"De Minimis," or, JUDICIAL POTPOURRI

 

The Judicial Robe

S. James Clarkson

The wearing of a black robe by judges was a custom utilized more by the judiciary in the United States than in other countries. Traditionally, black signifies death and mourning.

It had never occurred to me that the research I had conducted would serve me in such good stead when I was elected to the judiciary. 1 chose the color red for, as I discovered in my research, red was the color most widely used by jurists in England and Canada as well as France. It was also rooted in the history of the English judiciary, from whence comes most precedent for the law as it is practiced in the United States. Our adoption of the English legal system without its traditional judicial garb poses the mystery. The question, "Why do you wear red?" was therefore replaced by the question "Why do judges wear black?"

Sir William Dugdale, in his chapter concerning the personal attire of judges, said "That peculiar and decent vestments have, from great antiquity, been used in religious services, we have the authority of God's sacred precept to Moses, 'Thou shalt make holy raiments of Aaron and his sons, that are to minister unto me, that they may be for glory and beauty.' In this light and flippant age (18th Century), there are men irreverent enough to smile at the habiliments which our judges wear in court, for the glory of God and the seemly embellishment of their own natural beauty."[1]

There is considerable difficulty in determining the origin and history of the use of judicial robes and their color. There is consensus; however, that English judges of the present day wear robes worn by their predecessors. Some judges wore different vestments varying with their particular offices and whether or not it was summer or winter. These robes were of fur and silk and were embellished with collars and cuffs of various shapes and forms.

In the eleventh year of Richard II, a distinction was made between the costumes of the chiefs of the King's Bench and Common Pleas and their assistant justices.[2] At that time each of the assistant justices wore green robes in the summer; and in the twenty-second year of Henry VI, Chief Baron John Fray received "for his winter robe against Christmas, 'x' ells of violet in grain; trimmed with various minever." The same judge received "for his summer robe, against Whitsuntide, ten ells of green cloth long, and half of a piece of green tartarin." The three other Barons of the Exchequer at the same time had "for the like summer robes, each of them ten ells of violet likewise trimmed in minever fur."

The various hues and colors of the robes and those used by the judiciary and the lawyers indicate such a diversity as to cause John Cordy Jeaffreson to write in part of his book entitled Costume and Toilet, "These notes are sufficient to prove that judicial costume varied with the fashion of the day or the whim of the sovereign in the 14th and 15th Centuries."[3] And, as an interesting comment, he cites that . . . "In the time of Charles I, questions relating to the attire of the common law judges were involved in so much doubt, and surrounded with so many contradictory precedents and traditions, that the judges resolved to simplify matters by conference and unanimous action." The result of their deliberation was a decree dated June 6, 1635.[4] It is the only decree I know of, other than one proposed by the new Michigan Court Rules, determining the type and color of robes to be used by the judiciary. The decree of June 6, 1635 provided the various colors and kinds of robes to be used for the respective "Holydayes" and terms of court. Scarlet, of course, was the favorite color, trimmed in various kinds of furs and other adorning trims. Violet was another favorite color, trimmed with black and faced with taffeta. Other trim commonly used with the various colors was velvet.

With the advent of the "Sergeants-at-Law," wherefrom the judges of the King's Bench and the Common Pleas and the Exchequer could only be chosen, the fashion of the bar was similar to the formal dress of the judiciary, and in Nicholas Sellers' article entitled "Sergeants at-Law," printed in the Pennsylvania Bar Association Quarterly, June, 1965, it is stated as follows: "Lastly, the sergeants-at-law were known, as we have said before, as the Order of the Coif, and could be deemed in the nature of a very select fraternity. They called one another 'Brother'; even from the bench this fraternal form of address continued, since the judges were of course still sergeants. ('Bardell and Pickwick,' called the clerk of the court, 'I am for the plaintiff, my Lord,' said Mr. Sergeant Buzfuz. 'Who is with you, Brother Buzfuz?' inquired the Judge.) The Coif was originally a form of skullcap of white silk worn by the sergeants; when wigs came in fashion, a patch of white was still fastened on top to indicate the dignity of sergeant. They were entitled to wear scarlet robes (purple for saints' days) and did so on state occasions, although usually adhering to the traditional black gown which had come in as mourning dress at the funeral of Queen Anne in 1714 and never changed since."[5]

This seems to give support to the proposition that in 1714, when Queen Anne died, the judges wore black mourning garb according to the wishes of the King, and have worn it ever since.

"It is a little known fact that for over 250 years, judges have been mourning the demise of the Queen of England! Chief Baron Pollock remarked that 'the Bar went into mourning at the death of Queen Anne and never came out again.' It is the red, not the black, robe which is rooted in antiquity."[6]

Parenthetically, it should be noted that the sergeants-at-law were appointed by the Crown, and that the Order of the Coif was in existence as far back as 1117 A.D.

In a letter to me from Ian A. R. Tofts, dated February 2, 1976, however, he disagrees, as here stated:[7]

With regard to your main question concerning the death of Queen Anne it is not known for certain whether or not it was at that time that 'Queen's Counsel' commenced wearing a mourning costume; indeed it is very unlikely as you will see below. The Costume as a whole, Court Suit and Gown, is said to date from the funeral of Queen Mary II in 1694, being reputedly the Official Court Mourning Dress worn on that solemn occasion. Some say it was at the funeral of Queen Anne and indeed reference is made to the celebrated remark of Sir Frederick Pollock, a 19th Century Judge, that the Bench and Bar have been in mourning and never came out. However, it would seem, and with the deepest of respect for the eminent Judge, he was sadly mistaken. I for my part feel that the Funeral of Queen Mary II in 1694 is more feasible for a number of reasons. In the Michaelmas Law Term of 1697 (some considerable time before the death of Queen Anne) Chief Justice Holt of the then Kings Bench Division (Queen Anne was not yet in fact on the Throne) told Banisters 'I will hear you henceforward only if you appear in your proper gowns and not in mourning one."

This mourning garb however only appears to have been worn to Queen's Counsel. It may also have been worn by Junior Counsel but there is no apparent evidence whatsoever to support Judge Pollock's remarks that the whole of the Judiciary wore mourning garb. Certainly the Judges did not appear to have worn any mourning garb at all–-pictures or paintings of the period would seem to support this.

The Queen's Counsel mourning garb worn on formal legal occasions consists of a black velvet coat with tails, knee breeches, lace stock and cuffs, black silk gown, white gloves and a full bottomed wig. At Royal Courts, State Banquets and other similar occasions they appear simply in Velvet Court Dress with sword and crush hat. At Levees their dress is black cloth Court Suit, lace stock and cuffs, black silk gown and full bottomed wig.

When pleading in Court they wear a Court Tail Coat of cloth, trousers (instead of knee breeches) black silk gown and Bob Wig and bands similar to those of Junior Counsel. When appearing in the House of Lords they wear the full bottomed wig; frequently the mourning gown of stuff is worn in court, strictly incorrectly.

'The Mourning Dress' consisted of a hemmed stock and cuffs with mourning bands (lawn with a thin stripe down the middle) and (when not wearing a gown) a crepe band on the left arm. The gown worn on such occasions is of stuff material instead of silk, when pleading in court, white cuffs of muslin or linen known as 'Weepers,' are worn over the sleeves of the coat and mourning bands. The Queen's Counsel Gown differs from that of the Junior Counsel. As well as being normally of silk, it is practically sleeveless, has a square cut yoke or rudimentary hood at the back and is without the traditional flaps of cloth attached to the Junior Banister's gown.

Whatever the reason, it is established beyond a reasonable doubt that whether the choice of the robe be scarlet, purple, or green, that the use of the black robe was primarily a symbol of mourning and was used in respect for the monarchy at the time of death.

Mr. Tofts, in his letter of February 2, 1976 from Sunbury on Thames, Middlesex, England, answers my letter regarding the question of the use of the red or scarlet robes by stating as follows:[8]

Judges of the High Court are now invariably knighted on appointment. This honor appears to go back as far as the reign of Edward III (1327-1377) when Judges were made 'Knights Banneret,' a rank of office which became extinct in the 17th Century. While in office Judges are entitled to the prefix 'The Honourable,' being referred to as 'The Honourable Sir, So and So, Knight, one of the Justices of Her Majesty's High Court of Justice.' Since the 18th Century they have been addressed in Court as 'My Lord,' and 'Your Lordship.'

In earlier times, from the 14th Century, 'Sir,' was the customary form. High Court Judges are informally addressed as 'Mr. Justice So and So,' and in Law Reports and other Legal writings as 'So and So; J.,' which is also the form of their official signature.

You will most probably be interested to learn that the dress of the English Judge has not changed, in essentials, since the 15th Century. This of course adds weight to the belief that the judges did not in fact wear a mourning dress as did the Queen's Counsel when Queen Anne died or for that matter when Queen Mary II died.

The Official wardrobe of the High Court Judge comprises, and one must remember that little has changed since the 15th Century, as follows:

The Judicial Robe, made of cloth, is not unlike a cassock in shape, with sleeves, a straight front fastening and a high neck without lapels. The deep cuffs are of white fur or of silk and the front edges are trimmed with the same material for most of their length. Robes of this type were worn by the Sergeants, and at the period when the Order of the Coif began there was little distinction between lay and clerical garments. Originally the Robes were partly lined with fur, at first lambskin and later on Miniver (now called Ermine) early 16th Century portraits show the lining barely visible at the end of the sleeve. The Robe at this period was (and for time after) much fuller than at present, more like a full cub Alb than a cassock. The lining gave place to a mere facing, with deep cuffs as if turned back to display the fur or silk and a similar trimming at the front edges.

All High Court Judges have a full dress or State Robe of scarlet trimmed with ermine at the cuffs and front edges, and also a gown, not robe, but of the pattern worn by Queen's Counsel (referred to above) of black silk, comparatively sleeveless. In addition, Queen's Bench Division Judges have a black Robe, trimmed with ermine, one of scarlet trimmed with slate coloured silk and one of violet trimmed with salmon coloured silk. The two last are worn m summer to correspond with the scarlet and ermine and black and ermine which are worn in winter.

It is interesting to note that scarlet was widely used as a judicial colour in Medieval Europe. Inderwick ('The Kings Peace,' 1895) says that the Venetian Magistrates who formed the Council of Ten wore Scarlet and so, apparently, did the Florentine Judges who tried Savonarola in 1495. The same writer adds that Scarlet was a colour used by the Higher Order of the Clergy from whom (at that time) Judges would be drawn. However, I view that with some reservation and feel that this was only true of Cardinals, who one sees always in Scarlet. There are in fact four illuminations, now in the Inner Temple Library, of the time of Henry VI which show the Court of Chancery and the Three Common Law Courts. The Judges in all these Courts are portrayed in Scarlet Robes lined with fur. In early times, however, there was considerable variation in colour. The violet Robe now worn is said to date from Edward I (1272-1307). Green cloth for Common Law Judges is seen during Richard II's reign but only as a summer Robe. In Henry VI's reign the Chief Baron is found receiving violet cloth for a Winter Robe, and Green for Summer, while at the same time other Barons had Violet for Summer.

The remainder of the Judges Regalia which I will not bother to go into the history of at the present moment (but will be pleased to do so if you require further information) consists of the Scarf, (or stole), the Casting Hood, The Girdle (or Sash), The Hood, The Bands, The Court Suits, The Wigs, The Black Cap, The Tri-Cornered Hat (Tricorn) and the White Kid Gloves.

. . . There is also a great deal of tradition relating to the various Courts and Law Sittings and the Regalia changes to suit the occasion.

In this country judges vary greatly in order of seniority and, of course, their regalia changes according to their position. E.G., The Lord Chief Justice wears, on the installation of a new Lord Chancellor, Full Bottomed Wig, Scarlet and Ermine Robes. The Master of the Rolls on the same occasion wears his Black and Gold State Robe. The Lord Chancellor, when he appears, wears also a Black and Gold State Robe. These State Robes date from the 16th Century."

The best collection of portraits and pictures of early judges' attire in the United States can be found in the halls and classrooms of Harvard Law School. In continuing this research I spent many hours viewing portraits and pictures of the different judges depicting the garb and costumes of the judiciary.

It has been generally accepted that I was the first judge to resume wearing the red robe here in the United States, and soon thereafter other judges discarded the use of the black robe.

Endnotes

1. A Book About Lawyers, by John Cordy Jeaffreson, Vol. 1, 1867, p. 361.
2. Ibid., p. 362.
3. Ibid., p. 363.
4. Ibid., p. 363.
5. Case and Comment, Vol. 70, No. 6, Nov-Dec 1965, p. 18
6. Ibid., p. 20.
7. Ian A. R. Tofts, Sunbury on Thames, Middlesex, England, letter of 2-2-76.
8. Loc. Cit., n. 7 supra.

 

Toward 1987: Guidelines from the Centennial

The Editor

Planning is already afoot for the bicentennial of the Constitutional Convention coming up within the decade. Project '87, an "umbrella" administrative group jointly sponsored by the American Historical Association and the American Political Science Association, has been operational since the fall of 1978, having already made research grants to a number of scholars and held two national meetings, one in Philadelphia and one in Williamsburg. The Supreme Court Historical Society is cooperating with the District of Columbia Historical Society and the Washington Monument Association, on plans to observe both the 200th anniversary of the Constitution in 1987 and the beginning of the new government in 1989.

With all these prospective activities, it is appropriate to look backward as well, to the celebration of the first hundred years, in 1887. Philadelphia, which had been the site for a massive exposition on the centennial of the Declaration of Independence in 1876, was once more the scene of an anniversary party only slightly less sumptuous than the first. From some of the reports published in summation of the centennial of 1887, some guidelines for 1987 may possibly be discerned. *

The first official effort to get the centennial rolling came in June, 1886 with a joint resolution of the two houses of the New Jersey legislature, calling on the governors of the thirteen colonial states to meet in Philadelphia on Constitution Day, to plan appropriate activities for the anniversary. Accordingly, on September 17, the governors and a coterie of aides descended on the site of the original convention in Carpenters' Hall. Governor Fitzhugh Lee of Virginia was elected Chairman, and Hampton Carson of Pennsylvania the Executive Secretary.

The latter was the obvious choice; Carson, a prominent Philadelphia lawyer and avid student of constitutional history, had already picked up the ball and was running with it. By the time all of the centennial activity had been wound up, Carson had published a massive two-volume report on the anniversary, followed it with an equally massive history of the first century of the Supreme Court, and begun putting the finishing touches on a collection of books and pamphlets which became the Hampton Carson Collection in the Free Public Library of Philadelphia. A graduate of the University of Pennsylvania, and later a member of its law faculty, Carson was state attorney-general in the period 1903-7, and in 1920 came out of retirement to serve on the constitutional revision commission of his state.

Meantime, the anniversary activities began assuming formal dimensions with the organization of the Constitutional Centennial Commission in December, 1886. The commission 's first effort was to get the government of the United States–created by the Constitution whose anniversary was to be celebrated–to provide some public funds for the event. The first step was something of a debacle; President Grover Cleveland expressed his personal support for the request, and Congress appropriated the modest sum of $100,000–but the special appropriation bill failed to pass "because it was not placed on the calendar," the Commission rather sheepishly had to admit.

Other sources of income were found, however; about half of the sought-after amount was raised by private subscription in Philadelphia, while the states of Massachusetts, New Hampshire, Rhode Island and Delaware appropriated a total of more than $80,000. With this money assured, the commission issued a clarion call to the rest of the then forty-two states:

At various times and in different places you have been called together to commemorate by appropriate ceremonies the great events m your national history. In obedience to that impulse which bids a people do honor to its past, you have reared the lofty column, the triumphal arch, or the votive tablet . . . In 1874 you were summoned by the voice of Philadelphia to meet in the hall of the carpenters' Company, where the first Continental Congress protested against the tyranny of the Stamp Act . . . In 1875 you answered the call to Lexington and Concord and Bunker Hill. . . . In 1876 you again assembled in Philadelphia, like worshippers before a shrine . . . But lately you hurried to the plains of Yorktown, the scene of final triumph. . .

While the grandiloquent description of the Yorktown battlefield might make smiles come to faces of those who have visited it, the buildup was effective: "For a third time," said the commission's manifesto, "you are summoned to Philadelphia–the city of the Declaration of Independence–the city of the Constitution... the Mecca of America." This will wrap it all up, was the inference, and it will be some celebration. As matters turned out, it was.

To "hype" the public consciousness, the commission reprinted the description of the July 4, 1788 celebration of the ratification of the Constitution written by Francis Hopkinson, a rising young Philadelphia lawyer. (See article, "The Selling of the Constitution," elsewhere in this issue.) The first anniversary events began, wrote Hopkinson, "by a salute to the rising sun by a full peal of bells from Christ Church steeple, and a discharge of cannon from the ship Rising Sun, anchored off Market Street. At the same time ten vessels, named in honor of the ten adopting states, could be seen arranged the whole length of the harbor"–something suggestive of the regatta of "tall ships" in New York Harbor in 1976.

A mammoth parade of thirty-two units then began a procession through the city streets, led off by "twelve axe-men, dressed in white frocks, with white girdles around their waists, and wearing ornamented caps." This cryptically symbolic advance guard was followed, at various points in the order of march, by a horseman representing Independence; another horseman representing the French Alliance, the steed being "the same on which Count Rochambeau rode at the siege of Yorktown;" still another horseman representing–somehow–-the Definitive Treaty of Peace, identified by a banner of olive and laurel bearing the date, "Third of September, 1783." One of the show-stopping units was the thirteenth, representing the recently adopted Constitution, represented by Chief Justice Thomas McKean of the Pennsylvania Supreme Court (no Supreme Court or Chief Justice of the United States having yet been brought into being):

[McKean and his associates] were seated in a lofty ornamented car, in the form of a large eagle, drawn by six white horses. The Chief Justice supported a tall staff, on the top of which was the cap of liberty; under the cap was the new Constitution, framed and ornamented; and immediately under the Constitution were the words, "The people," in large gold letters, affixed to the staff.

There was also a horseman "in complete armor," with the Seal of the United States (adopted by the Continental Congress) on his shield. He was followed a few units later by the judge of the state admiralty court, "wearing in his hat a gold anchor, pendant on a green riband;" the judge was preceded by his clerk, carrying a bag full of parchments and embroidered with the word "Admiralty" in large letters. Twenty-fourth was:

The New Roof, or Grand Federal Edifice, on a carriage, drawn by ten white horses. This building, thirty-six feet high [!] was in the form of a dome, supported by thirteen Corinthian columns ... Ten of the columns were complete, but three left unfinished. On the pedestals of the columns were inscribed in ornamented letters the initials of the thirteen American states. Round the pedestal of the edifice these words: "In union the fabric stands firm."

Near the end came the most dramatic float, the thirty-second:

The Federal ship Union, mounting twenty guns, commanded by John Green, three lieutenants, and four boys in uniform. The crew, including officers, consisted of twenty-five men.

The ship was thirty-three feet in length, width and riggings in proportion. Her hull was the barge of the ship Alliance, the same which formerly belonged to the Serapis, and was taken in the memorable engagement of Captain Paul Jones, in the Bonhomme Richard, with the Serapis. She was mounted on a carriage drawn by ten horses.

Boat-builders in a boat-builders' shop, eighteen feet long, eight feet wide, drawn by four horses. Seven hands were at work building a boat thirteen feet long, which was actually set up and nearly completed during the procession. Then followed large deputations of the different trades–sail-makers, ship carpenters, ship joiners, rope-makers, and ship-chandlers, merchants and traders, and others.

Hopkinson concluded his report with the statement: "It is, of course, but natural to expect that the celebration of 1887 will surpass that of 1788 in respect to grandeur and magnificence in every detail. To surpass it, however, in the joy and enthusiasm of the participants will not be such an easy task." Carson and his associates accepted the challenge, and although their procession, with its theme, "The Progress of a Century Under Constitutional Government," had only twenty-four units as against the thirty-two in 1788, it was intended to encompass every important facet of national life. As it was, the numbers of participants almost clogged the machinery of organization; the marshal of the grand parade reported in his concluding paper: "Even with the unexpectedly large increase in the number of men and vehicles which crowded into columns after they had been definitely arranged and assigned, there would not have been more than an hour's delay" if communications had been better.

The 1887 program tried to let everyone get into the act who wanted to; there were, accordingly, half a dozen floats by rival ice-making companies. A group called the Knights of the Golden Eagle preened themselves immediately after a series of three floats representing "an old-time brewery," "a modern brewery" (22,500,000 barrels), and one depicting a temple housing King Gambrinus (?) refusing nectar in a preference for "beer, the staff of life and promoter of temperance."

The "civic and industrial procession" of September 15, 1887 was, of course, only part of the centennial program. The following day there was a massive military display of American advances in the martial arts since the Revolution. Meantime, leaders of the Philadelphia bar had breakfasted at the White House, perhaps an effort to make more palatable the national government's parsimony at the observance of its own birthday, and on Constitution Day itself a climactic memorial service was held in Independence Square. President Cleveland, former President Rutherford B. Hayes, Lincoln's former Vice-President, Hannibal Hamlin, and Chief Justice Morrison R. Waite (see Portfolio, this issue) were among the principal figures on the rostrum. Music by the Marine Corps band was conducted by a young Professor John Philip Sousa. The "orator of the day" was Justice Samuel Freeman Miller.

Miller's address was remarkable for the candid discussion of contemporary issues which had just been adjudicated by the Supreme Court. The Justice took this as a heaven-sent opportunity to deliver an earnest declaration of his own constitutional faith, which was unmistakably federalist. It was an off-the-bench attempt–rare in the records of sitting Justices–to make a critical evaluation of a number of current political problems. Miller in particular inveighed against legislative interference with executive powers–in the presence of Congressional delegates and an incumbent and past Chief Executive, and praised the wisdom of the Founding Fathers in making it possible for the judiciary to umpire the relationships of the other two branches.

Ideological polarity on the Supreme Court is hardly a new thing. Miller's vigorous espousal of a strong central government, with the judiciary as the logical agency for keeping it in balance, aroused the most conservative member of the bench, Justice Stephen Field, to seek an equally important rostrum to offer a rebuttal. This was provided a short time later at a centennial program in New York, where Miller's colleague made an emphatic answer to most of Miller's major points. The anniversary observations concluded by publishing both addresses in the next issue of the Supreme Court Reports.

Perhaps the most lasting contribution to professional literature for this centennial was Carson's own history of the Supreme Court, which after nearly a hundred more years is still one of the most comprehensive to have been published. Aside from this, however, it is hard to say whether Hopkinson's sanguine statement of 1788 was surpassed by the works of 1887. And that, in turn, raises a question and a caveat for 1987-89.

 

Law Clerks–A Professional Elite

Barrett McGurn

Except for the Justices themselves no members of the Supreme Court staff are the subject of more enduring interest and speculation than the corps of law clerks, usually men and women in their middle twenties and at the outset of their professional careers.

Through the years the questions are the same: what do the law clerks do? How influential are they? Who are they? Where do they go from here?

Dean Acheson, who clerked for Justice Brandeis before serving some years later as Secretary of State, has provided some insights into what a law clerk does. There were some small errors in a text his Justice had drafted and the young clerk happily pointed them out.

"Your mission," Justice Brandeis told Law Clerk Acheson, "is to catch my mistakes! And not make any of your own!"

Who wrote the Brandeis opinions? Brandeis, the Secretary-of-State-to-be quickly discovered. But footnotes were something else.

"I wrote the footnotes," Mr. Acheson recalled in 1957 in "Recollections of Service with the Federal Supreme Court." "My footnotes were, up to that time, the Mount Everest of footnotes. Today Justices of the Supreme Court write textbooks as marginal annotations of their opinions, but up to that time I had written the greatest footnotes, fifteen pages of footnotes."

Law clerks are unknown in England but they are a significant part of the judicial scene now in appellate courts and even trial courts all across this country. It may seem odd both that the highest federal bench had no law clerks for almost half of its current history and that, in effect, the tradition of law clerks was born at the United States Supreme Court.

Justice Horace Gray is the father of the law clerk institution. Before he came to the United States Supreme Court he was Chief Justice of the Supreme Judicial Court in Massachusetts. Little noted while he served on that New England bench was a custom he began there: to hire a recent honor graduate of the Harvard Law School at his private expense to serve for a year as his legal assistant. In Washington on the supreme bench the Justice continued his practice but what passed little noted in Massachusetts attracted instant attention here. Attorney General A. H. Garland used his annual report to Congress in 1885 to say that just as Washington heads of departments and United States Senators had government-paid assistants, so should each of the Supreme Court Justices. An annual stipend of not more than $1,600 was what was needed to get the right quality of aides, the Attorney General added. Congress agreed; each Justice was allowed a clerk. In 1947 Congress raised the authorization to two. In 1970 it became three. Now most justices have four. To keep step with inflation something over a ten-fold increase has been made in the 1886 salary authorization.

Harvard was in on the ground floor when Mr. Justice Gray in Boston looked around for an institution to supply him law clerks, and Harvard has never lost that position of priority. To some extent it has been a revolving door situation for many Supreme Court law clerks have gone back to Cambridge as professors. One Brandeis clerk, James M. Landis, served successively both as dean of the Harvard Law School and also as chairman of the Securities Exchange Commission. "Juris Doctor" noted in 1972 that "a quarter of the current Harvard Law faculty and fifteen percent of the Yale law faculty" were made up of former United States Supreme Court law clerks.

Justice Gray died-in 1902 after twenty years on the Court. He was succeeded by Oliver Wendell Holmes who served for the next thirty years. Justice Holmes and another of his brethren on the same Court, Louis Dembitz Brandeis (1916-1939), followed the Horace Gray tradition, looking to Harvard for clerks. On campus they had a talent scout who watched for the most promising members of each graduating class. He was Professor Felix Frankfurter who himself joined the Court in 1939, serving until 1962. He in his turn continued a Harvard law clerk tradition (with such rare exceptions as Anthony Amsterdam of the Pennsylvania Law School, now a professor at Stanford).

Justice Brennan is another, himself a Harvard Law graduate, who emphasized his alma mater in choosing law clerks in his early Court years, but later, like the bulk of the Court itself, he began looking beyond the few large national schools to other institutions and other parts of the country. Harvard, accompanied by Yale, continues to provide the lion's share of clerks each year, but dozens of other law schools now contribute. In 1971 the Congressional Record reported that more than half of the 361 law clerks of the previous decade were products of the Harvard and Yale law schools–Harvard had 125 or 35%, Yale sixty. Potomac Magazine in 1976 said that fifteen of the previous term's thirty-two clerks came from Harvard, Yale, Columbia, Chicago and Michigan–just under half, and that if you added Pennsylvania, Stanford, Berkeley and Virginia the total was twenty-two, nearly seventy percent.

While all that may be said, it is also true that law schools from all corners of the country are succeeding in placing some of their graduates inside the corps of Supreme Court law clerks. In the 1973-1978 period this was the breakdown: in addition to 115 from Harvard, Yale, Virginia, Stanford, Chicago, Michigan, Pennsylvania and Columbia, there were six from Texas, and others from Minnesota, Northeastern, Berkeley, Boston College, Boston University, Catholic University, Vanderbilt, the University of Southern California, Duke, Arizona, Indiana, Colorado, Illinois, Washington and Lee, Backus (which formerly was Western Reserve), Santa Clara, Washburn, Loyola, Mississippi, and North Carolina.

Felix Frankfurter, the scout for Justices Holmes and Brandeis, is given credit for building the role of law clerk into a major American legal institution, but at the outset, in those first Horace Gray years, it was not always clear just who should be hired for the new judicial job or even what the new employee should be called. In his 1885 recommendation to Congress the Attorney General spoke of "stenographic clerks." Not until 1919 was the title "law clerk" used; Justice Holmes was the first to employ someone under that sobriquet. Secretary, law assistant, research aide and legal assistant are some of the names by which law clerks variously have been called in one court or another during the past century and, in at least one state, the name "briefing attorney" has been invoked in an effort to clarify just what are the important law clerk duties. This touches on the significant role the law clerks often play in helping Supreme Court Justices work through the flood of 4,000 incoming cases each year, choosing the 200 or 300 which will be decided on their merits. Memos from their clerks have helped many Justices winnow the frivolous cases from those raising important federal questions. These are the "briefing" duties.

Most law clerks now come from the top of their law school classes. Many have served on law reviews. Many also have had experience for a year or so as law clerks at an intermediate appellate level. With a grinding caseload weighing on each Supreme Court Justice, much is expected from each clerk. Workdays stretch into evenings and into the weekends. In the easier time of a century ago less rigorous talent searches seemed necessary since much less presumably was expected. There was even an occasional whiff of nepotism which would now be startling. When the Justice John Marshall Harlan was faced for the first time with hiring one of the Congressionally-authorized "stenographic clerks" he picked his own son, John Maynard Harlan. It is, of course, quite possible that the Justice was recognizing an important legal bloodline, for John Maynard Harlan's son, the second John Marshall Harlan, was another who mounted the Supreme Court bench as an Associate Justice, in 1955.

William Rufus Day, who was on the Court from 1903 to 1922, provided two of his sons to the corps of law clerks. Another son of the first Justice John Marshall Harlan–James S. Harlan–served Chief Justice Melville Fuller as his first law clerk.

With nearly 30,000 graduating each year from more than 150 law schools approved by the American Bar Association, and with a Supreme Court clerkship now seen as the finest available one-year post-graduate training course for a lawyer, Court watchers scrutinize the individual hiring practices of each Justice, trying to find the best way to qualify. In addition to meeting the standards of training and excellence already mentioned, some have discerned certain loyalties to the Justice's own alma mater and geographical region.

In this regard Kenneth Bass III, a 1969 law clerk of Mr. Justice Hugo Black, observed:

"The perfect clerk for Justice Black was an Alabama boy who went to Alabama Law School. If that wasn't possible, then someone from the South who went to a leading law school. He tried to convince his clerks to return to the South and a number of his clerks still practice in Alabama (1972)."

Mr. Justice Douglas often had a clerk from the Northwest or Far-West. Mr. Justice Whit-taker had many Mid-Westerners. Youths from his native mountain state area served often with Mr. Justice White. The late Justice Tom C. Clark seemed to enjoy association with fellow Texans.

Most clerks serve now for one year, some remaining for two, few staying longer than that. Some legal scholars see advantages in this arrangement. The young incoming clerks bring from the law campuses the ponderings on the law current amidst their generation of law professors. Service with a Justice provides its own distinctive alumni association and some bands of law clerks of a single Justice maintain close ties with him and with one another. The clerks of Earl Warren played an important role in his funeral exercises when the late Chief Justice lay in state in the Great Hall of the Supreme Court Building in 1974. Clerks of Mr. Justice Stanley Forman Reed (1939-1957) placed a plaque in his honor at the University of Kentucky Law School, listing each of their names, many of them now illustrious in recent national history.

Nowadays with the overwhelming caseload– a dozen new cases every calendar day–clerks have a more businesslike relationship to the Justices, but in the days before 1935, when there was no Supreme Court Building and Justices did much of their work at home, clerks often were like family members. When Mr. Justice Holmes had his 90th birthday in 1931 there was an incident reflecting that intimate relationship which later provided the closing scene for the dramatic play about the life of "The Magnificent Yankee." Mrs. Holmes invited fifteen of Justice Holmes twenty-five law clerks to a surprise party. They hid down in the cellar and at a dramatic moment were summoned "out of the coal bin."

Mr. Justice Black always appreciated law clerks who could give him a game of tennis. Mr. Justice White, a former all-American football player from Colorado, still enjoys a pick-up basketball game with clerks in what is known as "the highest court in the land." (The basketball court, in a converted fourth floor storeroom, is above the second floor courtroom of the Supreme Court, thus giving the basketball area its claim to preeminence.)

A few Justices in the past several years–the Chief Justice and Justice White–have experimented with "legal assistants," more mature and experienced lawyers who remain for several years. In a sense this is a return to an earlier tradition. The custom of a complete turnover of law clerks every year did not develop until the 1930s. In earlier years some few were even men who had business activities on the side. Justice Joseph McKenna who joined the Court in 1898 chose a law clerk who remained with him for the next twelve years, the remainder of the clerk's life.

Exemplary service has been a tradition among the law clerks although there is one blot on the group's record. In 1919 one of the law clerks was indicted for leaking Court opinions to speculators. He resigned. Prosecution of the case was dropped some years later.

With blacks and women entering law schools in greater numbers they also have joined the law clerk ranks. The first woman was hired by Justice Douglas in 1944. She was the Justice's sole clerk in that wartime year: Lucille Lomen. Justice Gray in the 1880's, looking around for his own first Supreme Court law clerk, would never have thought of a woman, for it was only in 1879 that Mrs. Belva A. Lockwood, a determined feminist, succeeded in crashing the all-male Supreme Court bar. By World War II it was different. Miss Lomen, a member of Phi Beta Kappa, had edited the law review at her law school at the University of Washington, the state to which Justice Douglas looks as home. By the early 1970s Miss Lomen was a counsel for General Electric in New York.

A score of years passed before the second woman law clerk was hired. She was Margaret Corcoran, law clerk to Mr. Justice Hugo Black in the 1966 term. While helping establish one tradition–women as Supreme Court law clerks–Miss Corcoran was carrying on a family custom, for she was the daughter of a previous clerk, Thomas ("Tommy the Cork") Corcoran, one of Mr. Justice Frankfurter's "happy hot dogs," and one of the foremost braintrusters of the first two immensely innovative presidential terms of Franklin D. Roosevelt. Miss Corcoran's promising career was cut short with her tragic early death at 28.

The third Justice to choose a woman law clerk was Justice Abe Fortas, who selected Margaret Alschuler (now Field) in 1968. Fourth was Justice Thurgood Marshall with Barbara Underwood in 1971. Miss Underwood went on to become the second woman to serve as a Yale law professor. In recent years the number of women law clerks has risen sharply, often four or five in a term. Two of Justice Douglas' clerks in 1972 were women. There were five women among the law clerks in the 1978 term. Through that term there have been twenty-six women in the Supreme Court's law clerk corps.

The first black law clerk was William A. Coleman, Jr., taken by Justice Frankfurter in 1948. Mr. Coleman had been at the head of his Harvard law class. Justice Frankfurter had two clerks that year. The other was Elliott Richardson. It is part of the legend that the two Frankfurter clerks would use lunch breaks for joint poetry readings. Each of them later entered presidential cabinets. Mr. Coleman was Secretary of Transportation under President Ford while Elliott Richardson may have broken all the records of presidential history with the variety of his assignments at the top of the American bureaucracy: Secretary of Defense, Attorney General, Secretary of HEW, Under Secretary of State and Ambassador to the Court of St. James in Britain.

Two other blacks have followed in Mr. Coleman's law clerk footsteps: Tyrone Power, an Earl Warren clerk in 1967, now a Federal Communications Commissioner, and Karen Hastie Williams (a Marshall clerk, 1974), now general counsel of the United States Senate Committee on the Budget.

Three one-time clerks have returned to take their own place on the supreme bench and thus to choose another generation of their own successors: Justice Byron White who clerked for Chief Justice Vinson, Justice William H. Rehnquist (a clerk of Mr. Justice Robert H. Jackson), and Justice John Paul Stevens who clerked for Justice Wiley B. Rutledge.

One law clerk, Alger Hiss of the Department of State (a Holmes clerk), was convicted of perjury in one of the sensational cases of the post World War II Cold War period, but brighter headlines have told the story of scores of other graduates of this unique corps.

Law Clerk Alumni

The Chicago Sun-Times a year or so ago set itself to tracking down ex-clerks of the Supreme Court to determine what they had done after their youthful experiences as aides of the Justices. From their research and additional inquiries the following brief listing is drawn.

Many went to the Department of Justice, some at the highest levels: besides Attorneys General Elliott Richardson, (a clerk of Justice Frankfurter), and Francis Biddle, (who assisted Oliver Wendell Holmes), there have been Deputy Attorney General Warren Christopher (Douglas), Assistant Attorneys General James H. Rowe, last of the Holmes clerks (FDR's administrative assistant and a member of the Hoover Government Reorganization Commission); Daniel J. Meador (University of Virginia law professor and author of law books including one on his Justice, Hugo Black), John Harmon (head of the Office of the Legal Counsel –a clerk of Chief Justice Burger), Peter Taft (Warren), Donald F. Turner (Clark), and Herbert Wechsler (Stone), and Deputy Solicitor General Lawrence Wallace (Black).

In addition to Secretary of State Dean Acheson, and Transportation Secretary William A. Coleman, Jr., many went to other sections of the federal government: Newton N. Minow (Vinson) as chairman of the Federal Communications Commission, Adrian S. Fisher, last of the Brandeis clerks, as general counsel of the Atomic Energy Commission; Philip B. Heymann, clerk to the second John Marshall Harlan, Deputy Assistant Secretary of State for International Organizations; Adam Yarmolinsky, Deputy Assistant Secretary of Defense and deputy director of a presidential anti-poverty task force (a Reed clerk); John Ely (Warren), general counsel of the Department of Transportation; Federal Trade Commissioner Philip Elman (Frankfurter), Richard Goodwin (Frankfurter), White House official in the Johnson and Kennedy administrations; Benjamin Heineman, Executive Assistant Secretary of HEW (Stewart), Chairman Roderick Hills of the SEC (Reed); E. Barrett Prettyman (Jackson, Harlan), White House official under President Kennedy; Under Secretary of the Treasury H. Chapman Rose (Holmes); and James Vorenberg (Frankfurter), executive director of the Presidential Commission on Law Enforcement and the Administration of Justice.

Some turned to the business world: Charles Luce, chairman of the board of Consolidated Edison (a black clerk); Irving Olds, chairman of the board of United States Steel (Holmes); George L. Harrison, president of the New York Life Insurance Company (also Holmes); and Arthur Seder (Vinson), president of the American Natural Gas Service.

Several became writers or publishers: Philip L. Graham, president of the Washington Post (Frankfurter and Reed); David Riesman (Brandeis), author of The Lonely Crowd–a Study of the Changing American Character; Professor Alexander Bickel of the Yale Law School (Frankfurter), author of a shelf full of books including The Least Dangerous Branch: the Supreme Court at the Bar of Politics; Professor Andrew Kaufman of the Harvard Law School, like Bickel the author of a volume on the Justice they shared–Felix Frankfurter; Professor Eugene Gressman of the University of North Carolina Law School (clerk to Mr. Justice Murphy), co-author of the standard guide to Supreme Court practice; Charles Reich (Black), author of The Greening of America, and John Frank (also Black), a writer on legal affairs.

In addition to the professors above, academia claimed many other clerk-alumni: President Dallin Oaks (Warren) of Brigham Young University; Deans Roger Cramton (Burton) of Cornell Law School, Phil Neal (Jackson) of the University of Chicago, and Louis Pollak (Rutledge) of the law schools of Pennsylvania and Yale; and Professors Paul Freund (Brandeis) of Harvard (chairman of the commission to study problems of the appellate courts); Philip Kurland (Frankfurter) of Chicago Law School (chief counsel of a United States Senate committee on the separation of powers); Laurence H. Tribe (Stewart) of Harvard; Walter B. Leach (Holmes), also Harvard; Nathaniel Nathanson (Brandeis), Northwestern University Law School; Arthur Sutherland (Holmes) Harvard; Francis Allen (Vinson) U. of Michigan; Guido Calabresi (Black) Harvard; Kenneth Dam (Whittaker) Chicago University; Gerald Gunter (Warren) Stanford, A. E. Dick Howard (Black) Virginia; and Kenneth Ripple (Burger) Notre Dame.

Among those drawn to politics were Governor Dan Walker of Illinois (a clerk of Chief Justice Vinson), Congressman Abner Mikva of Illinois (Minton), and Joseph Rauh, Jr. (clerk to Justices Frankfurter and Cardozo), national chairman of the Americans for Democratic Action.

Among others practicing law were Thomas Austern (Brandeis) and Nathan Lewin (Harlan) in Washington, Chauncey Belknap (Holmes), and Alexis Coudert (Stone), in New York, and George Saunders (Black), and Howard Trienens (Vinson) in Chicago.

In addition to the three former clerks now on the bench of the United States Supreme Court others who became judges include United States Courts of Appeals Judges Henry J. Friendly (Brandeis), Harold Leventhal (Stone and Reed), and Philip Tone (Rutledge), and Chief Judge Calvert Magruder of the Federal Court of Appeals in Boston (the first clerk chosen by Mr. Justice Brandeis), and United States District Judge Louis F. Oberdorfer (Black).

 

CONTRIBUTORS

Felix Frankfurter was Associate Justice of the Supreme Court of the United States from 1939 to 1962.

Paul R. Baler was a Judicial Fellow in the Supreme Court, 1975–1976, and is Associate Professor of Law, Louisiana State University.

Gerald T. Dunne is Professor of Law at St. Louis University.

Paul T. Heffron is Assistant Chief of the Manuscripts Division, Library of Congress.

Geoffrey B. Morris was a Judicial Fellow in the Supreme Court, 1976–1977, and is

Research Associate for the Administrative Assistant to the Chief Justice.

William F. Swindler is Editor of the SCHS Yearbook, and John Marshall Professor of Law, Emeritus, College of William and Mary.

Charles A. Leonard is Professor of Constitutional Law and Judicial Process, Western Illinois University.

Christine R. Jordan wrote her M.A. thesis on Justice Campbell at the University of Virginia, and is Assistant Editor, Documentary History of the Supreme Court, 1789–1800.

Alan Westin is Professor of Political Science at Columbia University.

S. James Clarkson is judge of the Michigan District Court No. 46.

Barrett McGurn is Information Officer for the Supreme Court of the United States.

 

ACKNOWLEDGEMENTS

The Supreme Court Historical Society acknowledges with deep appreciation the assistance and cooperation of a number of agencies and individuals who provided illustrative material for this issue of the YEARBOOK:

Supreme Court Historical Society for the formal color portrait of Chief Justice Morrison Waite.

Virginia Law Review of the Law School of the University of Virginia for permission to reprint the article "Chief Justices I have Known" by Felix Frankfurter which originally appeared, in part, in the Virginia Law Review.

Supreme Court Historical Society for the formal portraits of Justice Melville Weston

Fuller, Bushrod Washington, William Henry Moody, Stanley Matthews, Samuel

Blatchford, Horace Gray, Lucius Quintus Cincinnatus Lamar, Owen J. Roberts, and

John Archibald Campbell.

Paul Baier, professor at Louisiana State University, for his pictures of Mr. Henry Putzel, Jr. and syllabus notes from various cases discussed in his article.

Library of Congress for the photographs of Theodore Roosevelt, and Dean Acheson. Mount Vernon Ladies Association for the use of the picture of Mount Vernon by Bulent Atalay.

Iowa State Historical Society for the picture of James B. Weaver.

New York Historical Society, NYC for the picture of the "Ship of State" that appeared in Mrs. Martha Lamb's History of New York City.

Smithsonian National Museum, Department of Political Science for the picture of John Marshall's robe.

Dr. Cletis Pride for the picture of the Justice's skull cap.

J. B. Lippincott Company, for the use of the frontispiece picture from their book History of the Celebration of the One Hundredth Anniversary of the Promulgation of the Constitution of the United States, published in 1889. The book is presently in the collection of the Supreme Court Library.