A Remembrance: Mr. Justice Brennan - October Term 1960

RICHARD S. ARNOLD

From July 1960 to July 1961 I served as law clerk to Mr. Justice Brennan--maybe the best job I ever had. In those days, each of the Justices, as a rule, had two law clerks. To this rule there were two exceptions: Justice Douglas had one, and the Chief Justice had three. Instead of a second law clerk, Justice Douglas had a second secretary, and the word among the law clerks (possibly, as a class, the greatest gossips the world has ever seen) was that he needed two secretaries, not for court work, but to help him type his books. The extra complement for the Chief was due to the fact that his office had special duties in connection with what was then called the Miscellaneous Docket, made up mainly of in forma pauperis cases. The Chief also had the services of the law clerk for the retired Justices (Reed and Burton), neither of whom was then doing any judicial work of his own, so far as I knew.

I did not meet Justice Brennan until I came down to Washington to start work. One did not apply for a clerkship then. At least, one did not apply to Justices Frankfurter and Brennan, and they were the Justices I knew the most about, since I was a student at the Harvard Law School, which both of them had attended. Justice Brennan's law clerks were selected by Paul Freund, at that time Carl M. Loeb University Professor and certainly one of the leading figures of this century in the study of constitutional law and the history of the Supreme Court. (He was also General Editor of the Holmes Devise History of the Supreme Court of the United States.) Justice Brennan's confidence in Professor Freund was so great that the task of choosing law clerks was delegated entirely to him.

If you were picked, Mr. Freund called you into his office and asked you if you wanted the job. This occurred without warning and without any gathering of resumes, references, transcripts, or the like. The Frankfurter clerks were selected, much, I suppose, in the same way, by Professor Albert M. Sacks, who later became Dean of the Law School. Justice Frankfurter usually insisted on law clerks who had already served with a court of appeals, but Justice Brennan had no such prerequisite.

So, in December of 1959, the middle of my third year, I was called to Professor Freund's office, offered the job, and accepted on the spot. A letter from Justice Brennan confirming the appointment came in due course. What a contrast this is with the present-day system, which appears to me, from the admittedly imperfect vantage point of an inferior court, to be chaotic, degrading, and nerve-racking, especially to the applicants for clerkships. (Warning: this piece suffers from perhaps the most common vice of reminiscences--the feeling that things were wonderful in the past and have declined steadily ever since.)

What was Justice Brennan like as a boss? No one, I guess, is perfect, but I really cannot remember a single reason to complain about the Justice, his approach to the law, his relationships with the other members of the Court, or the way he treated his law clerks. In addition to the two law clerks, there were two other staff members in chambers. Mary Fowler, now Mrs. Brennan, was the Justice's secretary. Olyus Hood was his messenger. Mr. Hood had a small desk in one corner of the room where Mary also worked. He had a wonderful sense of humor and was especially good at calling the White House, the Mint, and other parts of government to arrange tours for visiting friends and family, always announcing himself impressively as calling from Justice Brennan's chambers.

No one told us how to do the job. One of our immediate predecessors, Jerry Nagin, was still in the building when we arrived (my co-clerk was Dan Rezneck), and Jerry gave us some useful pointers, but there was nothing like an orientation program, a law clerks' manual, or similar formal indoctrination. The Justice expected us to arrive fully equipped and ready to go to work. Either we lived up to his expectations, or he was too tolerant to point out otherwise. To say that he was unfailingly kind and courteous, especially to subordinates, would be an understatement. He was delightful to be around, and simply to be in his presence was an education. If he found something to criticize, either in one of the multitudinous cert. memos we did, or in a bench memorandum, or in a draft opinion, he did so gently. (This was not true in all of the other chambers, we heard.)

We spent a good deal of time with him outside the Supreme Court Building. On most days, we drove back and forth to work with him. All three of us, the Justice and the two law clerks, lived in Georgetown, and we used to pick him up at his house on Dumbarton Street on most mornings. We talked about cases and legal problems all the way into work and all the way home. We did not normally work at night, at least not at the Court itself, but we did work regularly on Saturday mornings, and we would usually eat lunch on Saturdays at the Methodist Building, across Maryland Avenue from the Court. Sometimes in the afternoon, when one of our own cars was not available, one of the messengers would drive us home in a Court car. This was always a thrill, especially as there was a vague hint of wrongdoing about it. Apparently some statute forbade the use of Court cars for personal purposes, and someone had classified going to and from work as "personal." As a result, the Deputy Assistant Secretary of something or other who lived near the Justice on Dumbarton would be picked up every morning by a government car and driver to be taken to the Pentagon, while an Associate Justice of the Supreme Court of the United States had to ride in a law clerk's rattle-trap.

What about the relations among the members of the Court? There was a great deal, of course, that the law clerks knew nothing about. No one was allowed in the Conference except the Justices themselves, and no record, in the formal verbatim sense, was made of the Conference. But the Justice would always sit down with us and go over his notes when he returned from Conference. (Actually, to say "always" is an exaggeration: I remember well a few times when he would come back from Conference on Friday afternoon and be too tired to talk. He would just hand his notebook to us and let us find out for ourselves what had happened. At the time, I didn't understand what made him so tired. How could it be tiring to sit in a room and talk about the law with eight other people? Having now suffered through a few thousand conferences involving anywhere from three to twelve judges, I know what made him so tired.)

The closest relationship Justice Brennan had was with the Chief Justice. The Chief, as we called him (though not to his face), would come around to see Justice Brennan on Thursdays before the Friday conference. They would go into the Justice's inner office and close the door. We learned that they were going over the conference list for the next day. Of course we did not know what happened during these meetings, but we did know that Justice Brennan and Chief Justice Warren voted together more than any other two members of the Court. With the intellectual arrogance typical of law clerks, we assumed that the Chief Justice was "getting his directions," or words to that effect, from Justice Brennan, and maybe he was, in some sense, but the relationship between them was warm and friendly, and they were a great team. You could not meet Chief Justice Warren even once, incidentally, without realizing what had made him such a successful politician. (He had been, for example, elected governor of California as the nominee of both the Republican and the Democratic Parties.) His entire attention was focused upon every person he met, however outwardly insignificant. Nor was there any hypocrisy in this attitude. He was a considerate gentleman in every sense of the word, and he was able to show it.

Next door to us was Justice Frankfurter, who had not only attended but also taught at the Harvard Law School. One of his students, Class of 1931, had been William J. Brennan, Jr., and we imagined, not without some reason, that Justice Frankfurter had hoped that Justice Brennan, once joining the Supreme Court, would become one of his disciples. This did not come to pass, and we gathered that "Felix," as we familiarly called him in private, had been perhaps a little patronizing of our boss at the beginning. In any case, by the time I arrived, four years after Justice Brennan came to the Court, the relations between him and Justice Frankfurter were cordial. Justice Frankfurter, in fact, would sometimes stop in our law clerks' office to talk to Rezneck and me. Justice Frankfurter did not walk and talk; he bounced and bubbled. He enjoyed debating the law and talking about everything under the sun.

Each year Justice Frankfurter would have a black-tie dinner at his house and invite all of the law clerks who had been to Harvard. In the 1960 Term, there were five of us out of a total of eighteen--two with Brennan, two with Frankfurter, and one with Harlan. Also at the dinner were Tony Amsterdam, a third, unpaid Frankfurter clerk, from Penn, and Charles Fried, a Harlan clerk, from Columbia. Harlan clerks, we joked, became "honorary Harvard men," because Harlan was so close to Frankfurter. Indeed, the Harvard Law School made Justice Harlan a member of its Visiting Committee, in preference to Justice Brennan, which was a great mistake, in my opinion. I say this not out of any lack of respect for Justice Harlan, but simply because "the" Law School did not treat Justice Brennan very well at first, possibly on account of the fact that some of the faculty did not agree with him. Harlan was the soul of dignity. He deserved the title of "august" if anyone ever did. And yet, when Justice Brennan saw him in the halls, he would say delightedly, "Hiya, Johnny." I do not believe that anyone else, including his mother, ever called Justice Harlan "Johnny."

The Court family had many more member than just the Justices, the law clerks, and the other immediate chambers staff. There was a secretarial pool, a Marshal's office, and a char force, the people who make the building work, and without whom there would be no functioning Court. There was also a police force, though nothing like the present apparatus which modern security seems to demand. Justice Brennan appeared to know all of these people by name. He spoke to them, and they spoke to him, and there was respect on both sides.

The day in July of 1961 when I left Justice Brennan's chambers for the last time as an employee was one of the saddest in my life. I remember and cherish the job not primarily because of the intellectual aspects, the arguments over legal principle, and the like, though these were indeed impressive for a twenty-four-year-old baby lawyer, but rather for the personal association. Justice Brennan is a special person. He never lost sight of the human dignity of every other person--even including law clerks. (Occasionally, as always happens with lawyers, we would disagree about something, but this never disturbed the Justice. He knew that only one person in our office had a vote.) One learns a lot from books, and law students learn almost exclusively from books--or, in these latter days, from computer screens. But one learns also from people. To watch Justice Brennan, to be in his presence almost every day, and to work under his direction--all of these were priceless opportunities. Hardly a day goes by when I do not think of something he said or did. "He hath a daily beauty in his life."[1]

Endnotes

1. Othello, act V, sc. i, 1. 19.