system and represent a formative compo-
nent of the jurisprudence that emerges
from the Court’s decisions. Six justices
(William Rehnquist, John Roberts, John
Paul Stevens, Stephen Breyer, Elena Kagan,
and Byron White) have gone from clerking
for a justice to being appointed to the
bench. The days when the clerk was more
personal assistant and office helper are long
gone. The clerks individually and as a group
now represent their own element of the
Court’s core operations and are another
voice that justices take into account in addi-
tion to any other “Tenth Justice.”
Ruth Bader Gins-burg attended Cornell, Harvard, and
graduated from Columbia Law School
at the top of her class. According to her
biographer, Justice Frankfurter did not
offer her a clerkship because she was
a woman. She would later win several
landmark cases before the Court in favor of women’s rights.
Justice Frankfurter did hire the
Court’s first black clerk, William Cole-
man, in 1948.
The Tenth Justice
That is the ominous title of a popular
suspense novel by Brad Meltzer about
a young Supreme Court clerk who
unwittingly reveals the outcome of an
upcoming decision by the Court to
an unscrupulous lawyer who illegally
profits from the advance information.
Was the plot borrowed from a true case? In the early 1920s, a clerk for Justice McKenna,
Ashton Embry, was indicted for allegedly revealing the Court’s upcoming decision in
United States v. Southern Pacific, which information was passed on to Wall Street specu-
lators. Embry was exonerated when he showed he was not directly involved.
Because of concerns about clerk confidentiality, Chief Justice Rehnquist created a
Code of Conduct that all clerks must subscribe to. In addition, the Court uses a “burn
bag” for the destruction of drafts and memos that are not to be made public.
Who knows, but in today’s world of cyber-security and encryption, perhaps the next
Court mystery novel might involve a mastermind able to hack into the Court’s drafts
and final opinions.
evenly. When the number of incoming peti-
tions approached several thousand per year,
there was even a greater need to better use
all available clerk time.
In the early 1970s, Justice Lewis Powell
suggested the creation of the “cert pool,”
which a justice could choose to participate
in, where all the clerks would divide up all
petitions and IFPs and circulate a summary
that included a “GRANT” or “DENY” recommendation for the justices to consider.
Historically, not all justices have joined the
pool, some feeling that an independent review is a proper check on the accuracy of the
procedure. Thus, even though not all justices participate, without doubt, the cert
pool is squarely within the domain of the
law clerks and functions as a funnel point
with the potential to affect which cases will
be accepted for merit review.
This is especially true when one realizes
that as of now, the Court only grants review
of less than 1/100th of one percent of all
petitions filed. (Justice Stevens once stated
that he probably did not read 80 percent of
the papers filed with the Court.) Because the
Court is guarded on revealing details of how
memos and opinions are created and because
the clerks are bound by an oath of confidentiality, the question that remains unanswered
is to what extent the clerks affect the justices’
final decisions. The inference from interviews
and the personal papers suggests that the
clerks do play a role in drafting, shaping, and
directing the content of the Court’s opinions.
One item is certain: As the Court has
grown and changed, the Supreme Court
clerks function now within a well-structured