Vol. 31 No. 1 (January 2021) pp. 4-7OF COURTIERS AND PRINCES: STORIES OF LOWER COURT CLERKS AND THEIR JUDGES, by Todd C. Peppers (ed). Charlottesville: University of Virginia Press, 2021. 352pp. Cloth $39.95 ISBN 9780813944593. E-book $39.95 ISBN 9780813944609.
Reviewed by Mark C. Miller, Department of Political Science, Clark University. Email: mmiller@clarku.edu
The study of the role of law clerks is very difficult, in large part because clerks, especially those who worked for Supreme Court justices, usually sign confidentiality agreements which continue in force after the clerkship ends. Overcoming this obstacle, a new wave of systematic research on law clerks began when Todd Peppers (2006) published COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME LAW CLERK at almost exactly the same time as Artemus Ward and David L. Weiden’s (2006) SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT.Then Peppers and Ward (2012) teamed up to produce an edited volume, in which each chapter focused on the relationship of a specific Supreme Court justice and his or her clerks. Peppers and Cushman (2015) followed with another edited volume providing more stories about Supreme Court law clerks and their justices. Now, Peppers (2021) has produced another edited volume of stories about law clerks and their judges, but this time the chapters recite the experiences of law clerks for state supreme court judges, federal trial court judges, and U.S. Courts of Appeals judges. This new volume is a wonderful addition to this growing literature on the work of law clerks and their relationships with the judges who employed them.
Peppers has been involved in almost all of these projects. While studying law clerks is certainly difficult, he has provided some key lessons in each of these books. Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has written the foreword for this new collection of essays about law clerks and their lower court judges. To get a sense of the tenor of all five of these books, and especially this new addition, it is worth quoting Judge Wilkinson about his views on the relationship between clerks and the judges who employ them. As Judge Wilkinson notes:
From the perspective of the bench, clerks are family. If not sons and daughters, then certainly nieces and nephews. The marvelous recollections in this volume show the deep bonding between clerk and judge, the intergenerational communication that is equaled nowhere else in government, the education into the workings of an entirely co-equal branch, the opportunity to vitally contribute to the functioning of our indispensable judicial system, and the chance to become ambassadors for the values of that system long after the clerkship ends. All these are open to every clerk on every court, no matter what the perceived prestige of the judge or tribunal might appear to be (p. vii). [*5]
Among the chapters in this volume are stories about some of the pioneering first female judges on state supreme courts as well as some of the early judges of color on the federal bench.
The first two books by Peppers (2006) and Ward and Weiden (2006) both involved in-depth interviews with former law clerks at the U.S. Supreme Court as well as extensive archival research and analysis of secondary sources. Peppers (2006) conducted personal interviews with 54 former law clerks, including Justice John Paul Stevens, and he names these individuals in an appendix. He received letters or written surveys from over 75 other former clerks, which he also identified by name. He also received off-the-record background information from Justice Scalia, as explained in the book. Ward and Weiden (2006) surveyed over 160 former law clerks and supplemented these data with personal interviews with a subset of them. The authors also extensively used the personal papers of various justices, judicial biographies, and other secondary sources. Both of these works were excellent systematic studies of the role of law clerks at the U.S. Supreme Court.
Starting with the volume edited by Peppers and Ward (2012), and continuing with the volume edited by Peppers and Cushman (2015), the focus of the research changed to a series of case studies, often written by former clerks for the judges for whom they had worked. Some of the chapters in these volumes read more like memoirs whiles others read more like judicial biographies. Most of the stories in these volumes paint a very rosy picture of the justice-clerk relationship, which is not surprising given that almost all clerks develop a special bond with their judge that lasts throughout their careers.
This new volume edited by Peppers is very much in this same vein. This is an innovative collection of case studies that examine the inner workings of the lower appellate court judges’ chambers, including the law clerk selection process and other day-to-day work routines. The volume shows us that judges are real people because the clerks have a close and personal view of how these individuals carry out their jobs on the bench. Some of the chapters are reprints from earlier publications, while others are original to the volume. Some might wonder about relying solely on the recollections of clerks, because as William H. Rehnquist (1957) once colorfully wrote, “Each clerk is in a position to offer only a worm’s-eye view of the Justice-clerk relation” (p. 74). Nevertheless, this new volume is a very interesting read.
The scope of the judges covered in Peppers’s latest volume is impressive. Of the six state supreme court judges profiled, four are women, most the first female judge on their respective state supreme courts. For example, Judge Judith S. Kaye was both the first female associate justice on the New York Courts of Appeals (the state’s highest court) and its first female chief justice. Judge Juanita Kidd Stout was the first African American woman to sit on the Supreme Court of Pennsylvania. The two male judges in this section are Judge Roger J. Traynor of the California Supreme Court and Judge Hans Linde of the Oregon Supreme Court, both fairly well-known state judges. The six U.S. District Court judges included in this section are probably less famous. For example, Judge Burnita Shelton Matthews was the first woman appointed to the federal trial bench, by President Truman. [*6] Judge Edward Weinfeld was another Truman appointee. One of the chapter authors is certainly more famous than the federal judge for whom she clerked: the late Justice Ruth Bader Ginsburg. Ginsburg wrote about her experiences clerking for U.S. District Judge Edmund L. Palmieri. The book ends with chapters covering eight judges who sat on various circuits of the U.S. Courts of Appeals, including Judge Damon Keith and Judge Leon Higginbotham, Jr., two of the first Black judges to be appointed to the U.S. Circuit Courts. Other judges profiled in this section of the book include Judge Elbert Tuttle, Judge John Minor Wisdom, and Judge Jane Richards Roth.
Taken as a whole, one of the most important contributions of the new volume is the fact that the reader gets exposure to many lesser-known judges who served on appellate courts below the U.S. Supreme Court level. Too often the work of these judges is overlooked, either because their courts are not seen as important as the U.S. Supreme Court or perhaps because there are so many lower court judges that it is difficult to study each judge individually. These courts, and their judges, make many extremely important legal decisions in cases that may or may not be heard by the U.S. Supreme Court. We need to learn more about these judges, and viewing them through their eyes of their law clerks provides insights that might otherwise be unavailable. These judges are quite human with their individual approaches to the law, and their clerks are very good at helping us understand them both individially and collectively. Peppers has brought together the stories of these individuals and their clerks in a way that sheds light on the importance of these judges, but also on the importance of the courts on which they sit.
Peppers states in the preface for the book that most of the chapters describe happy relationships between the clerks and their judges because former clerks for judges rumored to be difficult bosses usually declined to write chapters for the volume. Peppers wonders about whether they were worried about breaching confidentiality or they feared retribution. Nevertheless, this volume can teach us a lot about the role of law clerks who worked in a variety of lower court judicial chambers. It also provides a great deal of information about the individual judges profiled in the volume. These chapters remind us that judges are real people with their individual approaches and foibles. It is an excellent addition to the literature in this area.
REFERENCES:
Peppers, Todd C. 2006. COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK. Stanford, CA: Stanford University Press.
Peppers, Todd C. and Artemus Ward, eds. 2012. IN CHAMBERS: STORIES OF SUPREME COURT LAW CLERKS AND THEIR JUSTICES. Charlottesville: University of Virginia Press.
Peppers, Todd C. and Clare Cushman. 2015. OF COURTIERS AND KINGS: MORE STORIES OF SUPREME COURT LAW CLERKS AND THEIR JUSTICES. Charlottesville: University of Virginia Press. [*7]
Rehnquist, William H. 1957. Who Writes Decisions of the Supreme Court? U.S. NEWS AND WORLD REPORT. December 13, 1957, 74. Ward, Artemus and David L. Weiden. 2006. SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT. New York: New York University Press.
© Copyright 2021 by author, Mark C. Miller
