Journal of Supreme Court History

Isaiah and His Young Disciples:WVUTSRQPONMLKJI Justice Brandeis and His Law ClerksZYXWVUTS TODD C. PEPPERS* IntroductionzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLK It canno tbe saidthat Lo u is Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development ofthe institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify. Brandeis was not the first Supreme Court Justice to hire law clerks. Upon his elevation to the Supreme Court in 1882, Justice Horace Gray started the practice of hiring recent Har­ vard Law School graduates to serve as his legal assistants.1 Justice Gray instituted the tradi­ tion of hiring law clerks while serving as the Chief Justice of the Massachusetts supreme judicial court, and one of the young Harvard Law School men Gray hiredwas Brandeis him­ self. Norwas Brandeis responsible for much of the early mythology surrounding the relation­ ship between Justice and law clerk. It was the “Magnificent Yankee,” Justice Oliver Wendell Holmes, Jr., who summoned a generation of Harvard Law School graduates to serve as pri­ vate secretaries, social companions, surrogate sons, and caretakers to “God’s grandfather.”2 It would be Brandeis’ clerkship model, however, that led to the professionalization ofthe clerk­ ship institution. From the hiring of his first law clerk, Brandeis demanded that each law clerk have a strong work ethic, possess supe­ rior legal writing and research skills, and abide by the fiduciary relationship between Justice and law clerk. While future Justices have dif­ fered from Brandeis in the type of substan­ tive job duties assigned to their law clerks, the 76zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA JOURNAL OF SUPREME COURT HISTORYzyxwvutsrqponmlkjihgfedcbaZYX expectations aboutthe duties ofconfidentiality and loyalty as well as the skills to be possessed by law clerks remain unchanged. This essay will explore the Brandeis clerkship model, ar­ guing that Brandeis’ rules for and expecta­ tions ofhis law clerks not only were unique for their time, but also forever shaped the clerk­ ship models adopted by future generations of Justices. Before turning to Justice Brandeis, a brief aside about one of the primary sources used in this essay. In the early 1980s, author and attorney Lewis J. Paper had the rare oppor­ tunity to interview twelve surviving Brandeis law clerks as he prepared to write his book on the late Justice? His interview notes offer a fascinating peek into the world ofthe Brandeis clerkship and contain many details and tidbits never before discussed in any book or arti­ cle. Mr. Paper donated his interview notes to the Special Collections Department at Harvard Law School, and he has graciously allowed me to quote from them in this article. The Selection of Justice Brandeis’WVUTSRQPONMLKJIHGFEDCBA Law Clerks The selection of law clerks by the Justices on the White, Taft, and Hughes courts var­ ied dramatically from the selection practices of the modern Court. While today’s Justices pore through hundreds of applications, often assisted by a screening committee, in the early years of the clerkship institution law students at Harvard, Yale, and Columbia found them­ selves tapped by faculty members to work at the Supreme Court for such Justices as Holmes, William Howard Taft, and Harlan Fiske Stone. Upon arriving at the Supreme Court, Brandeis began following Holmes’ practice ofhaving Harvard Law School profes­ sor Felix Frankfurter select his clerks. In a De­ cember 1,1916, letter to Frankfurter, Brandeis wrote that Frankfurter’s selection of Calvert Magruder as his first law clerk strengthened the Justice’s confidence in Frankfurter,4 and two years later Brandeis stated that Frankfurter now had unlimited discretion to select his clerks—while adding that “[w]ealth, ances­ try, and marriage, of course, create presump­ tions; but they may be overcome.”5 Brandeis later supplemented his list ofnon-binding hir­ ing preferences, telling Frankfurter that “other things being equal, it is always preferable to take...