From clerk to Justice

By Anna Christensen
on May 19, 2010 at 10:54 am

The following essay was written by Laura Krugman Ray, a Professor of Law at Widener University School of Law.  Professor Ray specializes in the areas of the Supreme Court, civil procedure, legislation, Constitutional law, and election law, and is the author of Clerk and Justice: The Ties that Bind John Paul Stevens and Wiley B. Rutledge (Connecticut Law Review 2008).

In recent days a number of Justice Stevens’ Supreme Court distinctions have been mentioned: he is one of the longest-serving Justices in the Court’s history, one of its oldest members (second only to Justice Holmes), and the only military veteran currently serving.  But he can claim as well another distinction: membership in the small fellowship of five Justices who began their legal careers as Supreme Court law clerks. Like two of his present colleagues – Chief Justice Roberts and Justice Breyer – and two of his former colleagues – Chief Justice Rehnquist and Justice White – Stevens spent a year behind the scenes, assisting in the work of the Court.  The year was the Court’s 1947 term, and the Justice he assisted was Wiley Rutledge. Although the issue more often pondered in recent years has been a law clerk’s influence on a Justice, it is worth noting that, when circumstances place a former clerk on the high court, influence can flow as well in the opposite direction.  In the case of Stevens and Rutledge, there are signs that their shared year did in some ways help to shape Stevens’ definition of his judicial role.

Writing when he was still a Chicago lawyer, Stevens himself described Rutledge as “a teacher” and wrote warmly of some of the lessons learned from the clerkship.  He praised Rutledge’s painstaking work in preparing his often lengthy opinions, his ability to see multiple sides of an issue, the integrity expressed through his frequent authorship of clarifying separate opinions, and his careful scrutiny of cases that at times produced surprising outcomes for a Justice regarded as a liberal stalwart.  Some of this sounds familiar.  Stevens too has been noted for his willingness to evaluate each case on its merits, for the strain of unpredictability that has challenged those who thought they had him pegged, and of course for his own frequent concurrences and dissents.  He has described Rutledge as “literally forced” by his conscience to write separately in order to make clear “the real basis for his vote” even when joining a majority result.  That point as well could easily be made of Stevens’ own record.  There is, though, at least one practice on which Rutledge and Stevens clearly diverge.  Stevens has shown a preference for short and pointed opinions rather than the elaborate opinions for which Rutledge was known.  That too may have been a lesson learned: for a Justice who feels compelled to make the basis for his own positions clear, the shorter opinion may well prove to be a more effective and efficient tool.

Stevens also seems to have learned from his own clerkship how best to organize his chambers.  Rutledge was very much a hands-on Justice who not only wrote his own opinions but also spent long late-night sessions with his clerks reviewing all of the certiorari petitions on the calendar for the next day’s conference.  Those practices did not signal a lack of confidence in his clerks; on the contrary – Rutledge encouraged his clerks to make their own views heard, at times with high volume and intensity, in shaping the best possible opinion.  Stevens has adopted some of these practices, while also adapting them to the Court’s changed conditions.  He is rare among current Justices in writing his own first drafts, which he then gives to his clerks for their comments.  Though the size of the current Court’s docket makes personal review of cert. petitions impossible, he has chosen to rely on his own clerks’ recommendations rather than joining the Court’s cert. pool. One of his former clerks has observed of Stevens’ relationship with his clerks that “I can imagine few bosses so interested in the views of their employees, so prepared to engage in free-flowing debate, and so enthusiastic to be proven wrong.”

Just as Stevens has adapted the Justice-clerk model of his own early experience to the demands of the current Court, so too has he forged his own approach to opinion writing.  Where Rutledge tended to write in an often detailed and repetitive style, Stevens has shaped a very different voice, one that speaks in plain diction, avoids rhetorical flourishes or harsh criticisms, and ends as soon as it has made its point.  As a result there are relatively few highly quotable lines from the large body of his opinions, although those few make their point with vividness and economy: “the difference between a ‘No Trespassing’ sign and a welcome mat” in his Adarand v. Pena dissent  to distinguish discriminatory from acceptable affirmative action policies, or, most recently, the pungent conclusion from his Citizens United v. FEC dissent observing that “[w]hile American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”  Most often, though, what readers tend to remember from a Stevens opinion is not the clever turn of phrase but the clarity of language, the civility of tone, and the distinctive quality of mind that informs his jurisprudence.

Stevens, then, drew multiple lessons from his clerkship with Rutledge.  He appreciated Rutledge’s use of separate opinions, insistence on drafting his own opinions, and confidence in his law clerks.  But Stevens also developed his own approaches to the cert. review and opinion writing tasks that define a Justice’s role.  Perhaps, though, Rutledge’s most important lesson for his clerk was the independence of mind reflected in both the substance and the form of a Justice’s opinions.  If that was the lesson, then Stevens long ago mastered it and made it his own.