How did Justice Horace Gray impact Chief Justice John Roberts?

December 10th, 2010

Chief Justice Roberts clerked for Judge Friendly, who clerked for Justice Brandeis, who clerked for Justice Horace Gray. The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts takes a look at how this chain of clerkships ultimately impacted our current Chief Justice.  Here is the abstract:

During his Supreme Court nomination hearings, John Roberts idealized and mythologized the first judge he clerked for, Second Circuit Judge Henry Friendly, as the sophisticated judge-as-umpire. Thus far on the Court,Roberts has found it difficult to live up to his Friendly ideal, particularly in several high-profile cases. This Article addresses the influence of Friendly on Roberts and judges on law clerks by examining the roots of Roberts’s distinguished yet unrecognized lineage of former clerks: Louis Brandeis’s clerkship with Horace Gray, Friendly’s clerkship with Brandeis, and Roberts’s clerkships with Friendly and Rehnquist. Labeling this lineage a judicial genealogy, this Article reorients clerkship scholarship away from clerks’ influences on judges to judges’ influences on clerks. It also shows how Brandeis, Friendly, and Roberts were influenced by their clerkship experiences and how they idealized their judges. By laying the clerkship experiences and career paths of Brandeis, Friendly, and Roberts side-by-side in detailed primary source accounts, this Article argues that judicial influence on clerks is more professional than ideological and that the idealization of judges and emergence of clerkships as must-have credentials contribute to a culture of judicial supremacy.

More broadly, this article argues that “judicial influence on clerks is more professional than ideological.” This runs counter to a number of articles which address the negative and politicized impact of the Justice by clerks.

The emphasis on law clerk influence and ideological polarization is misplaced. Although the role of most clerks has changed from researchers and fact checkers to opinion drafters,22 the notion that federal judges delegate too much power to their clerks is overstated. Nearly five years after his clerkship with Justice Robert Jackson and in an article that began the modern debate about law clerk influence, William Rehnquist accurately described clerks as having a “worm’s eye view” of the Court.23 It is far-fetched to think that during a single year a politically-motivated law clerk can achieve some sort of Svengali power over a much more experienced judge. Judges want clerks who will implement their wishes and that often means hiring likeminded clerks. But just because someone clerked for a Republican-appointed judge does not mean he or she must be a Republican—particularly at the federal courts of appeals, which have more Republican-appointed judges.24 Finally, the proposal about rotating clerks among Justices would rob recent graduates of the professional rewards from working closely with a single judge.

But how do Judges influence their clerks?

By laying the clerkship experiences, career paths, and jurisprudence of Brandeis, Friendly, and Roberts side-by-side, this Article suggests that the influence of judges on clerks is more professional than ideological. Although an admittedly fine line, professional influence includes ethical, jurisprudential, and practical lessons; ideological influence is more political. By the time they start clerkships, most law graduates are fully formed politically or ideologically but inexperienced professionally. Judges play multiple professional roles in the lives of their clerks: as exemplars of judicial ethics, craftsmanship, and decision-making; as mentors and career advisers; and as role models and sources of inspiration long after judges have retired or died.

Very interesting topic. This 96 (!) page article has a lot to digest.