Ohio State University Professor James Brudney dismissed accusations that Supreme Court clerks and their biases can influence the opinions of the justices they serve during a speech last night in the Rockefeller Center.
"Ultimately, clerks are agents of the justices," he said. "The reality is justices, not clerks, decide these cases."
He said books like "The Brethren" and "Closed Chambers" are "departures from reality" that emphasize juicy gossip, bitter feelings and big cases that are not part of the daily experience of most clerks.
Brudney said unlike the cynical clerks portrayed in bestsellers about the Court, new clerks are awestruck and scared when they start their jobs.
Brudney described the application and selection process for Court clerks, who are chosen after completing law school and clerkships for lower court justices.
Each justice has a different way of selecting clerks, Brudney said.
He said justices select young lawyers for year-long tenures because young lawyers are energetic and used to dealing with a variety of legal issues.
Brudney agreed on a lesser level with some criticism of clerks. While he said egos of clerks do not drive them to write long briefs, he conceded some clerks do write long pieces.
Clerks' writing styles are also less colorful than those of the justices, Brudney said.
Brudney, who clerked for Justice Harry Blackmun from 1980 to 1981, called his year-long tenure "an intellectual bootcamp for new lawyers."
Brudney said he took only three days off all year. He worked eight hours or more each day seven days a week.
Most justices have three or four clerks. If there were more, the Court would lose the intimacy of the clerk-justice relationship, Brudney said.
He said the relationship between clerk and justice was a unique one, but that the relationships between fellow clerks were "the unsung virtues of the experience."
Clerks would eat meals, play basketball, carpool and debate law and current issues together, Brudney said.
Clerks' long weeks are filled with three main tasks: reviewing petitions that decide which cases the Court will hear, writing bench memos that summarize the cases being heard and drafting opinions, the justifications of the judges' decisions.
He stressed the need for clerks to be "scrupulously neutral" in summarizing case arguments, and said that those clerks whose writing displayed bias were taken less seriously by other clerks and the justices.
He said capital punishment cases commanded the most immediate and urgent attention by all justices.
Most clerks are conservative in deciding whether or not to recommend a case be heard before the entire court, Brudney said.
When he was a clerk, the two principle conditions in recommending a hearing were conflict in lower courts about the issue and the importance of the issue itself, he said.
When an audience member asked how he would reform the clerk system, Brudney said he would recommend working no more than 359 days a year.
He also said more interaction between clerks and the justices they do not directly serve would be helpful and a good learning experience.
Brudney's speech was cosponsored by the Daniel Webster Legal Society and the government department.
