Fountain Pens and Typewriters: Supreme Court Stenographers and Law Clerks, 1910–1940

Abstract

Fountain Pens and Typewriters: Supreme Court Stenographers and Law Clerks, 1910-1940 CLARE CUSHMAN Until the law clerk function at the U.S. Supreme Court became standardized in the 1940s, wide variations in hiring, tenure, duties, and remuneration existed. Nonethe­ less, historians have tended to divide the staffing culture ofthe Fuller, White, Taft, and Hughes Courts neatly into two clerkship models. One is the “modem” model, which is characterized by recruitment of clerks from among the top students at elite national law schools such as Harvard, Yale, and Columbia, with the clerks given substantive legal research duties, rotated after a year or two, and then mentored into stellar careers. Horace Gray, Oliver Wendell Holmes, Jr., Louis D. Brandeis, Harlan Fiske Stone, William H. Taft, Benjamin N. Cardozo and Charles Evans Hughes practiced this model, which gradually became the institutional norm. Many of their clerks were later interviewed or wrote memoirs about their experiences working for their Justices, so early use of the modem model is well documented.' The “clerical” model, practiced by the majority of the Justices between 1886 and 1940, is characterized by the hiring of students or graduates from local Washington law schools to serve for multiple Terms. These clerks, often called “private secretar­ ies” or “career stenographers,” have been largely ignored by historians because they performed dull clerical tasks for their Justices and did not write memoirs touting their experiences. Indeed, Justice David J. Brewer dismissed the clerk function in 1905 as “simply a typewriter, a fountain pen, used by the judge to facilitate his work.”2 In 1914, a reporter noted that the Supreme Court clerks’ purpose was simply “to relieve their superiors of much of the drudgery that is involved in conning over the briefs and records that are submitted in every case.”3 However, recent scholarship by Barry Cushman on the clerks of Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler reveals that 40 JOURNAL OF SUPREME COURT HISTORY the pre-1940 clerkship was more varied than these two models suggest. He shows that each of the “Four Horsemen” recruited and de­ ployed clerks in ways that cannot easily be categorized as either “modem” or “clerical.”4 Although Van Devanter and McReynolds each recruited a clerk from Harvard Law School to serve for a single Term, the majority of their clerks were from local D.C. law schools and had been working as stenographic clerks in the government. Van Devanter retained a clerk for as many as nine consecu­ tive Terms and McReynolds for seven. Both experimented with having two clerks in Chambers but then reverted to one. They treated their clerks like secretaries, not as legal research assistants, although they did ask them to summarize certiorari (cert) petitions. Sutherland recruited his clerks from a local law school, George Washington Uni­ versity Law School, but, unlike Van Devanter and McReynolds, he assigned them to perform substantive legal research to support his opinion-writing. Butler hired a local Catholic University law graduate for his entire sixteen-year tenure on the Court, which at first glance suggests the old-fashioned “career secretary” model, but his clerk performed functions that were decidedly modern. When asked about his duties, the clerk said he wrote “first drafts of many opinions, expressing the Justice’s views so accurately that the drafts often required few changes.”5 Butler almost always employed a second law clerk, often from University of Minnesota Law School, who served stints ranging from one to eight Terms. These clerks performed clerical work and legal research and summarized cert petitions. What about the clerkship practices of other members of the Court who served alongside the Four Horsemen in the 1910s-1930s, specifically, Edward D. White, Horace H. Lurton, Joseph R. Lamar, Joseph McKenna, Mahlon Pitney, John H. Clarke, Edward T. Sanford, and Owen J. Roberts— Justices whose clerks have not been the subject of scholarly attention?6 (William R. Day is not considered in this article because ofhis unusual practice ofhiring his sons, who lived at home, as his clerks.) An examination of the clerkship practices utilized by these eight Justices reveals that they subscribed consistently to the old-fashioned clerical model. Although lacking in...