Judges Commons^™

Thoughts On Law Clerk Diversity And Influence, Todd C. Peppers

Scholarly Articles

It is my great good fortune to have been asked to comment on the remarkable Article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Justice Goodwin Liu. Drawing on a rich vein of data gathered pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks. The authors pay special attention to the role that diversity plays in picking …

Gertrude Jenkins, Unplugged, Todd C. Peppers

Scholarly Articles

Gertrude Jenkins worked for U.S. Chief Justice Harlan Fiske Stone until his death in 1946. Adept at multi-tasking, she also ran a boarding house to make more money. A position as a floating secretary was created for Jenkins at the Court, and she worked in other chambers as well as the Court library until October 1949, when she accepted a position in Justice Frankfurter’s chambers. Jenkins retired in August 1953.

Gertrude Jenkins’s letters neither shed light on the grand constitutional issues of her day nor provide insights into the justices’ jurisprudential views. They will not cause historians to radically reevaluate …

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Scholarly Articles

The original arguments against court packing carry less weight in the current social and constitutional era. Less weight, however, implies some validity to those concerns and within those arguments is an acknowledgement that court packing comes with some risk to governmental stability. Still, the original arguments against court packing cannot be categorized as strong in the current climate.

A better argument against court packing is simply that it is unlikely to be effective for any long-term informal constitutional change that is responsive to key social issues. Informal constitutional change is more clearly stable when it involves structural change rather than …

Chief Justice Melville Weston Fuller And The Great Mustache Debate Of 1888, Todd C. Peppers

Scholarly Articles

Over the long history of the Supreme Court, nominees to the highest court in the land have been opposed for a variety of reasons. Often opponents are concerned about the nominee’s political ideology or competency. Occasionally, allegations are raised about political cronyism. And candidates have come under fire for their religion. But nominee Melville Weston Fuller’s selection launched a national debate that went to the very heart of what makes one qualified to sit on the Supreme Court: whether a judge should have a mustache.

On March 23, 1888, Morrison R. Waite died of pneumonia after sitting for fourteen years …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Scholarly Articles

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author's focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own.

To support the …

A Secretary's Absence For A Law School Examination, Todd C. Peppers

Scholarly Articles

The May 5, 1893 letter from Justice Horace Gray to Chief Justice Melville Weston Fuller touches upon several different strands of Supreme Court history. To place the letter in context, we need to briefly discuss the creation of the law clerk position as well as the different functions of this first generation of law clerks. And we need to talk about the untimely death of a young Harvard Law School graduate named Moses Day Kimball.

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, …

To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller

Scholarly Articles

Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book, …

Justice Stevens And Securities Law, Lyman P.Q. Johnson, Jason A. Cantone

Scholarly Articles

In this Article, we tell the overlooked story of Justice Stevens's important role in Supreme Court securities law decisions. In Part I, where we briefly highlight Stevens's career before his 1975 appointment to the Supreme Court, we observe that we can identify no evident interest in or connection to federal securities law or the securities industry, making his contributions all the more remarkable. The only foreshadowing of his prolific opinion-writing on the subject of securities law was his voluminous writing of opinions, in general, while serving on the Seventh Circuit Court of Appeals. This commitment to authoring opinions stemmed, in …

Truthiness And The Marble Palace, Chad M. Oldfather, Todd C. Peppers

Scholarly Articles

Tucked inside the title page of David Lat’s Supreme Ambitions, just after a note giving credit for the cover design and before the copyright notice, sits a standard disclaimer of the sort that appears in all novels: “This is a work of fiction. Names, characters, places, and events either are the products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.” These may be the most truly fictional words in the entire book. Its judicial characters are recognizable as versions of real judges, including, among others, …

Justice Hugo Black And His Law Clerks: Match-Making And Match Point, Todd C. Peppers

Scholarly Articles

Like other Justices on the Supreme Court, Justice Black hired law clerks to assist with the work of the Court. Each year, his law clerks would assist in reviewing cert. petitions, doing legal research, and editing opinion drafts. These job duties, however, were only one dimension of the Black clerkship. As the Justice himself once remarked to a law-clerk applicant, “I don’t pick my law clerks for what they can do for me, I pick my law clerks for what I can do for them.”

Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather

Scholarly Articles

In this Essay, we identify and explore an additional institutional difficulty, which bridges these last two components of the proposed Act. Prior commentary has chronicled the phenomenon of Justices serving beyond the point at which they are able to perform their duties. It has also addressed the unique powers and responsibilities of the Chief Justice, with some arguing that the administrative aspects of the role should be divorced from the effectively life tenure associated with a position on the Court. We wish to highlight a connection. The unique powers and responsibilities of the center chair may make Chief Justices even …

Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers

Scholarly Articles

It cannot be said that Louis Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development of the institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify.

William Thaddeus Coleman, Jr.: Breaking The Color Barrier At The U.S. Supreme Court, Todd C. Peppers

Scholarly Articles

The purpose of this essay is twofold: It will endeavor to succinctly summarize the important events of Coleman’s life and professional career, while making the argument that these achievements were as groundbreaking in the legal community as Robinson’s were to baseball. Admittedly, looking to our national pastime is hardly an original literary maneuver; The myriad similarities and links between baseball and the law have offered rich material for many legal writers.2 Moreover, this article does not wish to diminish Coleman’s accomplishments by comparing them to a mere “game.” By drawing upon the sixtieth anniversary of Robinson’s debut, my hope is …

Law Clerk Influence On Supreme Court Decision Making: An Empirical Assessment, Todd C. Peppers, Christopher Zorn

Scholarly Articles

Here, we undertake the first effort at assessing the existence and extent of law clerk influence in the U.S. Supreme Court. Drawing upon original survey data on the political ideology of 532 former law clerks, we evaluate the extent to which both the Justice's personal policy preferences and those of his or her law clerks exert an independent influence on the Justice's votes. While our results are preliminary, they nonetheless support the contention that--over and above "selection effects" due to Justices choosing like-minded clerks--clerks' ideological predilections exert an additional, and not insubstantial, influence on the Justices' decisions on the merits. …