Law Clerks The first use of law clerks by an American judge is generally traced to Horace Gray of Massachusetts. In the summer of 1875, while serving as chief justice of the Massachusetts Supreme Court, he employed, at his own expense, a highly ranked new graduate of the Harvard Law School. Each year, he employed a new clerk from Harvard. When Gray was appointed to the U.S. Supreme Court in 1882, he brought a law clerk with him to the nation’s highest court. Justice Gray’s successor on the High Court was Oliver Wendell
Holmes, who also adopted the practice of annually hiring honor graduates of Harvard Law School as his clerks. When William Howard Taft, a former law professor at Yale, became chief justice, he secured a new law clerk annually from the dean of the Yale Law School. Harlan Fiske Stone, former dean of the Columbia Law School, joined the Court in 1925 and made it his practice to hire a Columbia graduate each year. Since these early beginnings there has been a steady growth in the use of law clerks by all federal courts. More than 2,000 law clerks now work for federal judges, and more than 600 serve bankruptcy judges and U.S. magistrate judges. In addition to the law clerks hired by individual judges, all appellate courts and some district courts hire staff law clerks who serve the entire court. A law clerk’s duties vary according to the preferences of the judge for whom he or she works. They also vary according to the type of court. Law clerks for federal district judges often serve primarily as research assistants.
They spend a good deal of time examining the various motions filed in civil and criminal cases. They review each motion, noting the issues and the positions of the parties involved, then research important points raised in the motions and prepare written memorandums for the judges. Because their work is devoted to the earliest stages of the litigation process, they may have a substantial amount of contact with attorneys and witnesses. Law clerks at this level may be involved in the initial drafting of opinions. At the appellate level, the law clerk becomes involved in a case first by researching the issues of law and fact presented by an appeal.
The courts of appeals do not have the same discretion to accept or reject a case that the Supreme Court has, and they use certain screening devices to differentiate between cases that can be handled quickly and those that require more time and effort. Law clerks are an integral part of this screening process. A number of cases are scheduled for oral argument, and the clerk may be called upon to assist the judge in preparing for it.
Intensive analysis of the record by judges prior to oral argument is not always possible. They seldom have time to do more than scan pertinent portions of the record called to their attention by law clerks. Once a decision has been reached by an appellate court, the law clerk frequently participates in writing the order that accompanies the decision.
The clerk’s participation generally consists of drafting a preliminary opinion or order pursuant to the judge’s directions. A law clerk may also be asked to edit or check citations (references to a statute, precedentsetting case, or legal textbook, in a brief or argument in court) in an opinion written by the judge.
The work of the law clerk for a Supreme Court justice roughly parallels that of a clerk in the other appellate courts. Clerks play an indispensable role in helping justices decide which cases should be heard. At the suggestion of Justice Lewis F. Powell, Jr., in 1972, a majority of the Court’s members began to participate in a “certpool”; the justices pool their clerks, divide up all filings, and circulate a single clerk’s certiorari memo to all those participating in the pool. The memo summarizes the facts of the case, the questions of law presented, and the recommended course of action — that is, whether the case should be granted a full hearing, denied, or dismissed. Once the justices have voted to hear a case, the law clerks, like their counterparts in the courts of appeals, prepare bench memorandums that the justices may use during oral argument. Finally, law clerks for Supreme Court justices, like those who serve courts of appeals judges, help to draft opinions
