“Spreading the Wealth”: Justice Tom C. Clark’s Wide-ranging Efforts to Open the Doors of the Law Clerk Ranks

Abstract

“Spreading the Wealth”: Justice Tom C. Clark’s Wide-ranging Efforts to Open the Doors of the Law Clerk Ranks CRAIG ALAN SMITH* Introduction Associate Justice Tom C. Clark retired from the Supreme Court at the conclusion of its 1966 term to avoid even the appearance of impropriety when his son, Ramsey, became the U.S. Attorney General. “I believe it would be best for me to retire,” Clark wrote one well-wisher, “Litigants have enough problems without having a father-son psychology to face. And while there is no actual conflict the potential is there and the appearance ofjustice is as important and effective as the real thing.”1 Clark had served on the Court eighteen years, and he began his retirement with a three-month, state-sponsored short when he contracted hepatitis in Thailand. During Clark’s absence from the country, a then unknown political science instructor at Hofstra University, Howard Ball, who laterbe­ came a renowned constitutional scholar, sent a questionnaire to all of Clark’s former law clerks. Ball wanted the clerks to rank Clark’s attitude towards certain civil liberty claims, a prospect one clerk found “really rather silly,” and another described as “extremely resultoriented .” Not surprising, none of Clark’s clerks cooperated, and one, Charles Phillips, goodwill trip around the world, which was cut castigated Ball with a “personal observation concerning the nature of your approach.” “I must tell you that I think your questionnaire is extremely shallow,” Phillips wrote, “and, in the absence ofanything to correct this impres­ sion, reflective of a premise which appears to be based upon a nearly total ignorance of the judicial process.”2 Among themselves, Clark’s clerks were vociferous in their contempt for Ball’s efforts. Larry Temple wrote, “Frankly, I have serious 130 JOURNAL OF SUPREME COURT HISTORY doubts about the value or validity of what this man is doing,” and Donald Turner, considered the “dean” of Clark’s former clerks, wrote, “[He] is obviously embarked on a foolish enterprise, and deserves no help from us.... I doubt very much that there is any need for me or anyone else to endeavor to organize a boycott of Mr. Ball.”3 Scholars like Ball are now familiar with the resistance of former clerks, who often maintain a commitment to secrecy that pre­ vents them from revealing any but the most innocuous descriptions of their service. Cer­ tainly, some clerks have been more forthcom­ ing than others, particularly when their con­ tributions remain anonymous.4 Most former clerks who speak for attribution, however, do so from the benefit ofselective memories long after their service has ended. In her biogra­ phy ofJustice Clark, his daughter, Mimi Clark Gronlund, relied on questionnaires sent to his former clerks for descriptions of their rela­ tionships with him. This effort yielded an­ swers from at most eight of Clark’s fortyseven clerks, whose recollections ranged be­ tween eighteen and forty-two years after their clerkships ended.5 Similarly, political scientists Todd Pep­ pers and Artemus Ward, in their work on the role of clerks, received the cooperation of about half a dozen of Clark’s former clerks, but again this was close to forty years after the clerks’ own experiences.6 This relatively small sampling did furnish fairly accurate depictions of the duties and responsibilities of Clark’s clerks when compared with two memos writ­ ten expressly for that purpose. One memo, written by Martin J. Flynn at the conclusion of his year of clerking, was titled “Background Information for Law Clerks.” In it Flynn described in particulardetail a clerk’s two prin­ ciple duties: preparing Clark for weekly con­ ferences and assisting him in the preparation of written opinions. The other memo, “Notes to Law Clerks,” set out to accomplish similar ends and included “miscellaneous hot poop for law clerks,” which emphasized the grav­ ity ofchecking every citation and quotation of Clark’s opinions to avoid error. According to these memos, Clark’s clerks were primarily re­ sponsible for writing cert memos (summaries of petitions for certiorari) and assembling materials for Clark’s review of argued cases (Clark’s clerks rarely wrote bench memos). Their role in drafting opinions varied depend­ ing...