Strict Scrutiny - Calm Before the Storm

Episode Date: October 7, 2019

On this episode, Melissa and Kate break down the Harvard affirmative action case just decided by a Massachusetts district court; go deep on some of our favorite classic and recent books on the Supreme Court; preview the first two weeks of the Supreme Court’s 2019 Term; and dish about clerking. (This last is a conversation to be continued -- we got tons of questions we didn't have time to discuss, so stay tuned for more on clerkships down the road!) Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back. This is Strict Scrutiny, a podcast so fierce it's fatal in fact. We're two of your hosts. I'm Melissa Murray. I'm a professor of law at NYU Law School. And I'm Kate Shaw. I'm a professor of law at Cardozo Law School.

And today we are at half capacity because Jamie Santos and Leah Lippman, our other co-hosts, are taking a one-episode break, but they will be back in the next couple of episodes. And even though we are half-staffed, you are still getting an episode that is chock-full of tasty tidbits about the Supreme Court and the legal culture that surrounds it. So, Kate, what do we have on deck for today? Okay, let's do a little previewing. We're going to start with some breaking news out of the courts. We're then going to do a segment that we're calling Supreme Reads, basically some of our favorite books about SCOTUS. We're then going to talk about some cases to watch that we didn't have a chance to cover during our big term preview

episode. And we're going to end with a court culture segment in which we talk about clerking, right? Some pro tips for law clerks, people who are thinking about clerking, who are just starting their clerkships. And we have put that segment last because we mentioned on Twitter that we were going to do this segment. We got lots of great questions. We're going to try to answer as many of them as we can. But we got a little bit of weird hate. And so for those of you who don't want to hear about clerking, that segment's last. You're welcome to just listen for the first three quarters of the episode. Excellent. So what's on deck? What's the breaking news? What's the hot tea? Okay, so breaking news first. So this is a breaking development from earlier in the week. So in a long-awaited ruling on a challenge to Harvard's use of race in college admissions,

and this is a challenge that was brought by a group of Asian American students who say they're discriminated against in the way that Harvard does admissions. So in that case, a Massachusetts district court has sided with Harvard and turned away the challenge, at least for now. So a little bit of context. This case was the brainchild of conservative legal entrepreneur Ed Bloom. He was the force behind the various Fisher cases. Those are the affirmative action cases out of the University of Texas and a bunch of other cases. There's this really excellent profile of him that Stephanie Mensomer wrote in Mother Jones a couple of years ago. And his life's work, as he very much affirms,

is dismantling the legal legacy of the civil rights movement. And so this case is essentially the latest salvo, and at least so far, an unsuccessful one, although I highly doubt we have heard the last word on this case. So Melissa, you had a great op-ed on this opinion earlier this week in The New York Times. Do you want to talk about the opinion? Well, I feel a little bit like the turd in the punch bowl because everyone was so excited about this decision because Judge Alison Burroughs did a really fantastic job defending Harvard's admissions policy. She was incredibly meticulous in the decision. It is carefully crafted. She knows this is going to be appealed. She knows there are other cases going

on in North Carolina and that the record she has compiled and relies upon here will be used going forward, not just in this case, but will implicate these other cases. So she did a really, really careful job. I wrote an op-ed in the New York Times, though, where I was a little critical. And I wasn't critical because she did a great job on the opinion. And this is no fault of hers. The opinion relies exclusively on the diversity rationale as the exclusive basis for which the use of race in affirmative action admissions contexts can be permitted. And she does this because that is the law from 2003, Grutter v. Bollinger. But me, as a law professor, as someone who thinks about this,

I really wish that we might have used this case not just to simply double down on the diversity rationale, but to maybe think more broadly about what affirmative action is supposed to serve in the context of higher education, to maybe think about some of the remedial purposes for which affirmative action was originally contemplated, and to think about the broader issues, about challenging these policies by pitting various underrepresented minorities against each other in this case. I'm thinking about the role that privilege and position plays in the admissions policy. There was recently some work from journalists that explained that about 40 percent of Harvard's admits come from legacy admissions, sports and athletes, and students who are labeled DLC, Dean's List kids,

whose parents may be in a position to provide the school with some much-needed philanthropy. So I think there's a lot to discuss here. And this opinion, though it hewed to the law and it did an admirable job in doing so, missed an important opportunity to also engage in a little demos prudence, a little public debate about what these policies are for. Right. So you think, I mean, obviously she is working within the confines of existing doctrine, right? The Supreme Court has taken this very crabbed view of this kind of very narrow type of rationale that might justify some limited use of race in admissions and really just the diversity rationale. So you think maybe one way to have done this differently would have been to reach the same result, obviously conclude that the diversity rationale justifies Harvard's policy, but also gesture at least toward these other kinds of purposes that affirmative action might serve that once upon a time courts seemed open to. And that door has at least by this Supreme Court been pretty slammed shut, But that doesn't mean we shouldn't still talk about them? No, we should still talk about them. And, you know, yes, the court has slammed

the door on them. But there's also been a lot of new evidence that makes the remedial justifications even more compelling. So there has been a lot of journalistic work, academic work about the role that slavery has played, not just at Harvard in building that institution, but in other institutions of higher education. Georgetown famously discovered that its early days were punctuated by slavery funding a lot of its operations. And as part of an effort to remedy that past, they have allowed the descendants of those who were enslaved and whose labor went to build Georgetown to be admitted and to have some role in the current life of that institution. So I think there are places where even though the store has been closed, there are new considerations that perhaps might be brought to bear, not as the exclusive justification, but maybe as an important complement to the diversity rationale, which feels a little feeble even

now. Yeah, that's a really nice point. And I wonder if it has something to do with the way the case was litigated. You know, like, I just, I don't know if she had those kind of full-throated arguments before her when she decided the case. But as you said, whether or not, so this case could, and I think will likely be appealed and be decided by the First Circuit and then maybe by the Supreme Court. But even if not, there are other cases waiting in the wings that raise related or identical arguments. So the court is going to have one of these cases before long. I think if Ed Blum has his way, they will definitely have one of

these cases going forward. And if they do, this is just yet another area in which the change composition of the court could make a huge difference, right? So Anthony Kennedy at the end of his time on the court became, you know, still a vote to uphold certain limited uses of race in admissions. In the most recent Fisher case, that's how he voted. And I have a hard time believing that Justice Kavanaugh will feel the same way, though we don't know. Right. No. So both Justices Gorsuch and Kavanaugh, if a case like this comes before the court, will have an opportunity to stake out as justices their position on this issue. Yeah. So we'll be watching. We'll be watching. Okay. So what are we going to talk about next, Melissa? Well, the weather is turning. So it was rainy and cold in New York today.

And it got me in the mind frame of autumn, fall. And what I love to do in the fall is really cozy up with some good reads. We don't have a fireplace. But if I had a fireplace, for our listeners about some SCOTUS reads that could add a little judicial color to your autumn reading palette. So we have some great recommendations for classic and new books about the court and the justices. So the first one I want to talk about is An Old Chestnut. This is a book from 1979, but it's a great one. This is Scott Armstrong and Bob Woodward's The Brethren Inside the Supreme Court. And this book makes use of Woodward's trademark off-the-record

sourcing as to give us a behind-the-scenes account of the court during Warren Burger's early years as chief justice. So it focuses on the years 1969 through the 1975 term and provides an account of the deliberations on some of the court's most controversial decisions from the 1970s, including, relevant for today, United States v. Nixon, which the court decided in 1974. It also was a huge tea-spilling extravaganza that talked about the justices' personalities. And not everyone fared well in this telling. So Chief Justice Berger was presented as a kind of imperial, overly managerial chief justice who was not necessarily very well liked by his colleagues. Others fared better. Justices Brennan and Stewart were portrayed favorably. And that was perhaps not a coincidence because later after his death in 1985, it was revealed that Justice Potter Stewart was the off-the-record source for a lot of this. So it is a deep, deep dive, and it's super,

super dishy and a great way to start your fall reading schedule. Okay. I have so many thoughts in response to what you just said. One is I read the book in law school, so I don't remember it that well. So I had forgotten that U.S. v. Nixon is during the period covered by the book. So A, I have to reread those portions of it. But I should also say, earlier this week, I listened to the oral argument in U.S. v. Nixon, which is long. It's like a three-hour argument, but it is totally fascinating. And I feel like we should mention if people don't know that there is this amazing resource where you can listen to old audio clips from Supreme Court cases, I think back to about 1955. I think it's like right after Brown. But anyway, it's O-Y-E-Z. But, you know, it's a fascinating way to get a real glimpse inside what the justices were wrestling with, because we tend to encounter these cases as these kind of fully formed things in, you know, the bound volumes

or casebooks. But, you know, the justices wrestle with the questions and the cases along the way. So it's actually really fascinating to see that, particularly with these big canonical cases. So The Brethren is kind of an old chestnut, a classic. Are there more up-to-date accounts of the court that you might recommend, Kate? So I really like Jeff Toobin's The Nine, Inside the Secret World of the Supreme Court, which is kind of the late Rehnquist and early Roberts court. And it's just great sources, very sort of vivid behind-the-scenes account. And then he wrote a second book in 2013 called The Oath, the Obama White House and the Supreme Court that covered the next few years. And I actually think in the genre of kind of pulling back the curtains on the Supreme Court in the modern era, these two are about as good as it gets.

I think they're both really gripping and seem to get most things right. Well, I love his writing. He's obviously a CNN analyst, and we see him a lot on television. But he wrote The Run of His Life, which was about the O.J. Simpson trial and investigation. And I read that in college, and I thought it was just the best account of the O.J. Simpson trial that I'd read or seen at that point in time. And then, lo and behold, it was used as the basis for the most recent O.J. miniseries. So he is a fantastic writer. Both of those books are really great. And again, lots of sort of dishy tea spilling that he gets to as well. Also in the vein of dishy tea spilling, but much more appropriate because it's based on dishy tea spilling archives as opposed to off-the-record sources, is Linda Greenhouse's

book Becoming Justice Blackmun from 2005. And it's based on Justice Blackmun's papers, and it's a really great look inside the court, and in particular, the very complex and fraught relationship between Justice Blackmun and Chief Justice Berger, who were old friends and allies. I think Chief Justice Berger served as the best man in Blackmun's wedding. And when Blackmun was appointed to the court, the two of them were known as the Minnesota Twins, and it was expected that they would vote in a kind of ideological lockstep. But over time, they drifted apart both personally and ideologically, and it became really apparent that there was a huge fracture in their relationship. And so this book documents that, but it also documents a lot of other really important developments, both in

Justice Blackmun's jurisprudence and the court. So there is a really great portion of the book devoted to Blackmun's work on Roe v. Wade, which is the opinion he wrote in 1973, including some speculation that at least some of Blackmun's thinking about the abortion question was shaped by his family's own experience. He had a daughter who became pregnant, married her boyfriend slash fiance, and then had a miscarriage. But he was obviously thinking about young women, their rights, the impact of an unintended pregnancy, what it could be on a young woman's life.

And Greenhouse speculates that maybe this informed some of his thinking on this. And there are also some really good tidbits in here about litigators before the court, including a very young and persistent women's rights litigator who frequently appeared before the court and who later became known as the notorious RBG. So Justice Ginsburg makes an appearance as a litigator in becoming Justice Blackmun. I haven't revisited it, but I feel like I vaguely remember that he's kind of critical of her, right, in his notes. He talks about the ribbon in her hair. Right. Yeah. So 1970s.

Oh, my God. I will say I also remember the passages about his evolution on the death penalty, right? He came to renounce the death penalty and wrote this quite beautiful, long opinion that contained this very famous line that from this day forward, no longer shall I tinker with the machinery of death. And so and that I think is part of although not the only thing that sort of drives him and Berger apart. But yeah, it's, you know, if this book is close to 15 years old at this point, and it's still just like a total classic in the genre. Okay, one more recent and, you know, slightly different because this is an autobiography is Justice Sotomayor's My Beloved World, which I think she published in 2011. So this is a memoir of the justice's life and her career right up to her appointment to the bench. So if you're looking

for, you know, stuff about her time or early time in the Supreme Court Court or even the lower court, this is not that book, right? She's going to have to write another memoir. This is largely about her childhood and her college and law school experience. And it's just a beautifully written book. I recommend it to students. It is so lyrical. Yeah, it is. It's beautiful. Yeah. Yeah. No, like it's gorgeous. And it also, we talked about this, I think, a little bit in an earlier episode, but she just like is a remarkable, remarkable young girl. You know, she talks about she's diagnosed with diabetes at a young age. I remember the passages where she describes learning to inject herself with insulin because there's not really anyone else to do it when she's like eight or nine years old. And she's just an incredibly impressive person from a very young age. And she talks really honestly about some of the challenges of going to this elite places, she was an incredibly successful student. But it wasn't as though she waltzed in and felt like she fit in or felt like she would excel. And it took a lot of work and mentorship and companionship, particularly from other students of color and first-generation students who were at Princeton with her.

But they were hard experiences, and she does not make any bones about that. So I like to pair My Beloved World with Justice Thomas' autobiography, My Grandfather's Son, which he wrote in 2007. And like Justice Sotomayor's memoir, this memoir is also disarmingly frank. It spans Justice Thomas' life from the present, 2007, beginning with his early childhood in the Deep South, the point where his mother, who's no longer able to take care of her children because her partners abandoned her, decides to send Clarence Thomas and his brother to live with her father and stepmother. So his grandfather raises him, hence the title of the book. And it's a really interesting read because it's just like

Justice Sotomayor's in that it is punctuated by these moments of challenge and poverty, and then this kind of family that swoops in to sort of save these children and obviously love them. But the way that love is shown and experienced is so radically different in the two books. Like, you know, Justice Sotomayor is very clearly loved and knows it. And Justice Thomas is also equally frank. His grandfather's love was flinty and hidden and cloaked in a way. He actually showed his love by being demanding. And I think if you think about these two books, it's not necessarily explicitly detailing their jurisprudential philosophies. It is implicit here. And, I mean, to be clear, Justice Thomas is also explicit about certain things in this book.

He talks a lot about his confirmation battle. And it is very clear that he's still incredibly angry about it. But if you want a book that sort of gives you a sort of psychological glimpse into why Justice Thomas is the way he is and how he thinks, I think this is a really good starting place. And then there are obviously lots of biographies of justices. So one that I've really liked in recent years is called Sisters-in-Law by Linda Hirschman. This was published a few years ago. And this is like a joint biography of Justices O'Connor and Ginsburg. So it kind of weaves together the relationship between the first two women on the court. And it's a sort of a biography of each of them. But so it's not, you know, it's not like a Blackmunberger story. They're

actually pretty close, though very, very different, both personally and jurisprudentially. And I feel like I maybe didn't learn tons about them individually because I'd read a good amount about them, but I did learn a ton about their relationship, which I hadn't known much about. And that one goes a bit deeper on some of the jurisprudence than some of these biographies do, and I really like the book for that reason. So in the same vein, I want us to talk a little bit about John Biskupuk's book from last year, The Chief, The Life and Turbulent Times of Chief Justice John Roberts from 2018. Joan Biskupic has known Chief Justice Roberts for more than 20 years.

And to write this book, she sat down to do seven interviews with him, a total of about 20 hours for this book. And it traces John Roberts' upbringing in Indiana, his experiences in college and in law school, his work in the Reagan administration and private practice, and then the two Bush administrations, and then eventually his appointment to the Supreme Court. There is a lot of discussion of the jurisprudence, his jurisprudential philosophy, his work in the conservative legal movement before being appointed to the bench, and then, of course, lots of discussion about his switch in time in the Obamacare decision.

And so this is a really sort of timely book. There's a lot of attention on the chief justice and his predilections as a conservative, but also the way in which his understanding of himself as chief justice, as a steward of the court's institutional legacy, at times can temper and maybe mute some of his ideological leanings. And she's very good at dealing with that. So I think this is a great one and very topical. Yeah, those themes that you mentioned at the end are obviously going to be huge structuring themes in the next couple of terms in the court. Okay, those themes that you mentioned at the end are obviously going to be huge structuring themes in the next couple of terms in the court. Okay, so there's a new,

I actually don't know if it's been published yet or if it's just out in galleys. It's got published this week. Did it, the Corey Robbins? Oh, really? Okay, so there's this new book by Corey Robbins, The Enigma of Clarence Thomas. Okay, right, so it's just out now.

So I have, like I have a galley, so I didn't know it had been published, but I actually have not read it yet or even started, although I plan to. You have started, have you read some of it? I've read about three chapters. I just started it a couple nights ago. I actually, again, I think my reading of My Grandfather's Son is probably informed by the first three chapters of reading The Enigma of Clarence Thomas. But I think this is also a really excellent read of a sphinx-like justice who is not always easy to decipher.

And Rob, we should say, is a political scientist or historian? I think he's a historian. He's a political scientist. But either he's sort of a very astute chronicler of modern conservatism. And so I very much look forward to reading that book. And we felt like we couldn't leave this segment without at least giving a quick shout out to Irin Carmon and Shaina Nisnik. I'm sorry, Shaina. I don't actually know how to pronounce your last name.

I think it's Nisnik. Is it Nisnik? Okay, cool. Yeah. The Notorious RBG, The Life and Times of Ruth Bader Ginsburg, which came out a couple of years ago, was initially inspired by the Tumblr, the Notorious RBG that I think Shaina created. And it's a great book. You know, it's like a coffee table book, right? So it's like, it's big, it's full of pictures. It's fun to read. But it is also, you know, rigorous and excellent on the substance, right? Like we're law

professors, we read this stuff with a critical eye. Like I have not found a single thing to object to in that book. And it's just like a delight to read. It's a great gift too. Well, it's also a great gift for young girls because there's a young reader's version, just as there's a young reader's version of Justice Sotomayor's memoir. So if you have younger readers who are interested in the Supreme Court, those are two terrific books that you can offer them as well. The Notorious RBG and My Beloved World also in a form that would be accessible to younger readers.

I will say my oldest child asked me the other day why there aren't any books for young readers about Justice Kagan. So she's upset. There's actually a lot of, there's like, you know, a cottage industry in books that are either about or at least, you know, mention in conjunction with other female trailblazers, Justice Ginsburg, Justice Sotomayor, Justice O'Connor. But Justice Kagan hasn't shown up at all. And she is offended. So if anybody wants to put together a children's book about Justice Kagan, my kid at least would buy it. Well, she hasn't had a lot of books written about her at all, although I do think there is a New Yorker profile that might be in the works about her. But I haven't seen a lot of writing about her. So I think, you know, obviously,

we hope that there is something because we plan on having this segment again, and we'd love to cover Justice Kagan. Sounds good. Okay, so there are obviously lots more books to cover. And again, maybe we will make this a little bit recurring. Just some things that we'll be watching in the first couple of weeks of the court's term. So on Monday, October 7th, the court officially begins its 2019 term. The court is not saving the big stuff for later. Right. So the October sitting features oral arguments in some very high profile cases. This is not eat your spinach. It's eat dessert first. Totally. I mean, it's yes. Yes. I basically think the whole I think that the Puerto Rico case I'll talk about is like is dessert and spinach. You know, it's like it's a main course kind of thing. Right. Like it's it's meaty, but I think really interesting. But, yeah, we have to wait a little bit just mention, which is that on Tuesday, October 8th, is the day that the court will hear the trio of cases regarding Title VII's prohibitions on sex discrimination, whether they extend to sexual orientation and gender identity discrimination.

We talked, obviously, a good deal about these cases in our last episode. But we actually just wanted to mention that the hearing list, so the list of who will be arguing those cases, are now out. So we know who's going to be arguing. And Pam Carlin will be arguing on behalf of the sexual orientation discrimination plaintiffs. And she teaches at Stanford Law School. And she's a phenomenal advocate. She's just like – I've seen her argue a bunch of times. I remember once she was arguing a case and Justice Souter was on the bench at the time.

And he asked her a question. And she just kind of like asked him a question, like a hypo. She asked – I've never seen an a bunch of times. I remember once she was arguing a case and Justice Souter was on the bench at the time and he asked her a question and she just kind of like asked him a question like a hypo. She asked him. I've never seen an advocate do that before. And he like answered it. She just like. Skull is in session Justice Souter. And he just like gave her an answer. He got cold calls.

And you know but like she could do it. And she's yeah. So she's great. And I am very excited. I'm going to be at the court on Tuesday. So I'm very excited to see her argue. There is a lawyer named John Bursch, who was the Michigan Solicitor General. He argued in defense of Michigan's denial of recognition in Obergefell. So he's back. And Noel Francisco, as we talked about last week, the Solicitor General,

will be arguing on behalf of the federal government also in defense of these employers and of the position that Title VII doesn't extend to discrimination on the basis of sexual orientation or gender identity. David Cole, who runs the ACLU, I guess he must be the legal director, I think, is arguing on behalf of Amy Stevens, the gender identity discrimination plaintiff. These are, you know, very obviously hugely important issues, as we talked about last week. Very, very good lawyers will be arguing them. I'm wondering, so I was in the court for Obergefell, and there was a major disruption in the middle of the argument. There was a protester who got up and started shouting in the courtroom, which is extremely rare. And, you know, I don't know. We'll see. Jamie's going to be there. I'll be there. We will definitely report back on the sort of tenor of oral arguments. I'll be really watching, you know, particularly the new members

of the court, particularly Justices Gorsuch and Kavanaugh. That sounds great. There are still some other issues going on that we did not get a chance to talk about in our preview episode, but the court will take them up on the first Monday in October, the first day of the October sitting. There are a couple of really important criminal justice cases. And then in the second week of the sitting, there are a couple of consolidated cases involving Puerto Rico. So let me first start with the criminal justice cases that will be heard on October 7th. The first one is Collar v. Kansas. This is a case that considers whether a state can constitutionally eliminate the defense of insanity to criminal charges, and Kansas has done this. The issue presents both questions about the Due Process Clause and the Eighth Amendment and whether these two constitutional provisions serve as limits on the state in the defining of criminal

offenses and criminal defenses. So here's the factual backdrop. Since 2007, Kansas has by statute allowed a defense to criminal charges where the defendant, quote unquote, lacks a culpable mental state. However, the state also provides that a mental disease or defect is not otherwise a defense. So it basically abolishes the insanity defense but allows the presentation of evidence that would go to show the absence of mens rea to serve as a defense. And here, the petitioner, James Collar, who was convicted of the murder of his ex-wife, his two teenage daughters, and their great-grandmother and was sentenced to death for that crime, argues that so long as the crime is committed intentionally, even if because of mental impairment, he can still be convicted, and this violates the Constitution because it doesn't matter if he doesn't know that what he's doing is wrong because of a mental impairment.

All that matters under the state's formulation is that he intended to commit the crime. And so this case has sparked a lot of really interesting debates. It's a bigger case, I think, than it seems. One, because there is surprisingly little case law on the Constitution limits, how legislatures can define crimes and defenses. So there's not a lot. I mean, there's the void for vagueness doctrine, but not a broad doctrine about constitutional limits on the definition of crime. So this clearly implicates that, whether or not Kansas can, consistent with the Due Process Clause, consistent with the Eighth Amendment, simply take out the insanity defense, which has been a huge part of the Anglo-American criminal

justice tradition. As Berkeley law professor Oren Kerr has explained on Twitter, the case is really interesting because it implicates a lot of fundamental questions in substantive criminal law. Like, what is the framework for how you evaluate what defenses are constitutionally required, what the substantive criminal law requires? And so this is all to say that this case is getting a lot of attention. The United States has filed an amicus brief here, which sides with Kansas, arguing that the Constitution does not deny the states

the ability to decide for themselves how mental states should be accommodated in criminal law. But there is an equally vociferous cadre of amici who are siding here with the petitioner, who argue that there is a long tradition of allowing for the insanity defense. The idea of punishing someone who is mentally impaired by virtue of insanity or other incapacity goes against the American and Anglo-American common law tradition.

So there's a lot in here. If you are a 1L student taking criminal law, let me recommend to you the amicus brief filed by the professors of philosophy, law, and jurisprudence. This is the brief written by Eugene Fidel. It is a terrific brief and a great primer on the differences between excuse defenses and justification defenses, which are often confounding in 10 criminal law. It's a great explanation there and also a great explanation of how defenses based on mental incapacity can serve both utilitarian and retributivist ends. So a good sidebar for those of you struggling with criminal law or just wanting a little extra help there. In addition to Collar, there's another criminal justice case that's also getting a lot of attention. This is Ramos v. Louisiana. And in this case, the court will consider whether the Sixth Amendment's unanimous verdict requirement for federal criminal jury trials also applies to the states under the

Fourteenth Amendment's incorporation doctrine. So if you don't know what the incorporation doctrine is, let me give it to you in a nutshell. When the Constitution was originally enacted as a condition of ratification, the framers had to also include a bill of rights. So the first 10 amendments are offered up to be added to the Constitution at the time the Constitution itself is being ratified. So these first 10 amendments obviously apply to the federal government. The Constitution, as originally written, is about limits on the federal government's power. The question then is what happens with the 14th Amendment, which is ratified after the Civil War and is intended to limit the power of the states. And so the incorporation doctrine posits that the 14th Amendment to the Constitution incorporates all of the provisions of the first eight amendments,

so everything but the 9th and 10th Amendments, to the states as well. So they not only apply to the federal government, they are also incorporated through the 14th Amendment to apply to the states. And so the question here is whether Louisiana, which at the time was one of two states that allowed a criminal conviction after a non-unanimous jury verdict, whether that was permissible. To be clear, in 2018, after the petitioner here was convicted on a non-unanimous verdict, Louisiana switched and went to unanimous verdict. So there's now only one state, Oregon, that continues to have criminal convictions on non-unanimous jury verdicts. The question here is whether that can continue to happen, whether a conviction which is the result of a non-unanimous jury decision

can actually stand. And so here, the petitioner actually has a lot of support from some really important quarters. There are a number of criminal law professors who have filed briefs here who argue that the unanimity requirement that most states and the federal government adhere to is a check on prosecutors who will have to think twice about bringing flimsy or questionable cases. It also ensures that the verdict is the product of a deeply deliberative process requiring unanimity. And unanimity also ensures that the public can have more confidence in verdicts and the reliability and fairness of the criminal justice system. So again, unanimity serves all of these purposes. But the NAACP Legal Defense Fund's brief in this case on behalf of the

petitioner gives a little more local color, so to speak. And the NAACP Legal Defense Fund explains the provenance of Louisiana's rule that allowed for non-unanimous jury verdicts. And they say that the state enacted this rule once it had to allow African Americans to serve as jurors, and that it did so because it wanted to make it easier for white jurors to convict black defendants. So all of this has been really relevant to the court. This history and provenance of racial discrimination in the criminal justice system was a big part of Justice Kavanaugh's decision and opinion in the Flowers case last term. And it seems that it is relevant here as well. As LDF concludes, up until 2018, when Louisianans voted to remove the non-unanimous jury provision from their constitution, black defendants were more likely to be convicted by non-unanimous juries

and black jurors were more likely than white jurors to be in the dissent. So this is a really, really interesting case. And if Tims v. Indiana, which was heard last term and incorporated the Eighth Amendment's excessive fines clause against the states as any indication, we may see a more complete incorporation of these Bill of Rights provisions after this case as well. Yeah, it does feel like that's the direction that the court has been moving in. So I think that's, we're not really making predictions, but I feel like that's likely how this one comes out. No, I think this one's a clear, I think this one's an easy prediction.

Yeah. Okay, so let's talk about another group of cases. So these are scheduled for the second week of the October sitting. So October 15th will be this argument. And this is a series of cases that deal with Puerto Rico, and in particular, whether the appointments clause governs the appointments of members of the Financial Oversight and Management Board of Puerto Rico. So let me break all of that down a little bit. So these cases were granted back in June. And the backstory is that in 2016, Congress passed a statute called the Puerto Rico Oversight, Management, and Economic Stability Act. The acronym is PROMESA. And it passed this law in response to a financial crisis in Puerto Rico. So this crisis had been growing for some years, but it reached a point of genuine emergency in 2016. There's an announcement that Puerto Rico is going to default on its public debt obligations to the tune of tens of billions of dollars. So PROMESA establishes this Financial Oversight and Management Board basically to oversee finances and restructuring of all of this debt in bankruptcy-type proceedings. And the board also has some other powers,

investigative powers, things like that. Okay, so there are seven members of the board. They get appointed by the president. Six of them, the president has to choose from a list compiled by congressional leadership. And one, he gets to appoint in his sole discretion. So long as the president stays within the list that Congress gives to him, there's no Senate confirmation. And that, in fact, is what happened here. So President Obama appointed all seven of the board's members without any involvement by the Senate. And the board then got to work, right? So it's adjusting and restructuring Puerto Rico's bond debt. And that prompted a challenge to the board structure from several of its creditors. Okay, so they are basically arguing that the board

in its structure is unconstitutional, that its members have to be Senate confirmed because they are principal officers under the Appointments Clause of the Constitution, which basically says that principal officers must be appointed by the president, confirmed by the Senate. These folks definitely weren't. The board says no. The officers, the board's members are not officers or principal officers under the Constitution. These are territorial officers. And Congress can actually of and make all needful rules and regulations respecting the territory of the United States, basically. And so that's what the board is arguing that this statute was enacted pursuant to. And thus, their appointment doesn'tant to the Constitution's actions. So basically, because they had taken all of these steps, and because so many parties had relied in good faith on their authority to take all of those steps, it would not invalidate these actions in ways that

would have resulted in catastrophic harm to many, many thousands or more of third parties who relied upon the authority of the board to act as it did. So those are the questions before the court. What are these officers? Are these principal officers of the United States? And if they are, might their actions nevertheless stand because of the de facto officer doctrine? So can I ask a question? Yeah. Obviously, these cases are high profile because they occur against the backdrop of the Puerto Rican debt crisis and then the exacerbating conditions of Hurricane Maria.

But this isn't just about Puerto Rico, right? This has bigger implications about independent agencies. At least that's what I'm thinking. I mean, am I off base here? I mean, I I off base here? I mean, I think that it's a little bit particular because of the location in a territory. So there are things that are somewhat specific. But I think that, no, your general intuition, I think, is totally right, which is I think there is this like pragmatic dimension of this de facto officer doctrine that just says that, you know, even if, you know, sometimes there's like kind of harmless

error, right? If maybe these are, as technical matter individuals who should have been appointed pursuant to this presidential appointment Senate confirmation procedure. But it would do such untold damage to Puerto Rico and its people to undo all of the work that this board has done, that we're not going to do that. And I think that there is that the strain that you see emerging, particularly in the newest members of the court, and particularly Justice Gorsuch, but I think this is true about Justice Kavanaugh as well, is this incredibly formalistic sort of view of the Constitution and agencies in particular. And that's kind of what underlies, I think, this kind of this sort of new interest in reviving the non-delegation doctrine. So agencies do all kinds of things. You know, Gorsuch thinks, and you know, I think he's sort of the most prominent expositor of this view on the court right now, but that he thinks that much of what agencies are

doing is legislative and thus only Congress can do. And if in fact, it's the case that Congress just doesn't have the capacity to do a lot of the regulatory work that agencies have come to do, sort of what that means for sort of regulation of kind of everything. I think a really formalistic conception of the separation of powers would sort of say, like, that's not really our problem, right? Our problem is to enforce what the Constitution sets forth and sort of come what may. And so I do think that that and then I think there's kind of a pragmatic response, which is, you know, it's not. Yes, everything. Things are very different now than the framers could possibly have imagined. And maybe it's true that some of the things that agencies do look kind of legislative as the framers imagine those categories. But in some ways, so what? Because what is the alternative? Literally, Congress does not have the capacity to do things like decide how many parts per million of various kinds of be done. And I think the question is, does that matter, right? Like, do those kinds of functional considerations have any role in

thinking about kind of a separation of powers? First of all, I'm not even sort of suggesting that it's right that these are principal officers and thus should be subject to Senate advice and consent. But even if they were, right, this question is, should it matter what consequences might flow from such a conclusion? So yes, I think you're totally right that this case is conceptually related to some of the kind of dynamics around the administrative state that we've seen emerge in this first kind of Gorsuch and Kavanaugh term. All right. So the first week and the second week are going to be completely lit. This is a really kind of barn burner of an opening for the court. There are lots of really meaty cases here,

two really important criminal justice cases, all of these consolidated Puerto Rico cases, and then on top of it, the Title VII cases. What do you do next? How do you follow up an October sitting like this one? Maybe there's some emergency motion that arises in conjunction with access to documents for impeachment purposes, and that gets before the court really fast. I suppose you could top October that way. I just think this is going to be – this is just going to be I think a barn burner of a term. I mean if this is how we start, I don't even want to know how we end. So I think there's a lot going on.

All right. So for the last segment today, we wanted to talk a little bit about court culture. And we wanted specifically to talk about one player in the ecosystem of the courthouse that a lot of people are really interested in. And that, of course, is the judicial clerk. And this is that magical time of year when the courts swing back into gear after a summer hiatus. And around the country, at all levels of the federal judiciary, and even in some state courts, recent law school graduates arrive with their shiny diplomas ready to begin work as law clerks. And indeed, some have actually already started their clerkships over the summer. So to prepare for this segment, we took to Twitter where we solicited questions from you, our listeners.

What do you want to know about clerking? And we were so surprised by the overwhelming number of responses and with questions and advice, all of which are available on our Twitter feed at strictscrutiny underscore. But it made clear to us that there's a lot of interest here. And we probably cannot cover all of that interest, but we're going to try and hit as many highlights as we can. So thank you for your questions. Thank you for giving us advice that you wanted to share and for your engagement on this. So Kate, why don't you start us off? How should we get started? Well, so people ask some very basic questions like, what is a law clerk? What does a law clerk do? So there's actually a kind of interesting historical evolution. Once upon a time, Supreme Court law clerks really were just like performed kind of clerical functions for the justices. They're much more like the kind of secretaries of today. But sometimes…

Like Bob Cratchit in A Christmas Carol. Totally. Carol. Just sitting on a stool. Yeah, just took dictation and like, yeah, and sort of kept ledgers and that kind of thing. And there are two pretty interesting books about the development of the Supreme Court law clerk as an institution. One is called Curtiers of the Marble Palace, and one is called Sorcerer's Apprentices. So if you're interested in the evolution of the kind of clerkship as an institution, check out those books. practicing law for, you know, usually a sort of small number of years to come work at their side and to assist them with preparing for all arguments, drafting opinions, and sort of everything else that judge does depending on the level at which he or she sits. So that's basically a law clerk. Well, what's a term clerk? Because we wanted to make the distinction between these

clerks that are only there for a short period of time versus clerks who are permanent. And there are some of those in the ecosystem as well. So can you distinguish between both of them? Yeah, sure. So, yeah, so the kind of clerk that I was just describing is sometimes also referred to as a term clerk or like a chambers clerk. There are also folks who work for longer periods and sometimes in a permanent capacity for a judge or justice. And those can be called permanent clerks or career clerks.

And Congress a few years back made it much more difficult for the federal judiciary to use, because of course, you're on the federal pay scale when you're a law clerk. And so I think the Congress is interested in cutting some costs because folks who stayed longer were entitled to much higher salaries. So they wanted these sort of high turnover, lower salary kinds of individuals filling these positions, but they grandfathered in people who are already in those roles. So there are definitely still some career clerks in the federal system, but no new ones. And then in the states, I think there are a lot of people who serve as, you know, longer term clerks, either permanent or for some extended period. But both Melissa and I, you and I clerked in the federal courts, and so we're going to be a little bit more familiar. But I have students, and I'm sure you do too, have clerked in the state courts. So we want to make sure to try to cover the state courts as well in this conversation. So one of the questions that we got over and over again,

and one of the questions that I get perennially in my role advising students about clerking is, why should I even do this? What is the value of a clerkship? And it's a really good question because if you're graduating from law school, you likely have a fair amount of educational debt before you, and you have the opportunity in some cases to either have your debt excused because you're taking advantage of loan repayment by going into public service, or alternatively, you're going into a law firm where you're actually going to earn enough of a salary that you might be able to pay these off. Being a law clerk kind of puts you a little bit betwixt and between because you typically make

more and are ineligible for most loan repayment programs, but you don't make the kind of salary you would make, obviously, at a law firm. So what is the value? And I think lots of people have different ideas about this, but I think the value of clerking is that you will see the legal system from a perspective that you will never, ever, ever again get while you are a law clerk. To be looking over the shoulder of a judge while she is deciding something or working with her colleagues to decide something is a vantage point that very few lawyers have. And the experience of that is so valuable. You learn so much in the year or two years that you clerk about how courts run, how decisions

are made, the deliberative process. And then in a more practical vein, you will become a better writer than you ever thought possible because you are literally writing something every single day and getting it marked up and getting it edited from your judge, from your chambers, from other chambers. I learned so much in the two years I clerked, and they were absolutely invaluable. And my husband is a partner at a law firm, and when he's staffing cases, he loves to get the law clerks because they know when things need to be filed, how things need to be filed. They know what good writing looks like and how to do it. And there's just a shorter on-ramp for them. So you'll be getting the kind of skills

that make you a valuable young lawyer in your firm or in public interest. I think it's a great experience. Yeah, I agree with everything you said. And I will add, it's not only the kind of intensive writing experience. I think it almost inevitably is, no matter kind of what the style that your judge uses to run the chambers might be, you're going to inevitably write a lot. But you also get to see a lot of lawyering in action. And, you know, depending on the level at which you sit, you could be seeing a lot of oral arguments. If you're on an appellate court, you could be seeing a lot of, you know, motion practice and the occasional trial if you're clerking for a trial judge. But you get a great sense of kind of what lawyering, what kinds of lawyering work, what kinds don't work, sort of

the kind of range of styles that lawyers bring, again, to both the written work and the kind of oral presentations in court. And very early on, you can start to get a sense of sort of who you would like to emulate and what kinds of qualities you can sort of try to adopt from various advocates that you see before you. So that, I think, is one additional set of benefits that the experience confers. And I think you also have, if you're lucky, the potential of a close mentor relationship, basically for your whole career, you know. So I think that if you take it seriously and you work really hard and then you sort of make an effort to stay in touch and to keep your judge apprised

of your professional and personal kind of moves after leaving the job. This is somebody who will be a real advocate for you professionally. And so, you know, you can sort of seek advice when you're at a career crossroads, or you can seek a recommendation if you're, you know, applying for something that would potentially benefit from a judge's recommendation, which is many things. And so there are those benefits as well. I also want to call out, for those of you who are wondering, what's the difference between clerking at various levels of the federal courts and the difference between a federal and state clerkship? So generally, in the federal courts, you can either clerk at a federal trial court,

the district court, or a federal appellate court, the circuit court, or you could go to the show, the Supreme Court, after doing one or both of those. The district court, which I did, I clerked for a terrific district court judge in the District of Connecticut, Stephan Underhill, who was such a mensch and was such a great judge, and I learned so much from him. I would literally take a bullet for him 12 times over. He was a terrific judge, but it was a great experience. You really saw the ecosystem of the courthouse at work, the journalists who covered the local beat, the U.S. attorneys who came in to argue, the local bar. You saw defendants and litigants up close,, you really got the human aspect of what it means to

have a case in federal court. It was a real difference from my appellate court clerkship, which was a little more monastic. I spent a lot of time with my co-clerks and the judge that year, and we interacted with other chambers. But it wasn't the same kind of contact with litigants. We only saw the litigants and very rarely at oral argument. We saw the advocates more often. So that's a big distinction. If you're someone who kind of thrives on a changing environment, the district court may be for you. If you're someone who wants a more contemplative experience, maybe the circuit court is what you're looking for. In terms of federal versus state clerkships, I want to be a really big advocate for state clerkships.

I think they are undersung and they are so fantastic, especially if you have the opportunity to clerk for a state court of last resort. And I have taught family law for a number of years. I never did a state court clerkship, but that is where so much family law gets decided. And it would have been so great for me to have actually seen that. State courts are where you see some really interesting substantive criminal law issues. You will see a lot of stuff about family law and all of these questions about state-level issues that just don't filter up to the federal courts in the same way. So do not overlook state

courts. They can be as active and interesting and as challenging, I think, as we expect the federal courts to be, sometimes more so. I totally agree. And so, Melissa, you and I both teach in New York City. And so we have both the New York Court of Appeals, which is the highest court in New York, and the New Jersey Supreme Court are both just full of excellent judges, I guess. I think there are justices in Jersey and judges in New York. It's confusing in New York because there are justices in the lower courts and judges on the highest court. But the jurists are like absolutely top quality.

And we've had a bunch of students clerk on both of those courts and had as good an experience or better than I think they would have had in the federal system. Do you remember when the marriage equality litigation was going on? It was all happening in state courts. I mean, if that was your thing and you were really interested in that, being in federal court was not really the place. Like you really wanted to be in one of those state courts. Well, early on, definitely. And even along the way, yes, there was a lot.

No, that's right. Yeah, hugely important issues. And again, lots of great people on the bench. So definitely think about if you were for whatever reason just focused on the federal system. Think about expanding to your search to include a state judge. like I have heard from multiple people that it is a fabulous clerkship. And because like it's, you know, a little far for many people, it's like, you know, it's not as though there are tens of thousands of applicants. So, you know, you can send an application in and have, you know, some shot of at least securing an interview. And the experience is apparently phenomenal. They have, you know, there's an appeal of right from the trial court to the Supreme Court, at least on some issues. So, you know, it's just a varied and fascinating docket. So, you know, think outside the box a little bit.

So I had a student who also clerked in Alaska, and she loved it. And one of the best pieces of advice I ever got when I was thinking about clerking was someone told me, just go. Like, you know, it's a one-year thing. It doesn't matter if you're not going to practice in Alaska. Just get this experience. Like, when are you ever going to have the chance to live somewhere like Alaska or, I don't know, the South, if you're from another part of the country? Try something new. You're going to get a great experience.

You're going to meet a really good judge. Just try it. There are lots of great clerkships everywhere. Yeah, and that was one of the questions that we got, which is, you know, if you are pretty sure you're unlikely to practice in a particular area, you know, is there any reason either to or not to clerk there? And so for the reasons Melissa identified, if you can write like if you have the freedom to up and move for a year, you don't have family obligations that keep you in a particular place or, you know, just kids in school in a particular place. You know, like there are obviously reasons that not everybody has geographic mobility. But if you are fortunate enough to have it, and you know, this is a time in your life in which you can live someplace you would never

live otherwise, go for it, right? You'll probably actually get a ton out of the experience. If you're, you know, in a city in which you already don't have a totally developed kind of social and kind of family network, you'll just really probably throw yourself into the work and have, you know, hopefully it'll be a good experience and a good judge. And most are. But I am a big proponent of if you can go live someplace random for a year, definitely do that. So, OK, we've convinced everyone that this is fantastic. Now the hard part comes. How do you apply? And right now we have, I will be really honest with our listeners, there is a clerkship application process, a plan that is in place. And I'm not sure it's fully functioning or functioning the way it's supposed

to. It's a little bit in disarray, but it has prescribed timelines for when you apply, when judges can begin reviewing applications, and when they can begin issuing invitations to interview and then when they can actually make offers. So this was implemented last year. So this current school year was the first, the summer before this current school year was the first year that it was in place. Do you think it's working, Kate? Well, so I, yeah, I want to do one of these disclaimers where I say definitely talk to, if you're a law student, definitely talk to your school career services, because my sense is that this is in flux, that there are some courts of appeals that have signed onto the plan that Melissa was just describing that constrain when you can apply and when judges can, you know, reach out to you and then interview you and hire you.

And some courts of appeals, I think, are just, it's the Wild West again. There have been a series of efforts to kind of standardize and routinize the timeline for law clerk hiring, and they just inevitably fall apart, right? Because judges don't like being told what they can and can't do, right? Well, so we should also say this hiring plan only applies to the federal courts, right? So state courts have their own timelines. And if you're interested in a state court, consult with your career services office or reach out to the office of the court itself to find out when they're accepting applications. This plan was to impose some guardrails on the whole federal clerkship process, which had become a little unwieldy, but continues to be unwieldy even in the face of this plan. And we heard from a number of professors

and administrative professionals who are working with students on clerkships at different schools. And many of them think that the hiring plan, depending on who follows it, can actually be a boon for certain judges who decide to stay out of it and not hire, and they sort of pluck off the best students. Some students may get clerkships well in advance of everyone else, which kind of destroys morale for those who are in the clerkship market. So it's not obvious that this plan is functioning the way that it's intended. I think one thing that could happen that would impose some real constraints here and get people to sign on to the hiring plan is if the Supremes decide they're not going to look

at any clerkship applications from students who come from judges who are not plan compliant. So if you are a member of the court and you listen to strict scrutiny, you have the power here to really make this plan work and impose some reasonable guardrails for students who are really looking for some structure in this process. Yes, it would be nice if sort of the guidance came from on high because they obviously do have the power to bring the lower court judges into line. So, you know, I think, though, the current state of affairs, which is like a little bit chaotic in terms of the timeline for law students, doesn't apply to graduates, right? So if you're a law school graduate, you're already

working at a law firm or in government and are thinking about clerking a bit later in your career, you actually have the advantage of not being constrained by this hiring cycle. You just need to send your materials in, again, consult with your law school career services. As far as I know, every law school career services office will continue to provide assistance even to graduates, not just to students. But that actually is, I think, a trend that we have seen really grow in the last decade or so. People who, you know, don't clerk right out of law school, go work for a little while, you know, two, three, four years, and then're a federal clerk at least. And so you start at a higher salary if you've been making at least private sector money when you come in as a law clerk. That won't be true. Or if you have any work experience. It doesn't have to be private, like big law experience.

Any kind of legal experience will boost you up on the GSA pay scale. Totally right. Yeah. Totally right. You know, in some ways, it's a little bit easier to make some of your, you know, sort of newbie mistakes because we all make them, trust me, when you're kind of in a lower stakes environment at a law firm than when you're working on an opinion. So there are certain advantages in taking this route, right? Law school, work for a couple of years, and then go try to clerk. So one of the trends that we're seeing, at least I'm seeing, as I advise students, is that more and more judges are asking for individuals who have work experience. So some of this may be market-driven. They want people who have worked before, and they also want people who have had another clerkship. And we could have a

whole separate discussion of this. I mean, I think it's sort of stacking the clerkships in this way limits the number of clerkships available to everyone. So, I mean, this is something I think judges need to think about seriously if they are serious about making these opportunities more widely available, which I think they should be. But a lot of people are doing that. And I have no preference as to the order. Some people do district court first, circuit court second, or vice versa. But that is a trend. Lots of people are doing it. But obviously, if a judge is asking for a clerkship already and you don't already have one, that makes it a lot harder to even get a clerkship in the first place. So lots to think about with that.

Are there any good reasons, Kate, not to clerk? We've talked about all the reasons you should do it. But are there some career paths where this is just irrelevant or superfluous? I think it's actually kind of useful no matter what you do. I guess if you truly don't want to be a lawyer, maybe don't clerk. What about if you're doing – what about transactional work? I think – I mean there is law in the mix. You're going to be working with statutes and regulations. I think understanding how judges approach those kinds of interpretive questions is useful no matter what kind of practice you end up in. But I also think if you truly don't want to do it, don't feel any compulsion. Like I think it's great and valuable no matter what. But if it doesn't appeal to you, there are lots of other ways to have a meaningful career in the law without ever clerking.

So one of the questions that we get, and I think this is a really important question, is that it seems like clerkships are sort of reserved for students who are at T15, top 15 schools. If you're not at one of those schools, are you out of the game? Like, what should you do? If you're a first-generation student and you don't have a kind of professional network that is populated by federal and state judges, what should you do about trying to hustle your way into one of these jobs? So first on the non-T15 question. So I teach at Cardozo, not a T15 school, and we get students in clerkships all the time, right? Not every student, not the majority of our students by any stretch. But we land – a lot of our students land excellent clerkships all the time.

I have a student who got a Second Circuit clerkship this week. We've had folks in the federal courts of appeals in a bunch of different federal circuits and lots of district court judges. And so, yeah, I think that it's a mistake to think that if you don't go to Harvard or Yale, no offense, Melissa, or, you know, some T15 school that you have no shot at a clerkship. Totally wrong. But I do think you sometimes have to cast a wider net. So I think thinking about not just federal courts, but state courts and even within the federal courts, thinking about not just courts of appeals and district courts, but magistrate judges, I think are great experiences. Bankruptcy judges, if you are thinking about practicing bankruptcy

law, all these folks hire law clerks. And we've had lots of graduates clerk and have great experiences with all those kinds of judges as well. So I think that maybe casting a wider net, applying to a lot, right? You don't have the luxury of applying to 10 or 15 or 20 judges. You have to put together a lot. But I think that if you – and being willing to sort of take a second or third bite at the apple if it doesn't happen at the first pass. I think that all of – if you're willing to do all of that, then I think you have a very good shot at getting a clerkship. All right. So assume you have a clerkship. If there was one thing you could tell your younger

self as you went off to clerk, what advice would you give yourself? So, you know, I mentioned this briefly over the summer when I talked about sort of wishing that I had found a way to get kind of my anxiety and nerves a little bit under control when I clerked, in particular for Justice Stevens. And I think that on Twitter response from Lucy Schwally, I thought actually crystallized and improved on the point that I was trying to make. But I think that actually my view is that if you're not a little terrified when you're clerking, or at least when you're starting off, you're doing it wrong. You know, the stakes for individual litigants are incredibly high. You are green, especially if you're just coming out of law school. And you know that. And so you know,

you don't have all the answers. And so I actually think it should be a little bit scary. So to me, it's sort of what you do with that. And I think that what Lucy said so well, is that I think part of the reason it feels scary, and you can feel a little bit adrift, is that you kind of, you feel like you don't deserve to be there. And in some ways, that's right, because no one deserves to be there, because it's a pretty random process. But you don't deserve to be there any less than anybody else deserves to be there. I think you just need to sort of say, look, I have all the threshold qualifications. It was luck and chance beyond that.

But that's also true of everybody else here. So we're all kind of figuring this out together. And I think that sort of realizing that, that you're in the same position as every other law clerk is comforting in a way. And then you just sort of, you know, you figure it out as you go. You get much better. You get much faster. And you can build in additional kind of consultative mechanisms with your co-clerks and with clerks in other chambers that I think really help give you an additional degree of confidence that the work that you're giving to your judge or justice is, you know, pretty good. It's not going to be perfect. It's not going gonna be perfect at first. It may not be perfect even in the end. But, you know, everyone makes mistakes and judges

are for the most part extremely understanding of that fact. So I think that that sort of trying to take the nerves down a bit using all these mechanisms is I think the thing that I would most tell, you know, people embarking on the clerkship path. So my advice is in more of the service vein. Like, I think this is a job where you have to understand yourself as being in the service of another person's professional career, not just your own. And so I think one of the most important pieces of advice I received was to anticipate my judge's needs. Like,

what's going to happen next? And what does she need in order to do her work? To always be thinking that question. Like, how can I get ahead of what she needs and have that available to her so she doesn't even have to ask for it? If you can master that in the clerkship, that will serve you so well in legal practice if you ever have a boss. It will also help you to train the people who in time will work for you to be really good in providing those services to you and to the people for whom you work. The other thing I think is really important is to remember that the clerkship is part of a broader courthouse ecosystem in which your judge operates and will continue to operate long after you are gone. Be nice to everyone, the people in your chambers, but also people outside of your chambers, the people that – who seem like their work is unobservable or undocumented. documented. So like, one of the greatest relationships I formed during my year on the district court in Connecticut was with Herbert, who was the Jamaican janitor who came

every day to chambers to pick up trash and was just so lovely and sweet. And whenever I went back to visit, I would see him and he would ask about my family and my kids. And I mean, he was as much a part of the chambers as my co-clerks and the secretaries and the courtroom deputy. And I think if you go into it like that, everyone makes that courthouse work. And there's not one person who's better than anyone else. All of them are needed to make it work. And your judge expects you to understand that too, because that's certainly how they view the ecosystem of the place that they work. Totally right. And I think, unfortunately, not every law clerk goes in with that orientation, right? So I had the same experience with Jean,

who operated one of the elevators in the Supreme Court. The Supreme Court elevators still have a human operate them. And she was wonderful. She retired a few years ago, but we caught up every time I would go back to the court. And I think it's an important thing to do while you're clerking and an important kind of life skill. So apparently that is how Justice Thomas operates. The elevator operators all love him. He's apparently known as being one of the warmest and most jovial justices. Everyone in that building loves him. He is genuinely unbelievably warm and kind interpersonally. I don't think people see.

I think it's one of the reasons it's unfortunate he never says anything on the bench because everyone's really shocked to hear that. But that's absolutely his reputation inside the building. I think we basically have to say, because we're out of time, we have a lot more questions that you all have sent to us and questions about things like interviewing for clerkships. I think we have to do this again, but not today. So, yes, this is a good place to end. We hope we've whetted your appetite.

And we can do this again at another time. We can have more Supreme Court book club reads. We can also do this again as well. We are so excited that you took the time to listen to us and that you wrote in and gave us your questions. We really appreciate you, the listeners, and we hope you Catherine, to Eddie Cooper for our music. And if you like the show, please subscribe and don't forget to rate it and give us a review. And if you want, buy some strict scrutiny swag, recommend it to others in your life, and we will be back soon. See you later.