The 1926 Term: My Clerkship With Mr. Justice Stone *

by Milton Handler


It is always pleasurable for a septuagenarian to reminisce about his early years, but this is especially the case when one can recount the delightful experiences of working with one of the titans of our law. There is an aspect of my clerkship which is quite unique, since my year with the Justice coincided with the construction of his beautiful home. The Justice rarely missed a day in visiting the building site. Every bit of material that went into the house was personally examined by him. Beside my usual duties, I was called upon to obtain literally hundreds of books from the Library of Congress on the design of fireplaces, mantle pieces, locks and hardware, paneling, trim and floors. The completion of the house formed an important part of the Justice's daily routine.

Let me describe that routine, bearing in mind that I was with him in 1926 during his second full term on the Court and that in later years the routine was doubtless drastically altered, especially as the work of the Court became more difficult and complex.

The Justice's temporary chambers were on the first floor of the Senate Office Building. On arrival, he would open all the windows, regardless of the weather, with the result that there was always a gale blowing through his room. When he buzzed Miss Jenkins, his secretary, she would don her heavy winter coat and take his dictation fully attired for the outdoors.

The first order of business, no matter how pressing his calendar, was the reading of his mail and the dictation of responses to the letters received that day. This he would even do on Saturdays, when he might not arrive until after 10:00, with the conference scheduled for 12:00 in the Capitol. Since the agenda normally included about 75 matters, it took a bit of effort to get the Justice organized for the conference. All of the briefs and records had to be assembled and transported to the Capitol. The Justice had to be given his locked docket book in which all votes were recorded. He never took any notes of the cases that had been argued; the only markings he made was a number sign (#) indicating that he had examined the papers. My certiorari memos were normally about one-page long; these would be read by him in about one-half hour or approximately one minute for each. Following the conference, I generally accompanied him on the walk homewards, during which time he would fill me in on what had happened, expressing his views of his colleagues with a frankness that was sometimes startling.

Beginning in October, the Court sat for two weeks of argument and then took a two-week recess. The Court session ran from 12:00 noon until 4:30, with a lunch break from 2:00 to 2:30. This was a period of Coolidge economy and the Senate Restaurant was closed when Congress was not in session. This meant that the Justice had to bring his spartan luncheon from home in a lunchbox. Returning to chambers upon the conclusion of arguments, the Justice would sign his mail, leaf through some of the briefs and records and be ready for his afternoon walk at about 5:30. On these walks, he would talk about the issues before the Court, his years at Columbia, his deep antipathy for Nicholas Murray Butler, his reservations about some of the professors on the Law School faculty, his experiences as Attorney General and a member of the Coolidge Cabinet, his appraisal of his fellow Cabinet members and of the President of the United States.

Thus, as you can see, the Justice, like his former student and later colleague, Bill Douglas, was not, at that stage of his judicial career, overburdened by the job of judging. The Court was then a "cold" bench, with the Justices not seeing the briefs or records until a case was called for argument. There were very few blockbuster cases and the Justice found little difficulty in making up his mind on the basis of the oral argument, confirming his tentative judgment by glancing at the table of contents of the briefs and skimming those pages that dealt with the issues that interested him.

The picture was radically different during recess, when the opinion-writing process was in swing. The Justice made a fetish of always being current with his work. Whether his assignment consisted of two, three or four opinions, he made every effort to complete all of these during the two-week recess. He would be at his desk well before 9 a.m. With his experience as an appellate lawyer, he could digest records and briefs with phenomenal speed. He tackled the hardest case first, leaving to the last the more simple ones. His first draft was written in pencil on yellow sheets of paper, in a scrawl notorious for illegibility. After he wrote two or three pages, he would summon Miss Jenkins and immediately dictate what he had written. If he waited too long, neither he nor any other human being could decipher his writing. At this stage, his sole objective was to get his thoughts on paper; he was not yet striving for literary perfection. While the clerk was responsible for extensive research, he was never asked to draft an opinion as such. His main role was to participate in the painstaking process of revision. We would deal first with structure and organization. We would argue the validity and cogency of the reasoning. We might even fight about the result, although there was little chance that the Justice would go counter to the vote of the Court, although, to be sure, this sometimes happened. Then came a scissors and paste job, with the draft being cut up into various pieces and put together in a different sequence. It was not until the third or fourth draft that we began to pay attention to language. At this juncture, we pored over the text word-by-word, phrase-by-phrase and sentence-by-sentence to achieve maximum clarity. All of this would go on for as many as six to ten typed drafts, only to be continued again when we got page proofs, which themselves might go through an additional five or six drafts. Even at this late stage, the Justice would sometimes go home and come back in the morning with a totally rewritten opinion, explaining that he had been dissatisfied and felt that a briefer and better-integrated version was to be preferred. When he did this, the resulting opinions were the very best he published that year.

The workday during the opinion-writing period would run for ten hours, if not more. This was the time when the books would be piled ceiling high as the precedents were carefully studied, applied or distinguished. It might not have taken the Justice very long to make up his mind; but it took endless hours to produce a document which met his Olympian standards.

A word before I close about our daily luncheons. During recess we had lunch together every day at the Methodist Building across the street from the Senate Office Building. These were working luncheons. I didn't have to watch my diet in those days, so I would have a full luncheon. The Justice loved food, a trait hardly belied by his 290 pounds.

Nonetheless, he would order a pimento cheese sandwich on raisin bread, a glass of buttermilk and raw apple. He would sniff at my food, his salivary glands working overtime, and admonish me to remind him the next day to order what I had just had. However the next day, once so reminded, he would invariably order his usual luncheon, complaining sadly that Mrs. Stone would not permit him any more because they usually had a huge breakfast and generally were guests at a formal dinner.

I could go on and on. I have confined myself to the Justice's work habits, resisting the impulse to deal with the substance of his decisions, his juristic philosophy or the contributions that he made as Justice and Chief Justice. This I must leave for another day.

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*Professor Handler's article is comprised of the text of his remarks at the Tenth Anniversary Dinner of the Harlan Fiske Stone Fellowship of Columbia University School of Law.