This blog recently featured a series of posts from former law clerks of the late Justice Antonin Scalia. They glowingly portray a stimulating professional and personal experience. Christopher Landau remembers regular conferences in which clerks actively argued and engaged with Scalia, while Danielle Sassoon recalls Scalia’s annual reunion, for which the “centerpiece of the evening was a roast.” If only we all could clerk.
It wasn’t always that way. In 1905, Justice David Brewer dismissed the role of his sole clerk as “simply a typewriter, a fountain pen, used by the judge to facilitate his work.”
For the Journal of Supreme Court History, Clare Cushman reviews the practices and lives of clerks – with some choice anecdotes – before the institutionalization of the “modern” clerkship model in the 1940s (which some earlier Justices pioneered, including Oliver Wendell Holmes, Louis Brandeis, and Benjamin Cardozo).
Justices following the “clerical” model had decidedly different priorities than one’s law school and professorial recommendations. (Many clerks were still completing their legal studies while working.) Far more important was whether one could write shorthand and take dictation.
Ambitious Leonard Bloomfield Zeisler learned this firsthand. Despite graduating with highest honors from the University of Chicago and completing six years in private practice at the prestigious Zeisler & Friedman (his father’s firm), Zeisler lost his job when the October Term 1918 had just barely begun. Chief Justice Edward White simply “could not use” him due to “his lack of stenographic knowledge.”
Fortunately for Zeisler, he soon found himself a position at the Department of Justice making double the salary (from $2, 000 to $4, 000). Adequate compensation was a constant struggle for clerks – who, Zeisler being an exception, could not generally expect significant post-clerkship raises and bonuses. Demonstrating both the insufficiency of the salary and the necessity of the services clerks provided, some Justices, including Chief Justice William Taft, sacrificed personal funds to supplement the meager congressionally approved salary the clerks received.
Not all of the Justices were so generous. Cushman relates the tale of Milton Musser, law clerk in October Term 1939 for Justice James McReynolds. In May, Musser secured a job that would begin in September, but he stalled several months before informing the Justice, lest McReynolds “kick like a mule, ” as Musser wrote his mother, and deny him summer pay. McReynolds had stiffed others before, but Musser received his funds.