As everyone who follows the news knows by now, Justice Ginsburg recently had surgery for pancreatic cancer. This has sparked speculation about whether she might retire soon. I don't know anything about the details of her illness; although I clerked for her during the 1998-1999 term, and although we got along very well, we do not keep in touch. I do know that she is about the toughest person you will ever meet, and if anyone can beat pancreatic cancer, it's her. I definitely wish her and her family all the best.
The news reminded me of a piece I wrote a couple of years back called "Clerkin' for RBG," which related some of my memories from my clerkship. I thought it was a good piece, but nobody seemed interested in publishing it. I thought this would be a good time to put it on the blog. It's long, though, so I'll have to post it in installments. Here's installment #1:
When former Supreme Court law clerk Edward Lazarus published Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court in May of 1998, curious readers bought the book in droves to find out what really happens behind the scenes at the nation’s highest court. The law clerk community, however, flipped out. Claiming that Lazarus had breached his confidentiality obligations to the Court, critics called his actions “wrong,” “offensive,” and a “betrayal.” One prominent sitting judge who previously clerked at the Court argued that Lazarus had violated several canons of the Supreme Court Clerk Code of Conduct as well as “the bond of loyalty to his Justice, the other Justices, and his fellow clerks.” Charges like this are enough to make any former law clerk hesitate to say just about anything about his or her time working at the marble palace.
On the other hand, the temptation to talk is strong. Whenever anyone finds out that I clerked for Justice Ruth Bader Ginsburg during the 1998-1999 term—whether it be a student, a newly made friend, or just some random stranger that I’ve accosted on the street or in the men’s room—they inevitably want to hear about my experiences. What was it like working there? Was Justice Ginsburg nice? Is it true that Justice O’Connor made her clerks do aerobics? Does Felix Frankfurter’s ghost really haunt the Great Hall? What does it feel like to sit shirtless in the Chief Justice’s chair screeching “Order in the Court” after four margaritas? Because I get tired of talking about the only other interesting experience I’ve ever had (side note: do not plan vacations on the web while drunk, or you too might decide that spending a frozen night in a Quebec Ice Hotel sounds like a good idea), I often feel the urge to mention a few tidbits from that year. And although I always refrain from divulging any confidential secrets, I generally say something, usually before the guy even comes out of the stall.
In this Essay, I will try to walk the same precarious line that I tiptoe whenever I talk about the twelve months that I worked for Justice Ginsburg. I will reveal nothing that would shed light upon the inner workings of the Court, at least nothing that has not already been prominently divulged (the fact that clerks take part in a “cert pool,” for example, to help the Justices decide which cases to hear, is an example of a piece of purportedly inside information that is already widely known). I will discuss no specifics about the particular cases decided when I was there, and I will not talk about any substantive conversation that Justice Ginsburg had with me, or with anyone else, in the event that I happened to overhear such a conversation through the plastic cup I regularly held between my ear and the door to her office.
Lazarus published his controversial book right before I was about to start clerking, so coming in I had visions of a year filled with ideological tension, backbiting intrigue, and wild shootouts on the Court’s spiral staircase. As it turned out, though, nothing of the sort ever took place. Perhaps it was because our term was conspicuously devoid of any cases involving hot button issues like abortion or affirmative action (the two cases I worked hardest on dealt with insurance fraud and the statute governing removal of cases from state to federal court), or maybe it was because the thirty-six of us who clerked that year were a friendly bunch, but the term was exceedingly quiet from an ideological perspective. One liberal colleague observed toward the beginning of our tenure that he thought one of our conservative colleagues wanted to start a right-wing cabal among the clerks but that the guy simply lacked the charisma to pull it off. Other than that, though, there was very little of the conservative-liberal infighting that Lazarus claims took place when he worked at the Court.
Next Installment: How many steps are there leading up to the front doors of the Marble Palace?