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«The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts BRAD SNYDER* During his Supreme Court ...»

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The Judicial Genealogy (and Mythology) of

John Roberts: Clerkships from Gray to Brandeis

to Friendly to Roberts

BRAD SNYDER*

During his Supreme Court nomination hearings, John Roberts idealized

and mythologized the first judge he clerked for, Second Circuit Judge Henry

Friendly, as the sophisticated judge-as-umpire. Thus far on the Court,

Roberts has found it difficult to live up to his Friendly ideal, particularly in

several high-profile cases. This Article addresses the influence of Friendly on Roberts and judges on law clerks by examining the roots of Roberts’s distinguished yet unrecognized lineage of former clerks: Louis Brandeis’s clerkship with Horace Gray, Friendly’s clerkship with Brandeis, and Roberts’s clerkships with Friendly and Rehnquist. Labeling this lineage a judicial genealogy, this Article reorients clerkship scholarship away from clerks’ influences on judges to judges’ influences on clerks. It also shows how Brandeis, Friendly, and Roberts were influenced by their clerkship experiences and how they idealized their judges. By laying the clerkship experiences and career paths of Brandeis, Friendly, and Roberts side-by- side in detailed primary source accounts, this Article argues that judicial influence on clerks is more professional than ideological and that the idealization of judges and emergence of clerkships as must-have credentials contribute to a culture of judicial supremacy.

* Assistant Professor, University of Wisconsin Law School. Thanks to Eleanor Brown, Dan Ernst, David Fontana, Abbe Gluck, Dirk Hartog, Dan Hamilton, Alison LaCroix, Brent McIntosh, Jeff Rosen, Mitra Sharafi, Dan Sharfstein, Frank Tuerkheimer, Mel Urofsky, Bill Whitford, John Witt, and the participants at the American Bar Foundation/Illinois Legal History Seminar, University of Wisconsin Law School junior faculty workshop, and George Washington University Law School faculty workshop for their comments; to Philip Bobbitt, Judge Michael Boudin, Charles Davidow, Peter Edelman, Andrew Kaufman, Reinier Kraakman, Larry Kramer, Richard Lazarus, Judge Pierre Leval, and Paul Mogin for their input and for agreeing to be interviewed; to Joan Goodman for providing me with her father’s oral history transcripts; to Jill Bramwell and Tim Lundquist for their research assistance; to Jessica H. Kim and her colleagues at the Ohio State Law Journal; and to the following librarians and archivists: Lilly Li, Cheryl O’Connor, and Bonnie Shucha at the University of Wisconsin Law Library; Lia Apodaca, Fred Augustyn, Jennifer Brathovde, Jeff Flannery, Patrick Kerwin, Bruce Kirby, Joe Jackson, and Daun van Ee at the Library of Congress Manuscript Division; Dave Kelly at the Library of Congress; Ed Moloy, Margaret Peachy, Lesley Schoenfeld, and David Warrington at the Harvard Law School Special Collections Library; and Barbara Krieger

–  –  –

I. INTRODUCTION

II. THE GRAY CLERKSHIP: 1875–1902

A. Brandeis’s Background

B. Brandeis’s Clerkship Experience

III. THE BRANDEIS CLERKSHIP: 1916–1939

A. The Courtship of Henry Friendly

1. Background

2. Harvard Law School

3. The Battle with Buckner

B. Friendly’s Clerkship Experience

IV. BRANDEIS’S INFLUENCE ON FRIENDLY

A. Friendly’s Career Choices

1. Root, Clark

2. Passing on Harvard

3. No to Public Service

4. Court-Packing

5. Cleary, Gottlieb, and Pan Am

6. Calling on the Second Circuit

B. Jurisprudence

C. Clerkship Model

V. THE FRIENDLY CLERKSHIP, 1959–1986

A. Roberts’s Background

B. Roberts’s Clerkship Experience

C. Roberts’s Career Path

1. Rehnquist Clerkship

2. Reagan Justice Department

3. Hogan & Hartson

4. Principal Deputy Solicitor General

5. D.C. Circuit

VI. FRIENDLY MYTHOLOGY REVISITED

A. Friendly as Umpire

B. Friendly as Unattainable Ideal

C. Friendly v. Rehnquist

VII. CONCLUSION

APPENDIX 1

2010] JUDICIAL GENEALOGY 1151

I. INTRODUCTION

In 2005, John G. Roberts nearly made American judicial history as the first former law clerk to join his Justice on the Supreme Court. Instead, Roberts helped carry Chief Justice William Rehnquist’s “plain unvarnished pine” coffin up the Court’s marble steps1 and succeeded Rehnquist as Chief Justice. Conventional wisdom pegged Roberts as a Rehnquist disciple.2 Most commentators, however, overlooked Roberts’s clerkship with one of the Nation’s most revered federal appellate judges––Second Circuit Judge Henry J. Friendly.3 To Bush Administration officials, friends, and law clerks, Roberts identified Friendly, not Rehnquist, as his judicial role model.4 During his Supreme Court confirmation hearings, Roberts described Friendly as the exemplar of judicial modesty.5 Roberts admired that Friendly was not results-oriented and that the media could not decide whether Friendly was liberal or conservative.6 Roberts admired the thoroughness of Friendly’s opinions and that, despite being an “absolute genius,” Friendly possessed the “essential humility” to defer to elected officials.7 Roberts regarded Friendly as the ideal judge. For the American public, Roberts explained his judicial philosophy through his much maligned judgesJohn G. Roberts, Jr., Tribute to William H. Rehnquist, 31 J. SUP. CT. HIST. 15, 15 (2006); see also JEFFREY TOOBIN, THE NINE 3 (2007).





2 Tom Brune & Monte R. Young, His Conservative Roots Run Deep, NEWSDAY, July 24, 2005, at A7; Jan Crawford Greenburg, Philosophy Likely to Evoke Rehnquist, CHI. TRIB., Sept. 6, 2005, at 1; Adam Liptak & Todd S. Purdum, As Clerk for Rehnquist, Nominee Stood Out for Conservative Rigor, N.Y. TIMES, July 31, 2005, at 1; Tony Mauro, Editorial, Ironies Abound as Rehnquist Leaves Us, USA TODAY, Sept. 7, 2005, at 25A.

3 But see Todd S. Purdum et al., Court Nominee’s Life Is Rooted in Faith and Respect for Law, N.Y. TIMES, July 21, 2005, at 1 (comparing Roberts to Friendly because “Roberts is an erudite, Harvard-trained, Republican corporate-lawyer-turned-judge, with a punctilious, pragmatic view of the law”); Jeffrey Rosen, Op-Ed., In Search of John Roberts, N.Y. TIMES, July 21, 2005, at A21 (encouraging Senators to ask questions about Friendly during Roberts’s confirmation hearings).

4 Author Interviews; Michael Grunwald & Amy Goldstein, Few Have Felt Beat of Roberts’s Political Heart, WASH. POST, July 24, 2005, at A1 (quoting Roberts’s friend Richard Lazarus); Neil Lewis, An Ultimate Capital Insider, N.Y. TIMES, July 20, 2005, at A14 (also quoting Richard Lazarus).

5 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong.

202 (2005) [hereinafter Roberts Supreme Court Hearings] (statement of John Roberts).

6 Id.

7 Id.

1152 OHIO STATE LAW JOURNAL [Vol. 71:6 as-baseball umpires metaphor.8 For members of the Senate Judiciary Committee, Roberts offered them a more sophisticated judicial umpire in Henry Friendly.

During Roberts’s first five years as Chief Justice, Friendly has been less a role model than an unattainable ideal. Roberts and Friendly served on different courts and judged in different eras. Nor is it fair to judge Roberts on a handful of high-profile cases or five years into his Supreme Court tenure.

Thus far, Roberts has not attained Friendly’s reputation as a sophisticated judicial umpire. It remains an elusive goal.

Law clerks have been mythologizing their judges for generations.

Indeed, Roberts is part of a distinguished and unrecognized lineage of former law clerks who have idealized their judges beginning with Louis Brandeis’s clerkship with Horace Gray from 1877 to 1879, continuing with Henry Friendly’s clerkship with Brandeis from 1927 to 1928, and culminating with Roberts’s clerkships with Friendly and Rehnquist from 1978 to 1980.9 This Article refers to Roberts’s clerkship lineage as a judicial genealogy because clerks often think of themselves as extended families of Brandeis clerks, Friendly clerks, or Rehnquist clerks. With more federal judges beginning their legal careers as clerks,10 these extended clerkship families span multiple generations. If history is any indication, more than one-third of Obama’s judicial nominees will be former judicial clerks.11 Obama’s second Supreme Court nominee, Elena Kagan, clerked for D.C. Circuit Judge Abner Mikva and Justice Thurgood Marshall. At her Supreme Court confirmation hearings, Republican Senators criticized Mikva and Marshall as “well-known activists”12 and charged that Kagan’s clerkship memos to Marshall indicate 8 See, e.g., Aaron Zelinsky, The Justice as Commissioner: Benching the JudgeUmpire Analogy, 119 YALE L.J. POCKET PART 113, 116–17 (2010), http://yalelawjournal.org/2010/03/03/zelinsky.html; cf. BRUCE WEBER, AS THEY SEE ’EM 172 (2009) (quoting umpire describing calling of balls and strikes as “like the Constitution” and “[t]he strike zone is a living, breathing document” and another umpire about the rulebook’s description of the strike zone: “Have you ever read Roe v. Wade?

What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”).

9 Roberts could be considered part of another judicial genealogy. Rehnquist clerked for Justice Robert Jackson, one of Roberts’s favorite justices. Rehnquist, however, was not one of Jackson’s favorite clerks and misread Jackson’s views, particularly when it came to Brown v. Board of Education. See Brad Snyder, What Would Justice Holmes Do (WWJHD)?: Rehnquist’s Plessy Memo, Majoritarianism, and Parents Involved, 69 OHIO ST. L.J. 873, 882–89 (2009).

10 See infra, app. 1.

11 Id.

12 See Confirmation Hearing on the Nomination of Elena Kagan to be Associate Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong.

(2010) [hereinafter Kagan Supreme Court Hearings] (statement of Sen. Jeff Sessions).

2010] JUDICIAL GENEALOGY 1153 that she was results-oriented “based largely on her own liberal policy preferences.”13 Kagan responded that “the role of the clerks was pretty much to channel Justice Marshall” and that “if you confirm me to this position, you will get Justice Kagan. You won’t get Justice Marshall.”14 Through the concept of judicial genealogy, this Article hopes to reorient clerkship scholarship. Scholars have focused on the influence of clerks on their judges.15 Backlash over Brown v. Board Education (and other Warren Court decisions)16 and Bush v. Gore17 and clerk-centric books about the Court18 have increased anxiety about clerk influence.

The obsession with law clerk influence is greater than ever. A recent article analyzed the “separate career tracks” of liberal and conservative 13 Id. (statement of Sen. Jon Kyl).

14 Id. (statement of Elena Kagan). For similar comments about Marshall, see generally Confirmation Hearing on the Nominations of Thomas Perrelli Nominee to be Associate Attorney General of the United States and Elena Kagan Nominee to be Solicitor General of the United States, Hearing Before the S. Comm. on the Judiciary, 111th Cong. 97–99 (2009) [hereinafter Kagan S.G. Hearings]; Elena Kagan, For Justice Marshall, 71 TEX. L. REV. 1125 (1992).

15 See generally BRADLEY J. BEST, LAW CLERKS, SUPPORT PERSONNEL, AND THE DECLINE OF CONSENSUAL NORMS ON THE UNITED STATES SUPREME COURT, 1935–1995 (2002); TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK (2006); ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS’ APPRENTICES (2006); Helen J. Knowles, Clerkish Control of Recent Supreme Court Opinions? A Case Study of Justice Kennedy’s Opinion in Gonzales v.

Carhart, 10 GEO. J. GENDER & L. 63 (2009); Todd C. Peppers et al., Inside Judicial Chambers: How Federal District Judges Select and Use Their Law Clerks, 71 ALB. L.

REV. 623 (2008); Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DEPAUL L. REV. 51 (2008); David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 TEX. L. REV. 947 (2007); Rick A. Swanson & Steven Wasby, Good Stewards: Law Clerk Influence in State High Courts, 29 JUST. SYS. J. 24 (2008); Royce De Rohan Barondes, Want Your Opinions Reversed? Hire a Yale Clerk (and Don’t Require the Bar) (Univ. of Missouri-Columbia Sch. of Law Legal Studies Research Grp., Paper No. 2008-8), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1116 343.

16 See 104 CONG. REC. 8107–08 (1957) (remarks of Sen. John Stennis decrying clerks’ “ever-increasing importance and influence”); William H. Rehnquist, Who Writes the Decisions of the Supreme Court, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74–75 (contending many “liberal” clerks showed “extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, [and] great sympathy toward any government regulation of business,” and those biases crept into cert memos).

17 See David Margolick et al., The Path to Florida, VANITY FAIR, Oct. 2004, at 320.

18 See generally EDWARD LAZARUS, CLOSED CHAMBERS (1998); J. HARVIE WILKINSON, III, SERVING JUSTICE (1974); BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN (1979).

1154 OHIO STATE LAW JOURNAL [Vol. 71:6 Supreme Court clerks and concluded that clerks are contributing to the Court’s ideological polarization.19 The authors of that article, along with other scholars, have suggested rotating the clerks among the Justices (or reassigning them to the Court as a whole) to reduce this ideological polarization.20 The ideological polarization thesis, which has attracted recent national media attention,21 implies that Supreme Court clerks possess too much influence on their Justices.



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