Holy Hullabaloos, The Blog

Clerkin' for RBG: The Whole Essay

In case you are interested, here is the entire five page essay on Clerkin' for RBG that I reference in yesterday's post that has now received something like 4,500 hits because Elie Mystal at Above the Law totally rules and linked to it.  Thanks, Elie.

Download Clerkin2

 

Justice Ginsburg's Weird, Weird Cite

Look, I love Ruth Bader Ginsburg, don't get me wrong.  Where would I be right now without her (hint: it involves shoveling manure somewhere in the Midwest)?  She was a pioneering pioneer for gender equality when she was practicing law, and she's a damn fine justice.  But let's face it, sometimes she puts some pretty frickin' weird things in her opinions.  When I was clerking for RBG in 1998-1999, we clerks would marvel at drafts returned to us with phrases like "homed in on" added in the margins.  But, hey, what fun would it be to be a Supreme Court Justice with life tenure if you couldn't exercise your idiosyncracies from time to time--in other words, whenever the hell you want?

Here's the latest.  I was teaching a Supreme Court decision the other day in my environmental law class, in which Justice Ginsburg was the one dissent on an otherwise unanimous Court.  The case is about the Superfund law, or CERCLA.  One of the questions in the case is whether the federal trial court, or district court, properly apportioned damages between the two solvent defendants.  The parties in the case had not presented any evidence or advanced any arguments on the matter, but the district court decided on its own to split up the damages.  Addressing this issue, RBG said this:

Given the party presentation principle basic to our procedural system . . . it is questionable whether the court should have pursued the matter sua sponte.  See Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring) ("Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.").  Cf. Kaplan, von Mehren, & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193, 1224 (1958) (describing court's obligation, under Germany's Code of Civil Procedure, to see to it that the case is fully developed).

What's going on with this Cf. cite to a 1958 law review article about German civil procedure?  I love it!  The fact that it's a "cf" cite instead of a "but see" or something; the fact that it's to a law review article, that the article is from 50 years ago, and that it's about Germany.  Now, in many ways, the cite is not surprising--Justice Ginsburg started off as a scholar on comparative civil procedure.  If I'm not mistaken, she wrote a book about Swedish civil procedure or something.  And, she was also on the Harvard Law Review in 1958, so perhaps she edited this piece.  Perhaps it's even the piece that inspired her to go study comparative civil procedure.  If that's true, then maybe it's in some way responsible for her success in the legal academy which then translated to becoming a Supreme Court Justice.  So maybe in some ways she's paying homage to an article that changed her life.  I don't know.  But one thing I do know is that, as a cite in a Supreme Court opinion, it's really, really weird. 

(UPDATE: I've put the entire "Clerkin' for RBG" Essay here: Download Clerkin2)

Breyer Almost, but not quite, Bests Scalia for America's Top Justice Comic

For as long as there have been rigorous scientific studies of how many laughs each Supreme Court justice gets from the audience during oral argument, Justice Scalia has always come out on top.  And Justice Breyer has always come out right underneath him.  In the 2004-2005 term, for example, Scalia topped Breyer 77 laughs to 45.  In the 2006-2007 term, Scalia topped Breyer 54-30.  Well, the data are now in for the most recently completed term, 2008-2009, and once again Scalia and Breyer finished #1 and #2.  But this time around, Breyer made a real race out of it, getting 45 laughs to Scalia's 52.  In other words, instead of losing by 32 laughs or 24 laughs, this time Breyer came out only 7 laughs behind. 

And the race was even closer than the final numbers would suggest.  Going into the term's final argument session in April, Scalia held a close 44-40 lead, when Justice Breyer made his final push for comic supremacy.  In an argument held on April 20, Justice Breyer and Ken Starr were having a dialogue when Scalia cut in and asked his own question.  When Starr fumbled a bit, Scalia said: "If you can't answer that, I think Justice Breyer can."  At this point, Breyer saw his opening.  "He doesn't actually have the right to ask me questions," Breyer said, which earned him a well-deserved "(Laughter)".  44-41.

Breyer's high point came the next morning, when he made a joke about his underwear.  The case involved whether a strip search of a public school student violated the fourth amendment. There was a lot of talk at oral argument, therefore, about whether it was reasonable to assume that a student might hide illegal contraband in his/her underwear.  Justice Breyer engaged the lawyer, a Mr. Wolf, in the following "(Laughter)"-inducing exchange:

Justice Breyer:  It's not like you have any studies on this.  But I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear.  I'm not saying everyone would, but I mean, somebody who thinks that that's a fairly normal idea for some adolescent with some illegal drugs to think of, I don't think he's totally out to lunch, is he?

Mr. Wolf:  Well--

Justice Breyer: Do you have any studies on this?  I doubt it.

Mr. Wolf:  No, but neither -- neither do they.

Justice Breyer:  So what am I supposed to do?  In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?  And in my experience, too, people did sometimes stick things in my underwear--

(Laughter.)

Justice Breyer: Or not my underwear.  Whatever.  Whatever.  I was the one who did it?  I don't know.  I mean, I don't think it's beyond human experience, not beyond human experience.

 "(Laughter)"?  More like "(Ewwwww)." 

In any event, this turned out to be Breyer's last hurrah, because as soon as the very next argument, Justice Scalia returned to his old form and made Breyer look like Joan Rivers at the Montreal comedy festival, earning six laughs in the next two arguments to Breyer's two, and then finishing off strong to best Breyer 52-45. 

The other justices finished in the following order, with laughs noted in the parentheticals: Roberts (29); Souter (14); Kennedy (9); Stevens (6); Ginsburg (5); Alito (3) and Thomas (zilcho).  Interestingly, the retiring Justice Souter had a particularly good year.  His 14 laughs were twice as many as he got in 2006-2007.  I guess he was in a particularly giggly mood last year, looking forward as he was to his new career as a hermit in the New Hampshire hills.

Supreme Prudes

Remember way back when in the fall when I reported on the oral argument in the Supreme Court's so-called (by me, anyway) "fuck and shit case"?  The case involved a challenge by various television broadcasters to the FCC's relatively new practice of fining "fleeting expletives," like when Bono said "fuck" at the Golden Globes or Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse?  It's not so fucking simple" at the Billboard Music Awards.  The most interesting thing about the oral argument  was that nobody--not the Justices, not the lawyers, nobody--said "fuck" or "shit."  Instead the lawyers used euphemisms like "the f-word" or "the f-bomb."  Awesomely, Justice Scalia made up a euphemism for "fuck" right in the middle of the oral argument, saying to counsel at one point, "Don't use golly-waddles instead of the F-word."  This "golly waddles" reference attracted a lot of attention in the blogosphere, and I expect that my own investigative contributions to the discourse--interviewing language expert Steve Pinker about the phrase's lingustic origins and ex-porn-screenwriter Eric Spitznagel about the phrase's erotic potential--will soon be earning Holy Hullabaloos: The Blog our first of many Pulitzers.

Anyway, the case is in the news again.  Not because of how the Court actually decided the case (it held that that the FCC had not violated the Administrative Procedure Act by changing its position on fleeting expletives without sufficient justification and explanation; the Court was not asked to consider the first amendment arguments in the case, which will be addressed by the second circuit on remand) but because it turns out, according to Justice Ginsburg, who made the revelation at a speech she delivered last Friday, that the reason the lawyers did not say "fuck" or "shit" during the oral argument was because "the lawyers were alerted that some of the justices might find that unseemly, so only the letters 'f' and 's' were used in our court."  Got that?  Some of the justices thought it would be "unseemly" for the words "fuck" and "shit" to be used within the hallowed chambers of the marble palace, and so the Court (probably through the Chief Justice) told the lawyers to use euphemisms instead.  Yeeks.

Ginsburg did not reveal which Justices thought it would be unseemly to have to hear these awful, horrible words.  Nor was there any indication that the justices had instructed the lawyers to use the phrase "golly waddles" instead of "fuck." (Wouldn't that have been glorious?)  So, one question that naturally comes to mind is which justices are most likely and least likely to have been the ones to have issued the order not to say "fuck" and "shit"?  Moreover, one wonders whether this issue will make it into the Sotomayor confirmation hearings in July?  Should the Senate Judiciary Committee ask her point blank if she would mind it if a lawyer said "fuck" in the courtroom?  Or what she thinks of "golly waddles" as a possible euphemism?  God, I hope that comes up.

Thoughts on these critical issues, as always, are very welcome in the comments.

RBG Grants a Stay: A Recollection

So yesterday, Justice Ginsburg issued a stay of a lower court's approval of the whole bankruptcy deal involving Chrysler and the sale of a bunch of its assets to Fiat and whatnot.  Though it doesn't happen often, individual justices of the Supreme Court have the authority to grant stays of lower court decisions when they believe that the stay is necessary for the Supreme Court to decide whether to decide the case on the merits.  In other words, if a lower court decision would result in some irreversible action (like the whole Chrysler deal), and if there's a plausible argument that the lower court decision involves some legal issue that might be worthy of Supreme Court review, the adversely affected party might ask a justice to issue an emergency stay of the lower court decision so the whole Court will have some time to decide whether in fact the case is worthy of review.  The request goes to the justice who has authority over the geographical area where the case comes from; Justice Ginsburg is the justice in charge of the second circuit area, which includes New York, and so the request went to her.  The justice has the option of either just deciding whether to grant the stay him or herself, or alternatively to bring it to the whole Court to decide whether to grant the stay.  A decision to grant a stay doesn't mean that the Court will actually go ahead and decide the case on the merits; it just means that the Court thinks the issue is important enough that it needs some time to consider whether to decide the case on the merits. 

When I was clerking for Justice Ginsburg in the 1998-1999 term, I had occasion to work on one of these stay requests.  It was late in the term--maybe June or something--and as usual I went on a long lunch break.  I can't remember whether it was one of those days when I went back to my rat-infested apartment to eat and watch a rerun of Good Times or whether I went to the Au Bon Cafe with friends or what, but I remember coming back after lunch to find this big file on my desk involving a request for an emergency stay in a really famous religion case--one in which I discuss in Holy Hullabaloos (available now from amazon).  Now, I'm good at certain things, but one thing I'm not good at is dealing with emergencies.  Luckily, there generally aren't any emergencies at the Court.  Clerks do a lot of work, but you always know what's coming and you generally have a good amount of time to do it.  This allows you to plan your work in a rational fashion and not have to worry that something unexpected is going to come up and bite you in the ass.  Well, this file bit me on the ass, and I freaked out.  I said something like: "Ahhhh" and wet myself.  OK, I didn't wet myself, but I got very nervous and worried and also a little irritated because now I was going to have to do all this work to figure out what the stay application was all about, which meant that I wasn't going to have time to watch more television or work on my unbelieveably horrible novel about a blueberry muffin called "Arrivederci, Loser," the title of which was based on a piece of hate mail that my wife once received from a former nutso friend who thought that my wife had abandoned her for me (she had). 

The case in which the stay was requested is too confusing to describe fully here.  It basically involved a first amendment Establishment Clause (church/state separation) challenge to the state of New York's decision to grant a community of Satmar Hasidic Jews its own school district so it could administer publicly funded assistance to disabled children in the community.  Back in 1994 the Court had invalidated the first version of this arrrangement in the Kiryas Joel v. Grumet case that I discuss in the book.  In subsequent years, the state made several attempts to comply with the Court's decision in that case while still giving the Satmars the authority they wanted.  The thing I worked on was a request to stay a lower court decision holding the most recent attempt unconstitutional.  Luckily for me, Justice Ginsburg, as usual, knew exactly what to do and didn't really much need my help and so it all turned out fine (the Court in fact granted the stay but didn't end up hearing the case, though a few justices thought they should have), but I still sharply remember the feeling of YIKES I had coming back to lunch to find the latest iteration of a famous case in my field of interest sitting on my desk.

Clerkin' for RBG, Part 4

Part 3 here.

    What about RBG herself?  Usually the first thing people ask me about her is whether she is really as short as she seems in pictures. It is true that Justice Ginsburg is short, maybe even quite short.  But listening to people who haven't met her talk about how short she is could lead you to believe that she is some sort of miniature person who could fit in your shirt pocket or the palm of your hand.  In fact, she cannot fit in these tiny places.  The second thing people ask is whether she is as serious as she seems in interviews and public appearances.  Indeed, it's true that RBG is an extremely hard worker who tends to be very businesslike when it comes to her job.  For example, unlike other judges who might wander back into the clerks' offices to chat about a case or do a few yoga stretches, if RBG wanted to talk to one of us about something, she would buzz us on our phone intercoms.  The jarring BBUUUUZZZZZ interrupting our research or memo-writing or trout fishing or whatever would inevitably startle the hell out of us.  Bill decided at some point during an early month that it would be appropriate upon hearing the buzz to drink a tall calming glass of scotch before picking up, and although we never actually got the scotch, we did regularly pretend to take a drink under these circumstances for the rest of the year.  Indeed, to this day, if I happen to smell the perfume RBG used to regularly wear, I feel the need to get right to a fake bar, even if the woman who is wearing it is just a friendly nun I happen to be tickling at the time.

    Nonetheless, people often overstate RBG's seriousness.  As I once showed in a profoundly flawed scientific study of Supreme Court humor, for example, Justice Ginsburg gets infinitely more laughs from the bench with her jokes than Justice Thomas does.  As I also pointed out in that article, RBG, contrary to popular opinion, does in fact laugh herself.  Not like a hyena or anything, but she does chuckle from time to time.  And then there was the time that she took us to a Gilbert and Sullivan production at a local high school and played along with the director's invitation to come up to the stage during intermission to dance with some other cast and audience members.  The sight of a Supreme Court Justice on stage twirling around with her hands in the air to a goofy song next to a spinning six year old girl is not one that I can soon forget, no matter how many times I undergo hypnosis.

    Another thing people generally ask me about is whether I had any contact with the other eight Justices.  The answer is not too much, but there is a nice custom at the Court whereby each Justice's group of clerks gets to take out each Justice for lunch sometime during the term.  We had pizza with Justice Scalia, Indian food with Justice Breyer, and classic American with Justice Stevens.  The only Justice we didn't have lunch with was Justice Kennedy, because we were informed by his clerks that we would have to get dressed up to be seen with him in public.  Since we generally showed up to work in bathrobes and hair curlers, we declined the invitation.  I'm often asked about who is the most "normal" of the Justices, and the easy answer is Justice Thomas.  CT's jurisprudence may threaten to send the nation back to the middle ages, but he did seem like a genuinely friendly and kind and down to earth person, and I say this not just because he laughed at my "Why-did-the-guy-get-fired-from-the-orange-juice-factory?-Because-he-couldn't-concentrate" joke.

    So, how would I summarize my year clerking for RBG?  Nearly any clerk will tell you that working at the Court is an unforgettable experience and that it was a privilege to work on the nation's most important legal issues with one of the nation's greatest jurists.  I'm sure I would say the same thing if I wasn't such an ass.  It is true that I will probably never have another job that will come close to equaling the excitement of that year, and I do owe Justice Ginsburg a lot for (inexplicably) hiring me to be her law clerk.  But when someone asks me what I remember most clearly about the year, I don't think first of the legal issues or oral arguments.  Rather, my mind leaps immediately to that one magical February night when, emboldened by four margaritas, I sat shirtless in the Chief Justice's chair screeching "Order in the Court" over and over until the guards finally dragged me out of those majestic bronze doors and threw me headfirst down the marble stairs.  Have I mentioned how many stairs are out there?  Damn, that hurt.

    Ok, you can leave the stall now.

Clerkin' for RBG, Part 3

Part 2 here.

    What is it exactly that the clerks do?  Well, besides giving endless tours to friends and family of the Court’s inner recesses—the courtroom, library, basketball court, tanning salon, IMAX theater, mid-sized trout hatchery, etc. etc.—they do basically three things.  First, most write what are called “cert memos,” which summarize the petitions for certiorari (about 7,000 petitions come in each year; the Court grants about 100 of them) and recommend either granting or denying each one.  The Justices generally look for cases that present important issues of federal law upon which lower courts have disagreed.  A decision that is either “factbound,” meaning that the result turned on the lower court’s application of facts to law rather than its resolution of a legal issue, or “splitless,” meaning that there is no disagreement among the lower courts, is unlikely to be reviewed.   

Even if a case is neither factbound nor splitless, the Court will also deny the case if there is some procedural hurdle that would prevent it from actually addressing the important legal issue, or if there is some other hidden “vehicle problem,” unless, of course, the clerk screws up and recommends granting a case without having figured out that such a problem exists.  Most years, the Court will mistakenly grant at least one case.  When it “dismisses” the case as “improvidently granted” (commonly known as “DIGging the case”), the clerk at fault will feel like a total jackass, and everyone will look funny at the clerk and say things behind the clerk’s back like “that clerk is bad” or “that clerk sucks” or “have you noticed how ugly Wexler is?”  This is, as you might imagine, the clerk’s worst nightmare, which probably explains why my entire year I didn’t recommend that the Court grant a single one of the 250 or so petitions I worked on, except for the one I fucked up and recommended the Court grant despite a massive and fairly obvious vehicle problem, which luckily one of my colleagues pointed out before the Court could consider the petition.

 

The second thing that clerks do is help the Justices prepare for oral argument.  All the Justices use their clerks differently for this purpose.  Most require their clerks to prepare “bench memos,” papers that range anywhere from three to fifty pages long, which summarize the parties’ arguments and offer the clerk’s own analysis of the relevant legal issues.  Some Justices discuss the cases intensely with their clerks; RBG tended to do relatively little of that (clerks generally refer to the Justices by their initials).  In fact, one of the great things about my job was that, being generally brilliant and having been on the bench for twenty years already, RBG basically knew everything already and could make up her mind about a case without much help from her clerks at all.  This made the job fairly easy.  Some Ginsburg clerks have been known to work sixteen hour days, but I honestly can’t imagine what they spent their time doing.  As for me, I generally worked from 9 to 6 and spent my lunch hours at home in my rat-infested Capitol Hill apartment watching reruns of Good Times.  Dy-no-mite! 

 

Third, the clerks usually write a first draft of the opinions that their Justice has been assigned to write.  Some people find this shocking, but it really is not that big a deal.  At least in Justice Ginsburg’s chambers, the boss would give us a detailed outline to work from and then, once we turned in our drafts, totally rewrite them.  The best you could really hope for as a clerk is to get a little pet phrase or goofy word or other quirky something-or-other into the final opinion.  For example, there may or may not be one Ginsburg opinion from our term which, when read backwards, will summon the demon Beelzebub from the seventh level of hell to earth where he will horribly murder the entire human race.  On a more innocuous note, when Justice Kennedy was assigned to write an opinion concerning the import tariffs applicable to permanent press pants baked in giant pants ovens in Mexico, my co-clerk Bill and I worked very hard to convince the Kennedy clerk working on the case to get the words “trousers” and “slacks” into the final opinion.  “Trousers” made it into the U.S. Reports, but “slacks” is absent, although whether this is because the clerk failed to put it in his draft or because Justice Kennedy took it out we cannot be sure.

 

Next and final installment: What about RBG herself?

 

Clerkin' for RBG, Part 2

First Part here.  (I should note that since this first post, I remembered that I had written another version of this piece that was a little shorter and funnier; this new version substituted a different paragraph for the last paragraph of the First Part that I posted last week--I include the substituted paragraph here).

    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 gun battles on the Court’s spiral staircase.  As it turned out, though, very little 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 and involved few, if any, actual shootouts. 

            Before turning to my specific experiences, a few facts about clerking at the Court.  Although the main character of Brad Meltzer’s best-selling 1997 thriller The Tenth Justice may have walked up the marble steps to enter the Court through its majestic bronze doors on his first day of work as a law clerk, the fact is that nobody who works at the Court ever, ever walks up those steps.  It might be a nice idea, but do you know how many steps are out there?  Somewhere in the universe of a fuckload, I would guess.  The side door is much easier to use, as it has only four or five steps to climb at most, and the steps are small. Meltzer’s account turns out to have other errors as well.  For instance, although the novel’s protagonist might have worn his “lucky boxers” to work on that first day, the fact is that nobody who works at the Court ever, ever wears underpants.

            Almost all the Justices hire four law clerks.  Most of the clerks come from a handful of top law schools.  People are always asking me, “how did you get that job?”  I tell them that the one thing in the world I’m actually very good at is taking law school exams.  Indeed, I can write an essay about a complicated set of totally made up facts under extreme time pressure as good as just about anybody.  It turns out that this ability has no relationship whatsoever to being a good lawyer, being a good law clerk, being generally smart, or anything else, but it did go a long way to getting me my job at the Court.  That and the fact that two of the professors I bribed happened to include Justice Ginsburg’s former constitutional law professor and a guy who was her husband’s roommate at Cornell. 

             Clerking at the Court was an intimidating experience.  Part of it, of course, is that the clerks suddenly find themselves working on the nation’s most important cases only a year or two after graduating from law school.  But one can easily make too much of this, since clerks do not render any decisions or write anything that does not get completely rewritten by the Justices.  The real intimidating thing about working at the Court for me was being surrounded by thirty-five peers who were also excellent law school exam takers but who, unlike me, were genuinely brilliant and extraordinarily talented.  Several of my colleagues are already famous.  One helped draft the new Iraqi constitution; another has argued several cases in front of the Court and basically rewritten American criminal law.  One is the three-time winner of the World Stratego Championship and recently sung the national anthem at the Pittsburgh Pirates’ home opener.  That last bit’s a lie, but you get the idea.

 

Next installment: What do the clerks actually do?

Clerkin' for RBG, Part I

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?

Supreme Court Humor Update: Breyer Kicks Ass, Takes Names; Roberts Makes (possibly) Dirty Joke

Well, the December oral arguments are over, and so once again it is time for a Supreme Court humor update (see here for the last update).  The December sitting was notable for Justice Breyer's incredible, Chris Rock-like performance, registering a phenomenal eleven "(laughter)"s in only a handful of arguments.  Scalia, it would seem, took the sitting off, or maybe he had just seen a sad movie or something, because he was only able to eke out a mere four laughs from the audience, pathetic by his standards.  This turn of events gave Breyer new life in the 2008-2009 humor standings, although Justice Scalia still holds a significant lead.  Here are the current standings, with December laughs in parentheses:

Scalia        29 (4)

Breyer        21 (11)

Roberts    19 (4)

Souter        9 (2)

Kennedy      8 (3)

Stevens        5 (2)

Alito             2 (0)

Ginsburg        1 (1)

Thomas        come on, who is he kidding?

One other interesting note from the December arguments.  Did the Chief Justice make a dirty joke in the case of Phillip Morris v. Williams?  After one of the lawyers described the decision of a state court on some state law matter, the colloquy went like this:

Chief Justice Roberts:  But then I think your--

Mr. Peck:  But--

Chief Justice Roberts:  But I think your answer--go ahead with your but.

(Laughter)

 

I don't know.  You be the judge.  What do you think?