A Remembrance: Mr. Justice Brennan October Term 1960

Abstract

A Remembrance: Mr. Justice Brennan October Term 1960 Richard S. Arnold From July 1960 to July 19611 served as law clerk to Mr. Justice Brennan-maybe the best job I ever had. In those days, each of the Justices, as a rule, had two law clerks. To this rulethereweretwoexceptions: JusticeDouglas had one, and the Chief Justice had three. In­ steadofa secondlawclerk, JusticeDouglas had asecondsecretary, andtheword among thelaw clerks (possibly, as a class, the greatest gossips theworldhaseverseen) was thatheneeded two secretaries, not for court work, but to help him type his books. The extra complement for the Chief was due to the fact that his office had special duties in connection with what was then called the Miscellaneous Docket, made up mainly ofinformapauperis cases. The Chief also had the services of the law clerk for the retired Justices (Reed and Burton), neither of whom was then doing anyjudicial work ofhis own, so far as I knew. I did not meet Justice Brennan until I came down to Washington to start work. One did not applyfor a clerkship then. At least, one did not applytoJustices Frankfurter and Brennan, and they were the Justices I knew the most about, sinceIwasastudentat theHarvardLawSchool, whichboth ofthem had attended. JusticeBren­ nan’s law clerks were selected by Paul Freund, at that time CarlM. LoebUniversityProfessor and certainly one of the leading figures of this century in the study of constitutional law and thehistory ofthe Supreme Court. (He was also General Editor of the Holmes Devise History of the Supreme Court of the United States.) Justice Brennan’s confidence in Professor Freund was so great that the task ofchoosing lawclerks was delegated entirely to him. If you were picked, Mr. Freund called you into his office and asked you if you wanted the job. This occurred without warning and with­ out any gathering of resumes, references, tran­ scripts, orthe like. The Frankfurter clerks were selected, much, I suppose, in the same way, by Professor Albert M. Sacks, who later became Dean of the Law School. Justice Frankfurter usually insisted on law clerks who had already served with a court of appeals, but Justice Brennan had no such prerequisite. So, in December of 1959, the middle of my third year, I was called to Professor Freund’s office, offeredthejob, andacceptedon thespot. A letter from Justice Brennan confirming the appointment came in due course. What a contrast this is with the present-day system, which appears to me, from the admittedly imperfect vantage point of an inferior court, to be chaotic, degrading, and nerve-racking, espe­ cially to the applicants for clerkships. (Warn­ ing: this piece suffers from perhaps the most commonvice ofreminiscences-thefeelingthat things were wonderful in the past and have de­ clined steadily ever since.) What was Justice Brennan like as a boss? No one, I guess, is perfect, but I really cannot remember a single reason to complain about theJustice, his approach tothelaw, hisrelation­ ships with the other members of the Court, or the wayhe treated his lawclerks. In addition to the two law clerks, there were two other staff membersin chambers. MaryFowler, nowMrs. Brennan, was the Justice’s secretary. Olyus Hood was his messenger. Mr. Hood had a small desk in one corner of the room where Maryalsoworked. Hehad awonderfulsenseof humor and was especially good at calling the White House, the Mint, and other parts ofgov­ ernment to arrange tours for visiting friends and family, always announcing himselfimpres­ sively as calling from Justice Brennan’s cham­ bers. No one told ushow to do thejob. One ofour immediate predecessors, Jerry Nagin, was still in the building when we arrived (my co-clerk was Dan Rezneck), and Jerry gave us some 6 JOURNAL 1991 useful pointers, but there was nothing like an orientation program, a law clerks’ manual, or similar formal indoctrination. The Justice expected us to arrive fully equipped and ready to go to work. Either we lived up to his expec­ tations, or he was too tolerant to point out otherwise. To say that he was unfailingly kind and courteous, especially to subordinates, would be an understatement. He was delightful to be around, and simply to be in his presence was an education. If he found something...