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Supreme Court Stenographers and Law Clerks, 1910-1940

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Supreme Court Stenographers and Law Clerks, 1910-1940 JOURNAL OF S UPREME C OURT H ISTORY Fountain Pens and Typewriters: Supreme Court Stenographers and Law Clerks, 1910-1940 CLARE CUSHMAN Until the law clerk function at the U.S. The “clerical” model, practiced by the Supreme Court became standardized in the majority of the Justices between 1886 and 1940s, wide variations in hiring, tenure, 1940, is characterized by the hiring of duties, and remuneration existed. Nonethe- students or graduates from local Washington less, historians have tended to divide the law schools to serve for multiple Terms. staffing culture of the Fuller, White, Taft, and These clerks, often called “private secretar- Hughes Courts neatly into two clerkship ies” or “career stenographers,” have been models. One is the “modern” model, which is largely ignored by historians because they characterized by recruitment of clerks from performed dull clerical tasks for their Justices among the top students at elite national law and did not write memoirs touting their schools such as Harvard, Yale, and Columbia, experiences. Indeed, Justice David J. Brewer with the clerks given substantive legal dismissed the clerk function in 1905 as research duties, rotated after a year or two, “simply a typewriter, a fountain pen, used and then mentored into stellar careers. Horace by the judge to facilitate his work.”2 In 1914, Gray, Oliver Wendell Holmes, Jr., Louis D. a reporter noted that the Supreme Court Brandeis, Harlan Fiske Stone, William H. clerks’ purpose was simply “to relieve their Taft, Benjamin N. Cardozo and Charles superiors of much of the drudgery that is Evans Hughes practiced this model, which involved in conning over the briefs and gradually became the institutional norm. records that are submitted in every case.”3 Many of their clerks were later interviewed However, recent scholarship by Barry or wrote memoirs about their experiences Cushman on the clerks of Willis Van working for their Justices, so early use of the Devanter, James C. McReynolds, George modern model is well documented.1 Sutherland, and Pierce Butler reveals that 40 JOURNAL OF SUPREME COURT HISTORY the pre-1940 clerkship was more varied than subject of scholarly attention?6 (William R. these two models suggest. He shows that each Day is not considered in this article because of the “Four Horsemen” recruited and de- of his unusual practice of hiring his sons, who ployed clerks in ways that cannot easily be lived at home, as his clerks.) An examination categorized as either “modern” or “clerical.”4 of the clerkship practices utilized by these Although Van Devanter and McReynolds eight Justices reveals that they subscribed each recruited a clerk from Harvard Law consistently to the old-fashioned clerical School to serve for a single Term, the majority model. Although lacking in substance and of their clerks were from local D.C. law prestige, this model nonetheless merits schools and had been working as stenographic greater examination. It was the dominant clerks in the government. Van Devanter clerkship model of the Justices from 1886 retained a clerk for as many as nine consecu- through the 1930s, and it even persisted in the tive Terms and McReynolds for seven. Both Stone Court era. Examining this model experimented with having two clerks in provides an important counterweight to the Chambers but then reverted to one. They much better known experiences of the treated their clerks like secretaries, not as legal relatively small number of Justices who research assistants, although they did ask them subscribed to the modern clerkship model to summarize certiorari (cert) petitions. before 1940. Moreover, the stories of these Sutherland recruited his clerks from a Justices’ sixteen clerks reveal the institutional local law school, George Washington Uni- practices of the Supreme Court with respect versity Law School, but, unlike Van Devanter to the hiring, remuneration, promotion, and McReynolds, he assigned them to tenure, and deployment of clerks.7 Finally, perform substantive legal research to support examining the clerkship practices of individ- his opinion-writing. Butler hired a local ual members sheds light on their individual Catholic University law graduate for his approaches to managing their workload. entire sixteen-year tenure on the Court, which at first glance suggests the old-fashioned “ ” career secretary model, but his clerk Clerks’ Origins performed functions that were decidedly modern. When asked about his duties, the Drawn to the Nation’s Capital clerk said he wrote “first drafts of many These eight Justices mainly hired men opinions, expressing the Justice’s views so already serving as clerks in various govern- accurately that the drafts often required few ment agencies. They chose ambitious young changes.”5 Butler almost always employed a men who had been drawn to Washington, second law clerk, often from University of D.C., because the federal government had Minnesota Law School, who served stints openings for clerks to support its burgeoning ranging from one to eight Terms. These clerks staff. Although a few were D.C. natives— performed clerical work and legal research notably John E. Hoover, a sixth-generation and summarized cert petitions. Washingtonian8—most came from nearby What about the clerkship practices of states. Two were born in Canada and other members of the Court who served England. Some came equipped with law alongside the Four Horsemen in the degrees, but most attended law school at night 1910s-1930s, specifically, Edward D. White, and supported themselves in stenographer Horace H. Lurton, Joseph R. Lamar, Joseph jobs by day. Working as a clerk was a way of McKenna, Mahlon Pitney, John H. Clarke, gaining a toehold on the first rung of the legal Edward T. Sanford, and Owen J. Roberts— employment ladder that many hoped would Justices whose clerks have not been the lead to steady jobs as government attorneys. SUPREME COURT CLERKS PRE-1940 41 This pathway was particularly valuable during the Depression era when legal jobs were scarce. James Cecil Hooe, the first of the three clerks Justice Joseph McKenna employed during his twenty-six-year tenure, followed a fairly typical path toward establishing him- self as a clerk in the nation’s capital. Born in Alexandria into an illustrious Virginia fam- ily, Hooe came to Washington to work for his Congressman, Elisha Edward Meredith. At night he studied law at Columbian College (later renamed George Washington Univer- sity), earning his law degree in 1892 and his LL.M the following year.9 Hooe then served as a clerk in the Department of Agriculture in 1895 before becoming private secretary to Phoebe Hearst, wife of Senator George Hearst of California. A philanthropist with a strong interest in education, she was active in founding the National Congress of Mothers (precursor to the Parent-Teacher James Cecil Hooe (above), who came from nearby Association) during the time Hooe worked Alexandria, Virginia, clerked for Joseph McKenna for for her.10 Popular in Washington social twelve terms until Hooe died of tuberculosis in 1910 at age forty. circles, Hooe married Edith Dingley, the daughter of Representative Nelson Dingley of Maine in 1897, and began clerking for One of Chief Justice Edward D. White’s Justice McKenna the following year.11 He clerks learned this lesson the hard way. served McKenna for twelve years. Tragi- Leonard Bloomfield Zeisler, of Chicago, cally, his life was cut short at age forty by was the son of Sigmund Zeisler, who had tuberculosis.12 famously defended two prominent anarchists in the Haymarket cases, and the celebrated Stenographic Skills Required pianist Fanny Bloomfield Zeisler.13 Leonard Shorthand was a prerequisite for being received an LL.B in 1910 from the University hired as a stenographic clerk in a government of Chicago with highest honors,14 and he agency or a law firm. Accordingly, these men spent six years in private practice at his studied stenography and other clerical skills at father’s firm of Zeisler & Friedman in local D.C. trade schools. Many attended Chicago. He moved to Washington, D.C., Business High School or Strayer’s Business in January 1918 to join the Justice Depart- College, both of which opened their doors in ment as an assistant attorney general in the 1904 to accommodate a growing demand for Public Lands Division.15 The Chief Justice (white) clerical workers in the federal govern- hired him as his clerk on August 1, but White ment. Although these men also earned law soon decided he “could not use” Zeisler degrees, being a law school graduate—even because of “his lack of stenographic knowl- from an elite school—did not compensate for a edge.”16 It is unlikely that White had deficit in stenography skills when it came to problems with him other than his inability getting hired by a Supreme Court Justice. to take dictation, as he was welcomed back to 42 JOURNAL OF SUPREME COURT HISTORY the Justice Department and went on to work who are engaged in the service of the for Assistant Attorney General Thomas J. Government.”21 Georgetown finally intro- Spellacy, who was in charge of the seizure duced morning classes in 1921, but the and administration of enemy property in the following year it enrolled only 193 in its United States. Under Spellacy, Zeisler morning class compared with 1,012 students received a salary promotion to $4,000 in its “late afternoon” class.22 because he had “proved himself to be a Some sources say that these early clerks very valuable man” and was “engaged largely did not have legal training,23 but that seems to in brief and opinion writing.”17 Supreme be true for only one of the sixteen clerks in Court clerks were only earning $2,000, so his this study.24 Some were hired by a Supreme failure to please White was neither a financial Court Justice after earning a law degree, but nor career setback.
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