my lunch hours at home in my rat-infested Capitol Hill apartment watching reruns of "Good Times." Dy-no-mite!

Third, the clerks usually write a first draft of the opinions that their justice has been assigned to write. Some people find this shocking, but it really is not that big a deal. At least in Justice Ginsburg’s chambers, the boss would give us a detailed outline to work from and then, once we turned in our drafts, totally rewrite them.  The best you could really hope for as a clerk is to get a little pet phrase or goofy word or other quirky something-or-other into the final opinion. For example, there may or may not be one Ginsburg opinion from our term which, when read backward, will summon the demon Beelzebub from the seventh level of hell to earth where he will horribly murder the entire human race. On a more innocuous note, when Justice Anthony Kennedy was assigned to write an opinion concerning the import tariffs applicable to permanent press pants baked in giant pants ovens in Mexico, my co-clerk Bill and I worked very hard to convince the Kennedy clerk working on the case to get the words “trousers” and “slacks” into the final opinion. “Trousers” made it into the U.S. Reports, but “slacks” is absent, although whether this is because the clerk failed to put it in his draft or because Justice Kennedy took it out we cannot be sure.

What about RBG herself? Usually the first thing people ask me about her is whether she is really as short as she seems in pictures. It is true that Justice Ginsburg is short, maybe even quite short. But listening to people who haven’t met her talk about how short she is could lead you to believe that she is some sort of miniature person who could fit in your shirt pocket or the palm of your hand. In fact, she cannot fit in these tiny places. The second thing people ask is whether she is as serious as she seems in interviews and public appearances.  Indeed, it’s true that RBG is an extremely hard worker who tends to be very businesslike when it comes to her job. For example, unlike other judges who might wander back into the clerks’ offices to chat about a case or do a few yoga stretches, if RBG wanted to talk to one of us about something, she would buzz us on our phone intercoms. The jarring BBUUUUZZZZZ interrupting our research or memo-writing or trout fishing or whatever would inevitably startle the hell out of us. Bill decided at some point during an early month that it would be appropriate upon hearing the buzz to drink a tall calming glass of scotch before picking up, and although we never actually got the scotch, we did regularly pretend to take a drink under these circumstances for the rest of the year. Indeed, to this day, if I happen to smell the perfume RBG used to regularly wear, I feel the need to get right to a fake bar, even if the woman who is wearing it is just a friendly nun I happen to be tickling at the time.

Nonetheless, people often overstate RBG’s seriousness. As I once showed in a profoundly flawed scientific study of Supreme Court humor, for example, Justice Ginsburg gets infinitely more laughs from the bench with her jokes than Justice Clarence Thomas does. As I also pointed out in that article, RBG, contrary to popular opinion, does in fact laugh herself. Not like a hyena or anything, but she does chuckle from time to time.  And then there was the time that she took us to a Gilbert and Sullivan production at a local high school and played along with the director’s invitation to come up to the stage during intermission to dance with some other cast and audience members. The sight of a Supreme Court justice on stage twirling around with her hands in the air to a goofy song next to a spinning 6-year-old girl is not one that I can soon forget, no matter how many times I undergo hypnosis.

Another thing people generally ask me about is whether I had any contact with the other eight justices.  The answer is not too much, but there is a nice custom at the Court whereby each justice’s group of clerks gets to take out each justice for lunch sometime during the term. We had pizza with Justice Antonin Scalia, Indian food with Justice Stephen Breyer, and classic American with Justice John Paul Stevens. The only justice we didn’t have lunch with was Justice Kennedy, because we were informed by his clerks that we would have to get dressed up to be seen with him in public.  Since we generally showed up to work in bathrobes and hair curlers, we declined the invitation. I’m often asked about who is the most “normal” of the justices, and the easy answer is Justice Thomas. CT’s jurisprudence may threaten to send the nation back to the middle ages, but he did seem like a genuinely friendly and kind and down-to-earth person, and I say this not just because he laughed at my “Why-did-the-guy-get-fired-from-the-orange-juice-factory?-Because-he-couldn’t-concentrate” joke.

So, how would I summarize my year clerking for RBG? Nearly any clerk will tell you that working at the Court is an unforgettable experience and that it was a privilege to work on the nation’s most important legal issues with one of the nation’s greatest jurists. I’m sure I would say the same thing if I wasn’t such an ass. It is true that I will probably never have another job that will come close to equaling the excitement of that year, and I do owe Justice Ginsburg a lot for (inexplicably) hiring me to be her law clerk. But when someone asks me what I remember most clearly about the year, I don’t think first of the legal issues or oral arguments. Rather, my mind leaps immediately to that one magical February night when, emboldened by four margaritas, I sat shirtless in the chief justice’s chair screeching “Order in the Court” over and over until the guards finally dragged me out those majestic bronze doors and threw me headfirst down the marble stairs.  Have I mentioned how many stairs are out there? Damn, that hurt.

By Jay Wexler

Jay Wexler is a law professor at Boston University.

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Related Topics ------------------------------------------

Antonin Scalia Clarence Thomas Ruth Bader Ginsburg Supreme Court