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John Roberts.
Reuters/Jim Young
The chief justice of the US Supreme Court knows we can’t go it alone.
BEHIND THE SCENES

This Supreme Court tribute to law clerks is a reminder of the invisible workers behind every great endeavor

By Ephrat Livni

Like all powerful people, US Supreme Court justices get a lot of help. The contribution of their law clerks—whose work is invisible to the world—is critical to getting the job done, as evidenced by the tribute chief justice John Roberts issued on Dec.31.

Law clerks help judges with legal research, drafting decisions, and administrative matters. Many go on to become judges themselves. Roberts, for example, clerked for high court justice William Rehnquist, Elena Kagan clerked for Thurgood Marshall, and Neil Gorsuch clerked for Byron White and Anthony Kennedy, going on to become the only justice to ever serve on the high court alongside his former boss. At the Supreme Court, justices usually have three to four clerks, although the number of assistants per jurist varies in state and federal courts throughout the US.

Roberts began his 2018 year-end report on the federal judiciary (pdf), with a story about the eminent early-20th century jurist Louis Brandeis and his law clerk Henry Friendly. It’s an instructive tale about the important work of people behind the scenes whose unrecognized contributions help leaders to be great and to avoid mistakes.

In 1928, when the high court was considering Olmstead v. United States, a Fourth Amendment case about convictions based on wiretapping telephones without a warrant, Friendly was instrumental in setting Brandeis straight. The justice wrote a dissent about new technology and government intrusion, noting that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping.” He wanted to use television as another example of a new tool the state might use to conduct intrusive searches and “peer into the recesses of the home.”

Friendly objected, telling his boss, “Mr. Justice, it doesn’t work that way! You can’t just beam a television set out of somebody’s home and see what they’re doing.” When Brandeis insisted, Friendly produced scientific articles explaining how TV really works. The justice ultimately eliminated the misguided example from his opinion.  This correction ensured Brandeis didn’t look like a fool, and that his underlying point—that electronic surveillance was a governmental intrusion that could count as a search—wasn’t undermined by the justice’s misunderstanding. In 1967, the Brandeis dissent in Olmstead informed a Supreme Court holding in Katz v. United States finding that electronic surveillance can indeed constitute a search and so requires a warrant.

“As the exchange between Brandeis and Friendly illustrates, judges benefit from the assistance of their law clerks, who bring energy, new learning, and fresh perspectives into their chambers,” Roberts explains. At the same time, clerks working with esteemed jurists learn legal reasoning, how to consider cases and the consequences of decisions, how to develop a vision that extends into the future. Friendly’s work with Brandeis helped to later make him a distinguished federal judge. Roberts writes:

Each day, in courts across the country, judges and law clerks work together in a collaborative spirit to advance the cause of justice. Circuit judges, district judges, magistrate judges, and bankruptcy judges, like many state colleagues, employ law clerks to help perform their public work efficiently and optimally. The judge serves as a mentor, teacher, and supervisor; the clerk provides a wide range of assistance, such as performing legal research, drafting memoranda, and tracking action and needs for attention on busy dockets.

This collaboration benefits not only judges and clerks, but the litigants that the courts serve. Roberts’ recognition of this important partnership is a timely reminder at the start of a new year to all—bosses, managers and workers—that doing great things is a team effort and that everyone deserves to be recognized, perhaps especially the many people whose work is effective but unnoticed.