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CHAPTER NINETEEN
Behind the Black Robes
Before we go into the shocking aid which the justices of the Supreme Court have rendered to the communist conspiracy in America, it might be well to take a look behind those black robes at what are known as the “bright young men.”
When we visit the chamber of the Supreme Court of the United States, we see sitting before us, high above the audience and the disputing attorneys, nine imposing, black-robed justices. But behind the justices, in the inner reaches of the beautiful Supreme Court building, sit eighteen young men through whose hands pass much of the work of the Court. They serve the justices for only a year or two and then are replaced by others of their kind. During their service to the Court, we seldom see them or hear of them. But some of them have gone on to fame of a kind. Dean Acheson was one of them, and so was Alger Hiss. Another, who served Justice Frankfurter, later served a term in jail in a vote-fraud case in his native state. Many others, of course, have attained respected and useful places in the legal profession and in politics.
These bright young men are the law clerks of the justices of the Supreme Court. As of the 1957 session of the Court, seven justices had two clerks each, Justice Douglas had one, and Chief Justice Warren had three—eighteen in all. They are picked by the individual justices for whom they will work, and are taken from among the top performers of the graduates of leading law schools, generally on the recommendation of the deans.
Quite naturally, this brings up the question of how much influence these young men exercise on the justices and what part they have played in the type of decisions we have been getting from the Court these past two decades. First of all, it is beyond belief that a justice would choose as his law clerk a young man diametrically opposed to the justice’s views. Second, these young men are the products of schools and universities which have been thoroughly infiltrated—in some cases saturated—with left-wing thinking. Six of the eighteen, for instance, serving the justices in 1957 came from the Law School of Harvard and three others from Yale. Yale, and particularly Harvard, have been hot-beds of New Deal-collectivist-left-wing teaching in recent years.
Washington, D.C., is, of course, the breeding ground of the genus known as ghost writers—those who pen the words that appear over another’s name. Their habitat is sometimes the halls of Congress, but more often the government bureaus, the Cabinet, and the White House. And many believe that the ghostly art is practiced also in the inner sanctums of at least some of our Supreme Court justices, by these bright young law clerks. There are Supreme Court justices, of course, who have been perfectly capable of writing their own opinions. But there are also those who cannot—which is still another commentary on the type of Supreme Court appointments we have had at the hands of our last three presidents. And if a judge is inclined to indolence, or is not very sure of his own legal capabilities, or is busily engaged in activities outside the Court, he is liable to lean very heavily on his law clerks when the time comes to write an opinion.
However, some scraps of evidence have begun to appear, so that we need not speculate on this score. Justice Minton, for example, after his retirement from the Court, was asked if his clerks helped in drafting opinions. He replied: “In my case, after an opinion was written I submitted it to the boys for their comments and criticisms. And if their criticisms were valid the opinion was rewritten” (italics added). It is important to remember that “the boys” have just graduated from law school, that they have never practiced law, and that some of them are not yet even members of the bar.
Even more impressive evidence is supplied in a biography of Chief Justice Stone by Alpheus Thomas Mason (Viking Press). The Chief Justice is quoted as saying at one time: “I am a good deal troubled by the dissenting opinion which Justice Black has just circulated . . . He states a good deal which counsel did not take the trouble to present . . . I see in Justice Black’s dissent the handiwork of someone other than the nominal author.” And the same book points out that two paragraphs in a historic footnote to one of Justice Stone’s own opinions were written by his law clerk. The clerk, Louis Lusky, said Stone “adopted it almost as drafted, simply toning down a couple of overemphatic words.”
But it is in the selection of cases that will come before the Court for review and decision that these bright young men come into their own. Each year anywhere from 1,500 to 2,000 appeals are made to the Supreme Court to hear and decide cases which have been settled one way or another in the lower courts. Obviously, a great number of them are outside the jurisdiction of the Court. Or they may involve precedents in the law so well established that a review by the High Court, assuming the lower court has followed those precedents, would be a waste of time. Or they may be cases similar to or identical with ones previously passed upon by the Supreme Court and therefore decided accordingly by the lower courts.
The Supreme Court can hear and decide on fewer than ten percent of the more than a thousand cases that ask for hearing. But who is to decide what cases shall be heard? The rule is that when any four justices agree to grant a petition for certiorari—as these appeals for hearing are known in legal jargon—the Court will hear arguments in the case and decide it. But each of these petitions involves a brief asking the Court to hear the case, another brief asking the Court not to hear it and, likely as not, a record of all the legal proceedings in the lower courts.
Somebody has to read all this, digest it, and put it into simple and easily read form for the justices before they can decide whether to hear a case or not. That’s where those eighteen young law clerks come in. This mass of petitions is split up amongst them. Each clerk then writes a summary or memorandum for his justice. This summary ostensibly states the facts of the case, the law on which the lower courts depended in deciding it, a short statement of previous cases on the same point and—finally—a recommendation by the clerk that the case be heard or not heard by the Court.
It is then up to the justice, of course, to decide whether he will accept or reject his clerk’s recommendation. But we can see how easy it would be for a young law clerk, fresh from the groves of academe, where he was filled with a burning desire to remake America into the bright new socialist mold, to let at least some of his zeal creep into his recommendation.
There is an indication of how potent this influence has been in the fact that, in late 1957, the Harvard Law Review found that the Warren Supreme Court was falling badly behind in its docket of cases. The thing that was causing the trouble was that the Court was agreeing to hear an unprecedented number of cases. In the 1956-1957 term, for instance, it agreed to hear 208 cases. From 1948 to 1955, the figure ran from eighty-eight to 162 cases per term. Legal experts familiar with the Court’s work said it deserved no sympathy for the jam into which it had got itself. It was busy putting its “liberal” hand on a whole batch of lower court decisions on the assumption that these courts didn’t know what they were doing. It would be interesting if we could have another survey of how much these bright young law clerks had to do with the high court’s determination to make the lower courts truly “inferior.”
But we need no longer be in any doubt as to the power wielded by these workers behind the scenes. Congressman Gordon H. Scherer of Ohio, a member of the House Committee on Un-American Activities, had noted the influences under which these recent graduates had come in their college years. A number of college professors had been called before his committee. Congressman Scherer said:
Our committee hearings have disclosed a considerable amount of ill-will, bordering in some cases on hatred, by many professors for congressional investigating committees. They have determined in one way or another to destroy these committees ever since some of their clique were subpoenaed to tell about their communist and communist-front activities.
As a member of a congressional investigating committee, Congressman Scherer was especially interested in reading carefully some of the Supreme Court’s decisions affecting the rights of congressional committees. He said:
I have read in some of the recent shocking Supreme Court decisions almost the exact words, phrases and arguments that have been used by some of these professors in their attacks against the committees.
Congressman Scherer suggested that these words and phrases very well might have crept into the decisions of the learned justices via some of those professors’ former pupils, now hidden behind the bench of the highest court in the land.
Thanks to the enterprise of the weekly news magazine U.S. News & World Report, we have had an even more authoritative statement of the role of those bright young law clerks from one of their own number. U.S. News hunted up a former law clerk to Justice Jackson—William H. Rehnquist, now with a law firm in Phoenix, Arizona. In its issue of December 13, 1957, U.S. News & World Report printed the following words* from Mr. Rehnquist:
The bias of the clerks, in my opinion, is not a random or hit-and-miss bias. From my observations of two sets of Court clerks during the 1951 and 1952 terms, the political and legal prejudices of the clerks were by no means representative of the country as a whole nor of the Court which they served.
After conceding a wide diversity of opinion among the clerks themselves, and further conceding the difficulties and possible inaccuracies inherent in political cataloguing of people, it is nonetheless fair to say that the political cast of the clerks as a group was to the “left” of either the nation or the Court.
Some of the tenets of the “liberal” point of view which commanded the sympathy of a majority of the clerks I knew were: extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren.
And Mr. Rehnquist frankly added:
I cannot speak for any clerk other than myself in stating as a fact that unconscious bias did creep into his work. Looking back, I must admit that I was not guiltless on this score, and I greatly doubt if many of my fellow clerks were much less guiltless than I. And where such bias did have any effect, because of the political outlook of the group of clerks that I knew, its direction would be to the political “left.”
We may be sure the situation is no better today—and may, indeed, be a great deal worse, as Congressman Scherer discovered in the parroting of words of leftist professors by the justices of the Supreme Court.
But, you say, what is the Court to do? The justices have to have clerks and they naturally choose those they think will be in sympathy with their views. Perhaps. But bear this in mind. These clerks are government employees. Their pay ranges from $5,500 to $6,500 a year—paid not by the justices but by the American taxpayer. And they are in a class by themselves as government employees. Unlike most others, the eighteen bright young men who serve as law clerks to the justices of the Supreme Court are not subject to the regular government security or loyalty checks.
* Reprinted from U. S. News & World Report, an independent weekly news magazine published at Washington. Copyright (1957) United States News Publishing Corporation.
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