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SCOTUS for law students: Questions about the Court after Justice Scalia’s death

Justice Antonin Scalia’s death left many questions, large and small. Some of those questions focus on the operation of the Supreme Court. This column will try to answer a few.

Question: What happens to Scalia’s current law clerks?

Scalia had four law clerks who have been working for him since last summer and who were hired for a one-year term to run until next summer. As is typical of Supreme Court law clerks, their role included: reading petitions for certiorari and summarizing them for those Justices who share this responsibility; preparing Scalia for oral argument; writing first drafts of Scalia’s opinions and rewriting or updating subsequent drafts to reflect his edits and additions; reviewing the draft opinions of other Justices with Justice Scalia; and other projects on which Scalia may have been working.

By Supreme Court custom and tradition, the four law clerks will be absorbed by the chambers of other Justices and will be allowed to finish the Court Term. As a result, it is likely that several Justices will have a fifth law clerk for the next five months into July after the Court Term ends.

This will present them with some challenges and adjustments. Scalia told a law student group in fall 2014 that he took pride in the fact that his law clerks over the years had learned to imitate his writing style, even his very unique forceful, colorful, and acerbic style of dissenting opinions. The clerks will have to adapt to new ways of doing things.

The four clerks may also have some responsibilities for helping to organize Scalia’s papers, assuming that those papers may be donated to an archive in the future. This issue is discussed more below.

Who are the clerks? The three men and one woman hail from law schools at the University of Virginia, Chicago, Northwestern, and Harvard. All four clerked for federal appeals court judges before going to work for Scalia, and two also clerked for a federal district judge. Three graduated from law school in 2013 and one in 2011.

Question: What will happen to Scalia’s future law clerks?

The fate of Scalia’s future law clerks is less certain. Justices hire clerks at different times of year and with different amounts of leeway before they would start work. Scalia had hired three men and one woman to begin work in summer 2016.

Based on past practices, they are not guaranteed a clerkship for the next Court Term. They will be considered on their merits by other Justices, but of course they come bearing very impressive credentials and the recommendations of the judges for whom they have clerked. In the past, some future clerks in a similar situation had to wait a year before being hired by another Justice, but some never made it to the Supreme Court.

Question: What happens to Scalia’s staff and chambers?

The Court will give a grace period in which Scalia’s staff may stay on the payroll and remain in his chambers. During this time, presumably the staff and Scalia’s family will be clearing out the office suite, deciding what to do with the many personal mementoes that have accumulated during nearly thirty years at the Court, and organizing files and papers.

A Justice typically has one or two secretaries and a messenger. Those staff members are likely to be given the opportunity to apply to move to other open positions at the Court, if they are so inclined.

Each Justice has an office suite, their chambers, that usually consists of three or four rooms: the Justice’s office, an outer reception room where the secretary sits, a room for files and perhaps for the messenger, and a room for law clerks. Some law clerks usually work in that fourth room, while others have office space one floor up. After a suitable grace period, Scalia’s chambers may be offered to other Justices, by order of seniority, should anyone care to move. If no one moves, then Scalia’s chambers will eventually go to the next Justice.

Question: What happens to Scalia’s papers?

Supreme Court Justices are completely free to dispose of their papers in any way they like. Unlike presidents, there is no statute governing the disposition of the Justices’ files. Their options range from destroying everything to preserving some or all of their papers. They may deposit the papers anywhere they choose that will accept them, and they may decide when the papers should become available, ranging from immediately to many years in the future.

A typical collection of Court papers includes case files which show draft opinions and exchanges of views among the Justices. It may also include memos on petitions for certiorari, notes taken at the Justices’ conferences (at which they discuss and vote on cases), internal communications on cases between a Justice and the law clerks, correspondence, background on other issues, materials for articles, books and speeches, and more.

By far the largest collection of the papers of Justices is housed at the Manuscript Division in the Madison Building of the Library of Congress in Washington, D.C. But some Justices have donated their papers elsewhere: Chief Justice William Rehnquist gave his to the Hoover Institution at Stanford University; Justice David Souter donated his to the New Hampshire Historical Society; and Justice Lewis Powell gifted his collection to Washington and Lee University Law School.

Scalia apparently made no decision about what to do with his papers – which, if he saved everything, would be a vast collection after twenty-nine years. Sources at the Library of Congress had no information about Scalia’s plans. That means that his family will need to determine what to do, presumably trying to ascertain what Scalia would have preferred for disposition of his files and what restrictions should be placed on them if they are to be preserved.

Question: How long will Scalia be mourned at the Court?

The flags at the Supreme Court will fly at half-staff for thirty days. Scalia’s chair and place on the bench in the courtroom have been draped in black according to longstanding custom. The drapings are expected to remain in place for thirty days.

Once the memorial drapings are removed, the Justices will play musical chairs on the bench, since they sit by seniority. Chief Justice John Roberts will stay in the center seat as the most senior member of the Court. But as one views the bench from the public seats facing the Justices, the old seating lineup was: Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Scalia, Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito, and Elena Kagan. The new alignment will be: Kagan, Alito, Ginsburg, Kennedy, Roberts, Thomas, Breyer, Sotomayor, and the next Justice.

Question: What happens to the Court’s schedule?

The Justices skipped their conference last Friday because Scalia was lying in state in the Great Hall on the first floor of the Supreme Court. The petitions and argued cases that they did not get to discuss last Friday will be added to the agenda for their conference tomorrow.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Questions about the Court after Justice Scalia’s death, SCOTUSblog (Feb. 25, 2016, 1:28 PM),