Learning Many Things as a Law Clerk to Justice John Marshall Harlan

Learning Many Things as a Law Clerk to Justice John Marshall Harlan

Description

One can best appreciate what it was like to be a law clerk to Justice John Marshall Harlan by recognizing that he was, deep down, a practicing lawyer. He came to the Supreme Court in early 1955 with very little background in constitutional law. His first three years of legal study were at Oxford University, where as a Rhodes Scholar he studied jurisprudence and English common law and obtained the benefits of sustained and critical analysis from dons who were erudite but not conversant with American judicial opinions and trends. He received a “First” in jurisprudence at Oxford, finishing seventh in a class of 120. Harlan's sole year of legal study in the United States, at New York Law School, was part-time because he simultaneously started his long career as a litigator for a leading Wall Street firm, almost entirely in commercial cases. During World War II, he served as chief of the Operational Analysis Section of the Eighth Air Force, which was based in London and comprised of mathematicians, physicists, architects, electricians, and lawyers who provided technical advice on bombing raids over Germany. He spent less than a year as a Second Circuit judge before President Dwight D. Eisenhower appointed him to the Supreme Court. Harlan worked with extraordinary effort and tenacity, but at the start he needed help. In his early years he relied on Justice Felix Frankfurter, with whom he shared an affinity for Oxford and friendships among leaders of the bar who had been Frankfurter's students at Harvard Law School. He also relied heavily on his law clerks-masterfully delegating, supervising, editing, and, above all, forging a product that was distinctively his despite the important contribution of the clerks. By the time Harlan retired in September 1971, he was no longer merely a superlative lawyer; he was a Supreme Court justice with an unparalleled reputation. Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit, who first worked with Harlan as a young lawyer in the 1920s and 1930s, asserted that “there has never been a Justice of the Supreme Court who has so consistently maintained a high quality of performance or, despite differences in views, has enjoyed such nearly uniform respect from his colleagues, the inferior bench, the bar and the academy.” Paul Freund, a leading constitutional scholar during Harlan's time, expressed a similar accolade, writing that even students who disagreed with Harlan's position in a case “freely acknowledge that when he has written a concurring or dissenting opinion they turn to it first, for a full and candid exposition of the case and an intellectually rewarding analysis of the issues.” More than half of Harlan's law clerks were from Harvard Law School, because of his admiration for the school and for Henry Hart, almost surely the leading legal thinker of his era and the Harvard professor who chose Frankfurter's clerks. The rest were from other top-drawer law schools: Columbia, Michigan, Stanford, Virginia, and Yale. Harlan interviewed the finalists—in my case, at his country house in Connecticut—but he relied heavily on the recommendations of those he trusted, perhaps more than on his own reaction to a candidate after a short conversation. New clerks learned the ropes from reading the work product of their predecessors—their memoranda on all certiorari petitions (and the now vestigial notice of appeal) and bench memos on many argued cases. Harlan himself did not spend time, at least in my year, describing the duties of a law clerk to me and my co-clerk, Henry J. Steiner (October term 1957). In Harlan's later years several clerks stayed on for a second term with him, and they explained things to the new clerks. In those days there was no cert pool in which one clerk selected in rotation from the chambers of the justices in the pool wrote a memorandum for all the pool justices. Nor was there the kind of active clerks' “network” that emerged in later years. Naturally, there were many discussions of cases among the clerks, particularly in our private lunchroom, but I do not recall a thriving exchange of serious one-to-one conversations over the year. Harlan never asked me to find out what another justice was thinking about a case from one of his clerks or to advocate a position, but William T. Lake (October term 1969) reports that Harlan occasionally sent him as an emissary (but only to Justice Hugo Black). Harlan's chambers were a quiet place. I don't think I ever heard him raise his voice about anything, and while he was good-humored, there were no fun and games, as in some other chambers (Justice Byron R. White's golf putting, Justice William R Rehnquist's contests of all kinds). If I had to choose one word to describe Harlan, it would be “dignified;” in carriage, style, and dress (black old-fashioned suits, waistcoat complete with his grandfather's pocket watch). The other two descriptive words, often mentioned by law clerks, are “patrician” and “gentleman.”

Source Publication

Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices

Source Editors/Authors

Todd C. Peppers, Clare Cushman

Publication Date

2015

Learning Many Things as a Law Clerk to Justice John Marshall Harlan

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