Ian Samuel co-hosts the popular Supreme Court podcast “First Mondays.” He clerked for Ninth Circuit Judge Alex Kozinski from 2008-2009 and Supreme Court Justice Antonin Scalia from 2012-2013. He’s currently a Climenko Fellow and lecturer at Harvard Law School. Although he’s had an extremely interesting career, our conversation mainly focused on his SCOTUS clerkship. I learned how the cert pool works, why Supreme Court librarians are so helpful, how bench memos are organized, and more.
How intensely did you prepare for your clerkship interview with Justice Scalia?
Very intensely. We’re actually recording this, as I mentioned to you, on the seven year anniversary of when I did that interview. I had about two weeks notice that the Justice wanted to bring me in, and I did very little else in those two weeks. I read a lot of the Justice’s opinions, I tried to read everything about him, and I talked to everybody that would talk to me who had been through the interview. It just sort of became my life for those two weeks. I thought, well, I’m never going to get a chance like this again, so let’s not blow it.
I’ve heard that for the next part of the interview, you speak with some of the Justice’s current clerks. What kind of things did they ask you about?
That was the most ‘intense’ part of the interview. You talk with the Justice for half an hour or so, and it’s semi-substantive. You talk about some substantive stuff, but he’s also just trying to get to know you as a person. At the end, he said, “Alright. Well I’ve gotta send you up to the current law clerks now.” He warned me that they could be pretty rough, but that, “Not to worry, I don’t listen to them all the time.” A statement I learned later was extremely true in many contexts.
By contrast, they talked to me for maybe two hours. It was all four of them and me in a room together in one of their law clerk offices. And that was a wide-ranging discussion about my thoughts and views, and what I thought about the Justice’s thoughts and views about all sorts of subjects across American constitutional law, without sort of limitation. “I don’t know” was not an available answer, which is why I’m glad I prepared very intensely for it. It’s deliberately adversarial — to see that you’re very prepared, and also that you have the intellectual disposition required to really go and do battle and talk about these kinds of things. So we talked for a couple of hours, and then at the end, they offered to show me around the building for a couple of minutes. And they did. Then, I left and didn’t hear from chambers for like two and a half months. It was a nerve-wracking time period, but it was a lot of fun.
And we did, of course, the same thing to the interviewees our term. We really put them through the ringer because, you know, it’s tradition.
Was this grilling comparable to your clerkship interview with Judge Kozinski?
You know, I would say that it was more intense. The Kozinski interview was also quite substantive; the thing is, it was just one-on-one. So I would talk to each of the individual law clerks. For example, Scott Keller, who is now the Solicitor General of Texas, was working for Kozinski when I applied, and he interviewed me. He and I had a very in-depth, very substantive kind of conversation that did involve a fair amount of grilling. But it was just me and him sitting in a room. And also, I did the Kozinski interview on literally one day’s notice. They called me and wanted to talk to me the next day, so everybody understood that my level of preparation was not going to be the same as it was for something you have a couple of weeks.
One day’s notice? That’s insane.
When I was in law school, they had a hiring plan that all the judges stuck to, except for some sort of outlier exceptions who didn’t want to play by the schedule. And Kozinski was one of those. So he called me — and I was in law school in New York — and said, “We’d really like to see you for an interview.” He asked when I was available, and I said, “I’m pretty much available as soon as you’d like to see me.” “Well how about tomorrow?” I said, “Alright, I guess I’d better go home and buy a plane ticket.” And that’s what I did. But ultimately it was good, because he got me out there and got things moving as fast as possible. It was a very intense thirty-six hours.
One of the unique things I read about Kozinski is that he didn’t participate in the bench pool. Was it a difficult adjustment, then, to work with the cert pool at the Supreme Court?
Both of those things are true, but there are some slight differences. As far as I’m aware, the Ninth Circuit is unique in that before argument, three judges on a panel will basically pool the work of preparing for argument with each other, because the Ninth Circuit’s caseload is very big proportional to the number of judges. This can help lighten the load by having one law clerk write a bench memo that’s distributed to all three chambers. Kozinski did not like that, for various reasons. Number one, he thought that the litigant was entitled to the fully considered, separate view of all three different judges. And it promoted a kind of groupthink that decreased the whole function of having a panel system in the first place. Number two, he didn’t want to have to rely on the work product of law clerks that he had no hand in hiring, that he didn’t know if he could trust, he didn’t know how they thought, and he just didn’t have any relationship with. His thought was, “I’ve chosen the people who work for me, and they know what my expectations are. They know how I want to think about cases, they know what’s helpful, and I want them to do good things.”
Now, at the Supreme Court level, Justice Scalia did participate in the cert pool, which is conceptually similar. I’ve actually never thought about the fact that the two practices are comparable in the way that you suggest. That was a little unusual. Working with the cert pool was the first time I’d ever had to think about the fact that other Justices on the court were, at least for cert pool purposes, my boss.
So for example, early on in the year, Justice Kagan, who had been my boss at the SG’s office when she was ‘General Kagan,’ semi-gently chided me for one of the pool memos that I had written. It wasn’t a bad memo — it was sort of idiosyncratic in certain ways. She basically said, “I would appreciate if you stopped doing that.” You better believe that I did. It was weird, because of course I wasn’t working for her. But I was working for her because she was in the cert pool and you kind of have to work for everybody.
That’s interesting. I heard something similar when I was researching the cert pool, but it said the Chief Justice was mainly responsible for “maintaining” it and chiding clerks if they stepped out of line.
If you didn’t turn the pool memos in on time, you had to personally walk around every chambers with copies of your pool memos, hand-delivering the ones that were late because the Chief’s chambers wouldn’t handle the distribution of late pool memos. There was also an email that was sent out to everybody identifying people who were late. It’s extremely unpleasant. I’m proud to say that it never happened to me. I never turned any in late, in part because I didn’t want to be on the email list.
How much of your clerkship did you spend working on the cert pool?
I would say it’s different at different times of year. At the beginning of the year, there’s almost nothing else to do. So you start in July, the Court’s first oral arguments aren’t until October, and in many cases, your boss may not even be in town. It’s close to 100%.
As the year goes on, then you have to start helping your Justice get ready for arguments. That decreases the proportion of your time you can spend doing it. But still, it’s taking up a lot. And you’re getting faster at doing the cert pool work as you get more used to it, because you start to be able to handle large numbers of pretty obviously not cert-worthy petitions (but that do still need a close look) more quickly.
As you get close to the end of the year, when you’re in the middle of June, you’re not preparing for arguments any more. What you are trying to do is make sure the opinions are all getting out the door by these very hard deadlines that the Chief Justice sets. Almost all of your time is really going into making sure whatever your chambers is responsible for is getting out the door, making sure you’re reading everything that’s coming in the door, that your Justice has indicated what they may want to join or not. The cert pool is a comparatively smaller part of your work.
I’d say approximately 30% of the time wouldn’t be a crazy estimate. Maybe a third of it is cert work, a third of it is getting ready for arguments, going to see the arguments, and helping the Justice figure out what they think the right answer in this case is, and a third of the time is helping with drafting things and stuff like that.
About how long were the cert memos you had to write, and how would you organize them?
It can vary. At the short end, for a petition that is very plainly not cert-worthy and you can explain it very quickly, I wrote many memos that year that were just a single page. On the longer end, I wrote one that was at least 25 or 30 pages long that involved a quite complex question. It depends very much on the cases. There’s no one looking over your shoulder and saying “this is really a three-pager” and “this is really a fifteen-pager.” So you have to take it upon yourself to do it correctly the first time, because there is no revision process. And then what was the second part of your question?
What your writing organization would look like.
There are examples of these cert memos that have come out of the Justices’ papers. Even though they’re a couple of decades old, the orientation hasn’t really changed. The basic way that they’re organized is first, there’s a caption and some stuff like that. But substantively, you start with a brief summary — an introduction, if you will — that conveys in a maximum of about a page and a half (which may be the entire memo) everything you’re about to say. Then, you go through what has happened in the case, starting with the factual background of the case, and what the district court did, and what the court of appeals did, and then what the petition says, what the brief in opposition says, what the reply says, and you summarize the arguments of what cert stage amicii are. All of this is done, interestingly, in the first-person from the perspective of whatever you’re writing about. When you are summarizing the petition, you write as if you are the petitioner, and when you’re summarizing the brief in opposition, you write as if you are the respondent.
Then, after those summary sections, there is a discussion section. You, the law clerk, write and formulate your recommendation and what you think should be done with the case — whether it should be granted or denied. Some law clerks would use the distinction “close deny,” but I don’t really know what that means. [laughs] I mean, what is the recommendation there? Three justices should vote for it instead of four? I don’t know. So I didn’t do that, because that’s not an available vote at conference.
And that’s it. That’s the basic organization, and it is really fun to read the old ones. They’re really not all that different. The format hasn’t changed much since Justice Powell’s days when they were invented.
Were you worried about recommending petitions that would later be dismissed as improvidently granted?
Absolutely. That’s the last thing you want to have happen to you. I was always, you know, quite obsessed with trying to ferret out any lurking vehicle problems. And in cases where they existed, but that I nonetheless thought that the case should be granted, I tried to be very clear in the memo: here are the potential problems, and here’s why I think that they’re not necessarily fatal. But you should be aware of all the facts that might potentially cause this to be an issue down the line, so that you can make up your own minds and use your own judgement about whether you’re willing to run this risk. If I had done that, then I had given the justices the information that they needed and given them my recommendation. I had done my job.
But I’m pleased to say that no case in which I recommended that the Court grant review was later dismissed as improvidently granted. So I will retire undefeated on that metric, and I’m very happy for it.
How did your writing change and improve over the course of the term? I imagine you must have gotten a lot better, considering how much time you spent writing cert memos and drafting opinions.
I think you do get a lot better because it forces you to write a lot. It forces you to write under quite severe time pressures. But also, it has to be good, and it has to be right. Because the thing that’s interesting about pool memos is that there’s really no revision process. You may internally revise them yourself as you’re working on them. I certainly did, especially for long ones that were more significant cases. But there’s really no opportunity to fix it if you don’t do it right the first time. So I thought it made me better at thinking about the whole life cycle of a case. It’s much more natural now for me to ask, what happened in the district court, what did the court of appeals say, yadayada, all the way through, rather than just thinking about cases in terms of an abstract legal issue.
So yeah, I think probably if you calculated it all, I wrote 200-250ish of these over the course of the year. You just couldn’t help but get better as a writer, when you’re responsible for that volume of work, to say nothing of all the internal chambers memoranda that we would write for the Justice and the assistance we’d provide him with drafting. If you’re doing the job right, you will emerge as a better writer than you came in. It’s almost impossible not to.
It’ll definitely be interesting in fifty years when Justice Scalia’s papers come out. You’ll get to revisit all the drafts and memoranda.
Yeah, I’m really looking forward to that. It was a really exciting term, and I look forward to being able to review some of that stuff and take a trip down memory lane.
When you start working at the court, all of your Justices’ papers are there and available for us. If we needed to look at the case files for old cases, we could do that. Everything since 1986 was right there in papers, and if you needed to look at it — or frankly, if you just wanted to look at it — you could. And we did. I mean, I made a pretty regular practice of looking back at some of this stuff. For example, the case file for Lawrence v. Texas. I was really interested to read that, and there was some interesting stuff in there. And one day, when it’s public, I think people will be pretty interested to study its contents.
But I don’t know what has happened since. So I’ll be really interested to read those papers, and especially to read about King v. Burwell — about the availability of the subsidies of the federal government-run exchanges. Super interesting stuff. If you’re a Supreme Court nerd as I am, there’s really nothing better than these things. I would encourage you to check out some of the Justices’ papers. Justice Thurgood Marshall’s papers, for example, are public at this point, and they’re really, really interesting. You can learn a lot about the Court that way.
I’m going to switch gears a little bit to the opinion-drafting process. When Justice Scalia was drafting an opinion and required the law clerks’ research, what did you do? Did you flock to the Supreme Court library, use the internet…?
A little bit of both. The thing that was most helpful with just pure research questions is that the Supreme Court has a staff of research librarians who are incredibly good at what they do. They are all both lawyers and have PhDs in library science, and they are incredible at providing not just very thorough and accurate research and response to research questions, but very quickly. There are lots of examples where I needed to know the answer to a hard question about whatever, and my first stop always would be with those librarians. The principal legal research was between the parties’ briefs, the Justice’s own opinions (at that point he had almost thirty years of opinions, sort of explaining his views on a huge range of issues) and the librarians. That usually provided a great deal of help in figuring out what to do with these cases, and in helping him.
But of course, there were many instances where you had to do things yourself. I remember very fondly once that he was giving a speech — he would sometimes have the law clerks help him with speech drafting as well as opinion drafting — he was giving a speech about Arthur Goldberg, who was a very liberal Supreme Court justice who only served for a few terms on the Court. He was giving it to some pro Arthur Goldberg kind of society. He called me in and he said, “You know, I really should be saying something nice about Arthur Goldberg. I’m not exactly the most logical person to be saying what a great Justice he was. But I’ve agreed to do this, and I’m going to do it. So I need you to find me an opinion of his that I can credibly say that I think is good, and is also interesting. Oh, and by the way — he was only on the Supreme Court for three or four years. That’s the kind of situation where I had to sit down and read, or at least look at, every single opinion Arthur Goldberg authored on the Court. I tried to find one that the Justice would like and was actually good, and was on some significant issue. So stuff like that you had to do yourself.
When you were conducting opinion research, was it usually by yourself, or would you collaborate with your fellow clerks?
Usually, we all had principal responsibility for individual cases, so everybody kind of worked on everything. We showed each other drafts of things, and we talked as law clerks about everything that we were doing. But the court had enough cases that it was really most efficient for one person to be principally responsible for each of the cases.
To what extent were you able to affect the final content of an opinion that Scalia had put under your purview?
Well, it depends a little on what you mean by the content. If you start with the disposition in the case, that kind of depends on how strongly he came in with a view about the right answer. He always wanted to talk about the right answer with all of the law clerks. He wasn’t just having these conversations for our edification. He was genuinely interested in hearing what we had to say about these cases and what the right answer was, so those conversations can and did move minds and affect things.
In terms of the actual content, I think that depended very much on the quality of what you were able to give him. So if you wrote something that he really liked, it was much more likely that he’d keep that in the final opinion than if you were giving him workmanlike stuff that he was going to revise and turn into something that he was more happy with. Similarly, there were plenty of instances where we would talk to him about draft language in opinions and say, “I have a concern with this,” or “I think this is maybe going to convey not quite what you mean.” There were times where he heard us out, and there were times where he said, “I appreciate you talking about this, but I’m going to do it my way.”
But it was always very much the kind of environment where you were encourage to pipe up. If you didn’t think that this line belonged in an opinion, it was your responsibility to say so. That doesn’t mean you’re going to get your way, but I did think of it as my job to bring my concerns to the boss and let him do what he was going to do with them.
I would say you definitely did have some ability. The great pride of the law clerk is to look back on cases that you worked on, or you were helping your justice with that case, and to see some sentence buried in the middle of the opinion and remember, that was mine. I wrote that one, and he kept it exactly the way it was, and I’m proud of it. It’s not the kind of thing you can ever really tell anybody. It’s just the kind of thing you have to be satisfied with yourself. But it is really satisfying.
How did you strike a balance between being deferential to Justice Scalia and being assertive enough to make your points?
I struggled a little bit with it at first. By the time I worked for him, he was a living legend. It was like working for Justice Holmes in the last years of his life or something. You just knew that this person was already legendary, and so that is intimidating in one sense. But I think I tried to encourage myself to get over that, because he is not going to be helped in doing his job by hero worship. What he needs from his law clerks, and what he was looking for when he hired us, was people who would not be bowled over by the force of his personality and the force of his legend. What he needed from us was stiff spines, and willingness to speak up when we thought there was something that needed to be said.
Early on — I remember, very early on — discussing… I don’t even remember what case it was. Some case on the October calendar. All five of us were together in chambers. And he was almost disappointed, because the four of us all agreed on the right answer to a case, and that also was the answer that he thought was right. You could tell that what he really hoped for was at least one of the four of us would have some good reason that the case should come out the other way. Then there could be some real debate, and maybe we’d uncover some better understanding of the case. So he really played a large role in encouraging us to foster an environment of free discussion.
I’m not sure if you can reveal this, but what were your most frequent disagreements with Justice Scalia?
In terms of writing organization, I’m not sure that we really had disagreements. Especially on matters of style, I viewed it as, “These are your opinions. You’re signing your name to them. They should sound the way you want them to sound.”
I would say the most frequent disagreement we had was what the methodologies that he very much believed in — textualism and originalism — meant for the right answer in a given case. There were plenty of instances where I thought, “I just do not understand how you can read the statute this way. The statute, more or less to me, obviously requires this, just on its text.” And his view was exactly the opposite. We would go back and forth on that, and he would really make sure that he heard it out. There were times when I think I changed his opinion a little bit, and there were plenty of times that I didn’t. There were times when he changed my opinion, which is also a good thing and not a surprise. For me, that was the most frequent source of disagreement to the extent there was one – which is, what is the right answer in this case using the tools that everyone agrees should be used. Because he didn’t think it would be useful to have a debate about the merits of textualism. He was pretty committed on that question at this point, and that’s fine.
Since you’re a liberal, how difficult was it to adopt Justice Scalia’s arguments and his voice?
It was interesting. I think I was helped by the fact that I had spent some years as a practicing attorney before working for him, and so I was used to the idea of a difference between me and, as a practicing attorney, the client I was working for. That wasn’t too tough for me.
Especially because I tried to work with him on cases… well, for example, in criminal procedure cases. I didn’t really perceive a lot of daylight between us on those cases, and so I really liked working on those kinds of cases with him. Because then, I actually sort of enjoyed the process of pushing him along further into his own instincts, which I found to be quite correct in those cases.
In the other cases, just remember: this is a humble job. You are a law clerk. You are not a principal in this story, you are not Senate-confirmed, and no President ever nominated you to anything. These nine people are here to decide these cases, and you are a helper, a law clerk — a humble name for what should be a humble job. That’s how I always thought about it, and there were plenty of cases where I worked with him where I would have resolved the case in the other direction. But the difference is that I don’t have a commission signed by the President hanging on my wall, and he does, which suffices, for me, to resolve the matter of whose judgement should control. So I didn’t find that to be particularly hard.
Law clerks are known for being pretty secretive about their time at the Court. Were you explicitly told to keep your work confidential, or was it an unstated rule?
It was told to us quite explicitly on a couple of different occasions. There’s a law clerk manual that says that you have to do it, and the Chief Justice at the beginning of the year does a set of remarks to all the new law clerks gathered in a room together about the job. Confidentiality is emphasized.
But nothing will ever beat Justice Scalia on probably the first day that all four law clerks had started. He summoned us all in and said, “Welcome aboard. I’m really happy to have you. Here’s how I run chambers. It’s an open door — if you need to talk to me about something, just come and talk to me.” And he said, almost with a hint of regret that he had to do this — obviously he was not that regretful, because he did do it — he said, “I want to just emphasize something, and I only want to say it once. If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Then he just let that hang there for a second, and moved on to other subjects. It wasn’t said in a mean way, but it also wasn’t said in a way that admitted the slightest misunderstanding. He certainly did not sound like he was even a little bit kidding. Again, at the time, I’m a twentysomething year old lawyer. This is Justice Antonin Scalia. It does not require his power to ruin my career. The amount of power in his pinky finger was quite sufficient. So as a result, I think I’ve never really been tempted to betray his confidences and I doubt I ever will be. He only said it once, and other than that he was quite a genial boss. But in that one moment, you really got the sense that he was serious.
That sounds terrifying.
It was, and I think it was intended to be! It did put me in the right frame of mind about it. Which is, you know, you’re going to learn some secret stuff. And you should just know the consequences both ways.
Do you ever have any doubts about what you’re allowed to reveal?
Not really. If I’m in doubt about the matter, then I just don’t say anything. Because so much of what’s interesting about the job, I don’t think is even arguably secret. For example, the way the pool memo works.
I kind of draw the line for deliberations and processes surrounding the disposition of any particular case. Those I never discuss, with one sole exception, and it’s a very nice thing that the Justice used to do for his law clerks. When you are finishing your clerkship, it had become customary for the justice to sign a copy of some opinion that you had worked on with him over the course of the year. And the inscription was always more or less the same; in my case, “To Ian, with my thanks for help on this and many other fine opinions. Antonin Scalia.” And the deal was, you can then put that in a frame and hang it up on your wall. Which does then indicate that you were the law clerk who worked with him on this particular opinion. There was that one thing, and that you meant had to choose well. You’re only going to be able to get one opinion where you can tell people, “Yup. I got to work with him on this case, and the proof is hanging up right there.” You had to choose wisely. So it’s been a project of mine on the show to ask former Scalia clerks what opinion they’ve got signed hanging on the wall.
If you don’t mind my asking, which one do you have on your wall?
I don’t mind! In fact, I’m glad you did because, again, it’s like the only fact I can reveal substantively. So I chose quite an unusual decision. Usually the custom is you would pick a majority opinion, but I did not do that because I wanted the dissent in Maryland v. King. He and I had worked on it very intensely, and we both felt very strongly about it. And even though we lost, it was very close — it was 5-4 — and I was very proud of the opinion that he had produced in the case. I thought it really emphasized a lot of the things that make him a great Justice. I also wanted to have it on my wall so one day when it was overruled, I can remember that we’re always hoping for it.
Sorry for switching topics so suddenly, but I kind of want to jump back into the weeds again. How did you prepare Justice Scalia for oral argument?
Well his process was fairly straightforward. So he would read, of course, the briefs himself, and we were expected to read the principal briefs ourselves. And sometimes before argument, he would call us in and have questions or want to talk about things. So that happened sometimes at his initiative. But usually, our principal interaction before oral argument would be 1) letting him know which of the amicus briefs that he had not already picked out of the pile to look at, were important and that he should read. Because in cases with 100 amicus briefs, some of which were repetitive of others, he sort of relied on the law clerks. You know, screen these down to the ones that really add something and let me know what they are. And also to write him an argument memo — sometimes called a bench memo; in chambers, we called them argument memos. Which were, first of all, two pages maximum. Absolute maximum. And there were instances where they were just one page and he was happy with that. Expressing our view on the right answer in the case and the reasons for that, with the understanding that he would read them after he had read the briefs and other principal materials in the case and things like that. He would usually look at those the day before argument or the morning of, just to sort of get a quick perspective from his law clerk before he’d go into argument. That’s how we did the pre-argument stuff.
He didn’t make up his mind firmly on the right answer on a case, however, until after argument was over and he’d had an opportunity to talk about the case with the four of us in chambers before going to conference to actually cast his vote. Because remember at the Supreme Court, they don’t go and conference about the cases right after the argument. There’s a couple of days in between where they can sort of reflect on what happened and come to a firm conclusion. So we’d have a lot of interaction with him in that sort of interregnum period, where we’d sort of sit down and really hash those cases out in great depth. But the process of getting him ready for argument was, I would say, principally, screening out those amicus briefs that he needed to really look at, reading the briefs yourself, talking to him if he had questions, and giving him the argument memo at an absolute maximum of two pages.
Was this substantially different from how you prepared Judge Kozinski for argument?
It’s not too different. I think the bench memos were a little longer for Judge Kozinski. He didn’t impose any hard limit. I would still aim for the 5-10 page range, unless the case was really really complicated. Judge Kozinski also talked to us a little more before the argument about some of these cases. I think that’s just the nature of the Court of Appeals’ work, because in the Ninth Circuit, the conference for the cases is right after the argument. There really isn’t that interregnum, and so you have to do more talking with your boss before the argument. Of course you talk after as well, but you’re hoping to not have to change the outcomes in cases and things like that. So you’re trying to do it more at the front end. But it wasn’t too different.
Did Justice Scalia ever treat you differently from his conservative clerks? Not necessarily in a bad way, but in terms of your responsibilities.
I don’t think so. Or at least nothing that I was ever able to really sort of tell. I suspect, for example, that assignment to help him out with the Arthur Goldberg speech… that may have had something to do with my distinctive identity. But the truth is, my vision of the role was not that I was going to be arguing with him about first principles and things like that. I was there to help him use the methods that he believed in to reach the right outcomes in these cases. In other words, I was there to be a faithful agent of his, just with different political priors than he may have had. And so, I don’t think that he ever really treated me differently. I think I was blessed to have quite a good relationship with him, so I never sensed that. I know that some other people have, and I think that sort of proves that everybody does the job a little bit differently.
During your clerkship, were there any areas of the law that you became interested in that you hadn’t previously liked or been aware of?
Hmm. Let me think about that. I’m not sure there was anything I wasn’t aware of before. Whether or not my mind got changed on any kind of areas of law that I hadn’t liked before, I’m not sure, but I think maybe no. But that’s because I had been an appellate generalist. I think every area of law is pretty interesting (at least for a little while). That’s why I enjoyed the job of being a law clerk — that’s why I enjoyed the job, as I was for six years, of being an appellate litigator. You can do anything. Everything is interesting.
I will tell you, I did get a little tired of the federal circuit’s patent law decisions by the time that I was done. Because you read a lot of cert petitions in patent cases, and there is this arcane vocabulary in patent cases and in patent law that I really got tired of by the end. But I think that’s just because these words are obtuse and not so elegant, not because there’s anything wrong with the substance of patent law. So it actually made me annoyed with an area of law I hadn’t been annoyed with yet.
How much free time did you have during your clerkship?
I had some free time. And I think part of that was, number one, the Justice encouraged it by himself leading a relatively normal work schedule for a person who does, after all, have a very important job. But I mean, he would go home at night and eat dinner. And he would not expect us to be at the Court at 1am or something. There were instances, of course, especially late in the term, when we’re really working through the weekend because we’re getting close to the deadlines in these major cases and we’ve got to get them out. But he generally fostered a work environment of, “You have multiple responsibilities.” In fact, he said that to me during my interview. He said, “What are you going to do when you graduate?” And, you know, I told him that I maybe wanted to move back to New York, probably work at a law firm. And he encouraged me to choose a place that would allow for time for life’s other responsibilities. He said, “You’re going to have responsibilities to your family. You’re going to have responsibilities to your church. You have all sorts of responsibilities. These aren’t leisure activities — these are responsibilities just the way that your professional work is, and you need to make sure that you attend to them.” That has always really stuck with me — it really has — and so he set a very good example in that regard.
The other thing was, when you’ve been on the Supreme Court for thirty years, and the question presented in a case this term is whether or not a case from which you dissented five years ago should be extended or expanded into a new area, the answer is a pretty easy call. There’s a huge body of work, so you don’t have to figure out anything from scratch.
I thought Justice Breyer also kept pretty reasonable hours. Kind of at the other end of the spectrum, the Kagan clerks, and Justice Kagan herself, are just famously, famously super hard workers. And you can tell in the work product — it’s excellent. So there is that. But a little free time. Not too much, but a little.
After working with him so closely, do you feel obligated to defend Justice Scalia when he’s misrepresented or criticized?
Oh, I don’t know if he needs my defense. I think, in the main, his body of work will speak for itself. And he himself was famously not concerned about his legacy after his death. All he really wanted to do was get the right answer in these cases, and do so by sound methods. I do, of course, feel — because I developed over the course of the year — I came to like him as a human being. Of course there is always the human instinct to want to stick up for someone that you like when they are criticized by someone else who does not know them. But I think that, I’ve never really felt that he needs me, or really anybody else, to do that. He is his own best defender. He is the clearest expositor of his views. That said, I am working on a book review on a book that’s about him. So I guess I am interested in some kind of public discussion of the man. So yeah, I suppose I feel a little bit of that. And it’s especially strange, of course, because everybody knows that I’m quite firmly planted on the political left, which can lead to some interesting conversations, to say the least.
Are you reviewing that Rick Hasen book [The Justice of Contradictions]?
I am, yeah. Have you read it?
I have not, but I’d like to. Was it good?
Yeah. I read it over the course of either just one day or maybe two days. I really couldn’t put it down. There’s a lot in there that I think is smart, and there’s a lot in there that I do not agree with at all. But I think it is a book worth reading, and I’m glad that I’m getting a chance to review it. So I definitely recommend it to you, if only so then my review will make sense to you.
Are there any other books about Justice Scalia that you’d recommend?
Well, if you haven’t read his own book, “A Matter of Interpretation,” I would really recommend it to anyone as an introduction to his way of thinking about the law. It was actually originally delivered as a lecture, I believe, and was published in the late 90s. It gives an excellent window into how he thinks about deciding cases, so it’s a lot of fun to read.
“American Original,” which is a biography of him, is worth checking out. It’s somewhat about his work as a judge, but also just about him as a human being, which is interesting.
Ed Whelan and Christopher Scalia have also edited a volume of his speeches called “Scalia Speaks.” Most of the speeches in that book have never been publicly released — probably printed before; obviously they were given in public, but there’s no record of. And I’m very glad that they published this volume, because he addresses a huge number of subjects in these speeches that he never had occasion to discuss in his judicial work. There’s a lot of really interesting stuff in there about religion, for example — a subject that I think is really interesting to hear his thoughts on — and many many other things. If one is interested in Justice Scalia’s accounts of his own beliefs in his own words, it’s an excellent volume, and one I’m really glad exists.
When I was a law clerk, there was a folder on the kind of chambers network drives that had all of his speeches. So sometimes, just to kill half an hour, or more realistically, to put off my work on the cert pool, I would go and read one of these. And I would always just be blown away. I was like, “Has this ever been printed anywhere?” Usually the answer was “no.” I’m really glad that they decided to release them, and I think it’s worth checking out.
How often did you hang out with clerks from other chambers?
All the time. It’s very tight-knit. The year I was there, there were thirty-nine law clerks. I was very close to lots of those people, and you do socialize quite a bit with them. There’s a weekly happy hour that the clerks organized for themselves — each chambers would take a turn in organizing them, so that was a lot of fun. We usually had themes and kind of silly invitations.
And also, these are the only people you can talk with about the things you spend most of your day thinking about. The year that I was clerking there was when the Court had the cases about the Defense of Marriage Act and Proposition 8. These were huge cases of national interest, and of course you’re thinking quite a bit about what’s the court going to do. But you can’t talk about it with anybody you know except the other law clerks in the building, who are privy to the same information.
And everybody starts at about the same time, and they’re there for exactly a year. People aren’t all at the exact same phase of life, but you’re all relatively recently out of law school, so in approximately the same life stage. So there is a bit of a summer camp feel to the whole thing. And unsurprisingly, it’s pretty routine for new relationships and marriages to bloom out of that year. The year that I was there, a clerk from Justice Ginsburg’s chambers and a clerk from Justice Sotomayor’s chambers sort of met each other, they fell in love — they’re married now. They have a baby now. It’s very nice. It’s excellent. So you do end up really making close friends with people in other chambers, which I really liked about it a lot.
Which OT 2017 case are you most excited to learn the final outcome of?
For me, it’s almost a tie between Gill/Benisek and Janus — the one that’s about whether or not to overrule Abood. I famously called Gill the most important case of our lifetimes, so I can hardly promote anything above it. And I think that’s fair, because if the Court actually says that partisan gerrymandering is illegal in some circumstances, we’re going to be off to the races all summer in three judge district courts in every state in the country, perhaps. It’s going to be on the eve of a midterm election, which is really going to be unlike anything we’ve ever seen. But I also have to admit that Carpenter, which is about the warrantless location of a person’s location records from their cell phone company — I wrote my student note on that subject ten yeras ago. And I’ve cared very much about the answer to it ever since. It’s the closest to the academic work that I do on the Court’s docket this year, so I have a soft emotional spot for Carpenter, even though I understand in terms of practical significance that partisan gerrymandering cases probably are larger.
Let’s say you’re stuck on an island, and you can bring anyone from the Appellate Twitter community with you for company. Who would it be?
Oooh. Boy, that’s a tough question. Could be a polarizing answer. If I’m going to be stuck on a desert island, I think I’d want to take someone resourceful who could help me get out. Because I don’t want to be stuck on the desert island forever. The problem is, I’m struggling to think of any appellate tweeter who would be excellent at helping me escape the desert island. No, I just realized who it is! It’s so obvious.
It’s Fane Lozman. He’s part of the Appellate Twitter community at this point, he’s a Marine, and he knows how to sail. So we would be able to build a boat together and sail out of there and get back to his dog, Lady.
Well I’d have to correct you — you wouldn’t build a boat, but a floating home with the capacity to sail.
[laughs] Yes, exactly. Precisely correct. A sort of livable barge.