Rookie on the Bench: The Role of the Junior Justice CLARE CUSHMAN When Samuel Alito took his seat on January 31, 2006, Stephen G. Breyer finally moved up a rung in seniority, ending the longest reign as a junior Justice in modern Supreme Court history. Breyer served as the rookie Justice for eleven years and 181 days, just twenty-nine days short of breaking the record achieved by Joseph Story in 1823. It was not until the appointment of Smith Thompson to replace Brockholst Livingston that the Marshall Court accommodated a new Justice, altering the cosy boarding-house living arrangement that had existed for nearly twelve years (see Table 1). Courtwatchers speculated that Breyer had Breyer shares many other traits with Story. been secretly hoping Alito’s confirmation Both were Harvard Law professors appointed hearings would draw out as long as possi- to the same seat, the “scholar’sseat” (so named ble so he could overtake Story’s record. Yet because it was also held by legal educators others thought he was frustrated at being the Horace Gray, Oliver Wendell Holmes, Jr., Ben- perpetual rookie and could not wait to move jamin Cardozo, and Felix Frankfurter in suc- up the ladder of seniority.1 But Breyer dis- cession). Far from any rivalry, Breyer instead misses any notion that he felt “stuck” as the feels kinship with Story. He is a great admirer junior Justice for all those years. Sure, he of his predecessor, and cites Story’s advice to would have enjoyed breaking Story’srecord: “I John Marshall in the Cherokee Cases, his opin- missed by 29 days becoming immortal as the ion in the Amistad case, his expertise in ad- answer to a trivia question! It’s amusing, it’s miralty law, and his extrajudicial writings on not serious ...couldn’t matter less.”2 But, he the history of the constitutional convention and says, “the truth of the matter is it is not enor- early Supreme Court cases as proof that he was mously significant in the life of a person on a “great justice.”3 Breyer is happy to let Story the Court whether you are junior or next to ju- round out his considerable accomplishments nior ...I didn’t think of myself particularly as by retaining the distinction of holding the title junior.” of longest-serving junior Justice. ROOKIE ON THE BENCH 283 TABLE 1 Longest-Serving Junior Justices Name Dates as Junior Justice∗ Time Served Days Joseph Story February 3, 1812 to September 1, 1823 11 years, 6 months, 29 days 4,228 Stephen G. Breyer August 3, 1994 to January 31, 2006 11 years, 5 months, 28 days 4,199 Stephen J. Field May 20, 1863 to March 14, 1870 6 years, 9 months, 25 days Samuel Blatchford April 3, 1882 to January 18, 1888 5 years, 9 months, 15 days John Paul Stevens December 19, 1975 to September 25, 1981 5 years, 9 months, 6 days ∗Defined as the period between when one Associate Justice took the judicial oath and when the next Associate Justice took the judicial oath. The exact date of Story’s judicial oath is not known. Source: Office of the Curator, Supreme Court of the United States. Extreme Left and Last in Line as a group, the Justices line up by seniority. For Most Supreme Court procedures are guided by example, the junior Justice is last in line in pay- the longstanding tradition of seniority that is ing respects at funerals (although at Chief Jus- the organizing principle of the entire judiciary. tice William H. Rehnquist’s funeral Breyer and The junior Justice, the lowest in seniority, plays a grieving Ginsburg moved in lockstep as he a unique role in all the rituals that make the gently helped her down the marble steps). The Court work smoothly as an institution. junior Justice also parades last in line into the Most visible to the public, in the Court- President’s annual State of the Union address room the Chief Justice occupies the center and at presidential inaugurations.6 “There is an chair with the senior Associate Justice to the order of precedence for anything,” says Breyer, immediate right and the second most senior but again, he downplays its significance be- Associate to the immediate left. This alternat- yond mere ritual. “If you are walking into the ing pattern continues down the line of senior- State of the Union or doing some other thing ity, with the junior Justice seated at far left. of an official nature I will be at the end of the When asked if there were disadvantages to queue ...That’s fine.”7 “playing left field,” Justice Breyer reflected Inside the Supreme Court building, office that he prefers the left side to his new position space has traditionally been parceled out ac- on the extreme right because “the lighting is cording to seniority. Before the 1970s, only ...slightly more cheerful.” More importantly, six Justices’ Chambers lay inside the “golden on both extremes at the Bench there is “an gates”—the ornate and heavy bronze doors extra shelf to put your briefs on.” Breyer an- that divide the public from the working are- ticipates it “will be slightly less comfortable” nas. The three most junior Justices had to con- to move toward the center chair and lose this tent themselves with offices in the corridor accoutrement.4 After hearing oral argument, just outside. William O. Douglas broke with the Justices file out in order of seniority. On this protocol when he insisted on keeping the his first day on the high Bench, junior Justice office assigned to him when he came on the Samuel Alito reportedly committed a minor Court in 1939, allowing twelve subsequent ju- rookie faux pas by bounding out of the Court- nior Justices to claim suites inside the gates. room before Justice Ruth Bader Ginsburg, his It was not until 1962 that Douglas decided to more senior colleague.5 move into Felix Frankfurter’s former Cham- Another spatial demonstration of senior- bers on the other side. The whole arrangement ity is the official group Court photograph. The changed in the 1970s when the first floor was junior Justice appears at extreme right: He or reconfigured to accommodate all the Justices.8 she stands in the second row, while the more Invisible to the public, in the oak-paneled senior Justices are seated in the first row. At of- room where the Justices’ biweekly secret Con- ficial functions where the Court is represented ferences take place, seniority again dictates 284 JOURNAL OF SUPREME COURT HISTORY Justice Breyer served as junior Justice for eleven years and 181 days, the longest stretch by far in modern history. Only Joseph Story served longer as junior—and only by 29 days. placement. The Chief Justice sits at one end fore I wasn’t blocked as much by the carts with of a long mahogany table, with the senior As- the briefs, and it’s a little less comfortable sit- sociate at the other end. The three next most ting in the middle of the table. As junior there senior Justices sit on one side and the four most is plenty of room. The only difficulty I would junior on the other. Chief Justice Rehnquist re- say would be if you were 4, 7, or 8 ...because vealed that this arrangement translated into a there you are in the middle with the carts in hierarchy of elbow room, with three different back of you and two people on either side.”10 levels ranging from “excellent” (Chief Justice and Senior Associate Justice) through “good” Doorkeeping (Justices 3, 4, and 5), to “fair to middling” (Jus- tices 6, 7, 8, 9).9 But Justice Breyer disagrees The junior Justice’s role is more than a ques- with this assessment.: “I preferred being junior tion of knowing where to stand or sit—a matter ...because you were at the corner and there- of placement in space. There are also some ROOKIE ON THE BENCH 285 The Bench, seen from the perspective of the junior Justice. Breyer liked sitting on the far left because the lighting was better and there was an extra shelf for his briefs. specific duties required. To maintain secrecy According to Breyer, the job is nei- and prevent leaks, no one except the nine Jus- ther onerous nor humiliating. The door gets tices may enter the Conference room when the knocked on “once in Conference, maybe twice Justices are convened. Accordingly, someone in three Conferences. Not very often. It’s usu- must be the link to the outside world. That ally somebody has forgotten some document responsibility falls to the junior Justice, who that they want, and so their law clerk comes sits near the door and answers it if there is a down and gives it to the staff person who is knock or delivers outgoing messages to an at- outside the door, and he knocks on the door tendant stationed outside the door. Much has and gives it to me and I open the door and he been made about the doorkeeping function; says ‘This is for Justice Ginsburg or Justice The notion that a powerful Supreme Court Jus- Thomas’ ...and I give them the document.”13 tice routinely performs a menial task clearly A few years ago, Breyer answered the door strikes a chord. Tom C. Clark, who was a ju- and found himself retrieving not a crucial le- nior Justice in the 1950s, once wryly referred to gal document but ...a fresh cup of Starbucks himself as “the highest-paid doorkeeper in the coffee.