Supreme Court stenographers: Law clerks and secretaries of an earlier era
on Mar 8, 2016 at 9:14 am
This blog recently featured a series of posts from former law clerks of the late Justice Antonin Scalia. They glowingly portray a stimulating professional and personal experience. Christopher Landau remembers regular conferences in which clerks actively argued and engaged with Scalia, while Danielle Sassoon recalls Scalia’s annual reunion, for which the “centerpiece of the evening was a roast.” If only we all could clerk.
It wasn’t always that way. In 1905, Justice David Brewer dismissed the role of his sole clerk as “simply a typewriter, a fountain pen, used by the judge to facilitate his work.”
For the Journal of Supreme Court History, Clare Cushman reviews the practices and lives of clerks – with some choice anecdotes – before the institutionalization of the “modern” clerkship model in the 1940s (which some earlier Justices pioneered, including Oliver Wendell Holmes, Louis Brandeis, and Benjamin Cardozo).
Justices following the “clerical” model had decidedly different priorities than one’s law school and professorial recommendations. (Many clerks were still completing their legal studies while working.) Far more important was whether one could write shorthand and take dictation.
Ambitious Leonard Bloomfield Zeisler learned this firsthand. Despite graduating with highest honors from the University of Chicago and completing six years in private practice at the prestigious Zeisler & Friedman (his father’s firm), Zeisler lost his job when the October Term 1918 had just barely begun. Chief Justice Edward White simply “could not use” him due to “his lack of stenographic knowledge.”
Fortunately for Zeisler, he soon found himself a position at the Department of Justice making double the salary (from $2,000 to $4,000). Adequate compensation was a constant struggle for clerks – who, Zeisler being an exception, could not generally expect significant post-clerkship raises and bonuses. Demonstrating both the insufficiency of the salary and the necessity of the services clerks provided, some Justices, including Chief Justice William Taft, sacrificed personal funds to supplement the meager congressionally approved salary the clerks received.
Not all of the Justices were so generous. Cushman relates the tale of Milton Musser, law clerk in October Term 1939 for Justice James McReynolds. In May, Musser secured a job that would begin in September, but he stalled several months before informing the Justice, lest McReynolds “kick like a mule,” as Musser wrote his mother, and deny him summer pay. McReynolds had stiffed others before, but Musser received his funds.
Perhaps financial stress excuses Ashton Embry, the “only clerk known” to have traded on insider knowledge about an impending Court decision. The day before the Court released its 1919 opinion in United States v. Southern Pacific Railroad Company, Embry loaned $6,000 to a co-conspirator, who, after taking an overnight train to New York, shorted the Southern Pacific stock. Embry received $600 from the scheme and an indictment by a grand jury, but the Justice Department dropped his case in 1929 for lack of credible witnesses.
Embry would go on to a successful career in baking.
The institutionalization of the “modern” law clerk in the 1940s emerged with the advent, among other developments, of female secretaries. By then, women occupied most secretarial jobs in the federal government; “it had come to seem degrading” for men to take dictation or type drafts. Some men did however continue in these positions, and Cushman indicates that they received higher salaries than similarly placed women. McReynolds in particular, believing that women should not work, refused to hire any.
Unlike the male stenographic clerks from the earlier era, most female secretaries did not study law or advance from the clerkship into a legal career. But Alice O’Donnell did. Beginning as a secretary to Justice Tom Clark in 1949, O’Donnell graduated from night law school at George Washington University in 1954 and “expanded the boundaries of the job beyond clerical support,” ultimately supervising the Justice’s chambers and serving as a “liaison between the Justice and his clerks.”
Farther afield, two other women began their own legal careers that same decade. Sandra Day (soon to become Sandra Day O’Connor) graduated from Stanford Law School in 1952; seven years later, Ruth Bader Ginsburg would graduate first in her class from Columbia Law School, but Justice Felix Frankfurter would reject her clerkship application because of her gender. O’Donnell retired from the Court in 1967, somewhat of an anomaly, but only fourteen years later Justice O’Connor would become the first woman on the bench. Another twelve years later, Justice Ginsburg would join her.
In 1922, Justice Mahlon Pitney hired a new law clerk, William Dyke, in what was perhaps the best – and easiest – decision of his life. The evidence is in Dyke’s modest graduation notice in his Georgetown Law School yearbook:
Handsome as Apollo, gentle as the evening zephyr, intense as the noonday sun, universal as a principle of brotherly love, ambitious but not vauntingly so, industrious beyond words to describe, and with Herculean intellect; what more could this student Ajax from the metropolis of our country wish from the generous hand of benignant nature? Of commanding presence and a natural leader, with warm handclasp and persuasive, winning smile, he is a born politician. A profound student of the law, Judge, as “Bill” is this early called, will some day elegantly adorn the Woolsack or rise to the highest pinnacle practicing at the bar. Rare, “Bill” Dyke! Student, a colossus, magna cum laude, among students! Truly, Judge, if we even in small measure approximate your worth, we shall conquer.
