Justice Hugo Black and His Law Clerks: Match-Making and Match Point

Abstract

Justice Hugo Black and His Law Clerks: Match-Making and Match Point TODD C. PEPPERS* Introduction What greater or better gift can we offer the republic than to teach and instruct our youth? —Marcus Tullius Cicero1 Much has been written about Supreme Court law clerks and the important role that they play in assisting the Justices processing the work of our nation’s highest court. While law clerks in the late nineteenth century pri­ marily served the role of stenographers and research assistants, today these young men and women—all recent graduates of elite law schools—work in close quarters with their in­ dividual Justices, reviewing petitions for writ ofcertiorari, preparing the Justices for oral ar­ gument, and assisting in the drafting of legal opinions. At the end of their clerkships, the clerks find that they are faced with a dizzying selection ofjob opportunities—from teaching at a top law school to becoming a highly com­ pensated associate at an elite law firm (withthe attendant six-figure signing bonus) or working for the federal government. As a scholar who has studied law clerks for the last decade, I have found that often the most fascinating aspect of the “clerkship institution” lies not in the job duties or subse­ quent professional achievements oflaw clerks, but in the personal bonds that form between a small handful of the Justices and their clerks. While the modern Supreme Court Justice is authorized to hire four law clerks each Term (the Chief Justice can employ five clerks), in the early decades of the twentieth century, the JUSTICE HUGO BLACK AND HIS LAW CLERKS 49 Justices hired only one or two clerks per Term. The combination ofa smaller staff, fewer lawclerk responsibilities, and home offices for the Justices meant that the clerks had the rare opportunity to interact with their Justices in less formal and more relaxed settings. Thus, we have wonderful stories of Oliver Wendell Holmes, Jr. and his “legal secretaries,” who balanced the Justice’s checkbook, accompa­ nied him on sightseeing jaunts, and reveled in the Magnificent Yankee’s “tall talk” of the Civil War. Or tales of Felix Frankfurter and his clerks, with whom he fiercely debated the finer points of art, music, and politics while embracing them as surrogate sons. Even the poor souls who clerked for James McReynolds have left behind invaluable glimpses into the personal life of their employer, such as the recently published diary of former law clerk John Knox and his captivating account of suf­ fering through a year with the grouchiest man to have sat on the Supreme Court Bench. After reviewing the law-clerk files in the personal papers ofJustice Hugo Black, as well as talking with his children and his former law clerks, it became quickly apparent that the Black law clerks were also fortunate enough to have enjoyed a warm and lasting relationship with their Justice. While a few former Black law clerks have written about their working relationship between the Justice and his law clerks, this article briefly discusses two main elements ofthe clerkship experience that have not been fully fleshed out: the Justice’s role as an Alabama-born Pygmalion to a generation of young clerks and the important role that tennis played in the clerkship experience. Mr. Justice Black and His Clerks Like other Justices on the Supreme Court, Jus­ tice Black hired law clerks to assist with the work of the Court. Each year, his law clerks would assist in reviewing cert, petitions, do­ ing legal research, and editing opinion drafts. These job duties, however, were only one di­ mension ofthe Black clerkship. As the Justice himself once remarked to a law-clerk appli­ cant, “I don’t pick my law clerks for what they can do for me, I pick my law clerks for what I can do for them.”1 And what the Justice could “do for them” extended beyond legal training. Hugo Black, Jr. explains that his father took a personal in­ terest in all ofhis young clerks and “attempted to change their lives.”2 “[H]e was truly inter­ ested and concerned about the way they con­ ducted their private lives as well as the way...