The United States Supreme Court began its new term this past Monday.  And, perhaps the only individuals more eager than newly sworn-in Chief Justice John Roberts are the clerks who will assist him and the eight Associate Justices.

Clerking for a Supreme Court Justice is often referred to as one of the best jobs a young lawyer can have.  Being selected is an amazing accomplishment, but surviving the experience is another thing.  Recently, the Center for Individual Freedom’s Senior Vice President and Corporate Counsel Renee Giachino had an opportunity to interview attorney Erik Jaffe, who clerked for Justice Clarence Thomas.

What follows are excerpts from the interview for the program “Your Turn — Meeting Nonsense with Common Sense” that aired on WEBY 1330 AM, Northwest Florida’s Talk Radio.

GIACHINO:  My next guest is here to discuss with us how the Supreme Court makes its decisions.  We will talk first about how the Court decides which cases it will take, and we will go from there all the way to discussing how it is determined who will write the decision and when it will be issued.

There is no one better to discuss that with — well, maybe one of the Justices could offer us a little more information — than a former Supreme Court clerk.  That is who is joining us this afternoon.  I have had him on the program before and I welcome him back.  Please welcome Erik Jaffe.

He is a 1990 graduate of the Columbia University School of Law.  He clerked for Judge Douglas Ginsburg for the U.S. Court of Appeals for the District of Columbia Circuit.  He then spent a number of years at the law firm of Williams & Connolly in Washington, D.C., and he left there to clerk for U.S. Supreme Court Associate Justice Clarence Thomas.  He clerked for Justice Thomas from 1996 to 1997.  He has joined us to talk about what it is like to clerk for the Supreme Court and what happens behind the scenes — and maybe he can even pull out his glass ball and tell us something about some of the candidates who are being considered to replace Justice Sandra Day O’Connor.

Erik, thank you for joining us.

JAFFE:  You are welcome.  It is great to be on.

GIACHINO:  First, Erik, tell us what it is like to have clerked at the Court.  We know that it is a very sought after position and it is very difficult to get.  The best and the brightest are those who are afforded that opportunity.  But everybody thinks that once you get it, wow, what a wonderful opportunity and there is nothing like doing it.  I don’t think people really realize that it is 365 days of very, very long hours.  Am I right about that?

JAFFE:  Yes, the overwhelming experience — aside from the sort of “gee whiz” factor and the “oh, wow, I am actually sitting here” factor — is that once you get going it is sort of an overwhelming amount of work.  You are there for a year and expected to work very hard for that year.  The sense of responsibility and fear of mistake are really tremendous driving forces to get people to work to their personal limits.

GIACHINO:  Like most young lawyers you need to be paying the bills.  We know that many government jobs don’t pay a lot of money and there are other opportunities for better paying jobs.  Why is it that they only have clerkships for one year?  Wouldn’t it make sense to have two-year clerkships — I mean don’t you just have the opportunity to get your feet wet and then you head out the door?

JAFFE:  Some Justices in the past have had two year clerkships.  I think part of the reason is that because it is such a physically challenging job it would be extremely hard for a recent graduate to do that for more than a year.  Some have — some have taken on second clerkships in the past, but it is a tremendously difficult task.  The other thing is that the Justices like having fresh faces and fresh perspectives precisely because it is just about the end of the year when you are done getting comfortable with your job and you are likely getting just a little bit jaded, and they want to be constantly challenged by their clerks and constantly kept on their toes.  That is one of the benefits to all of the Justices is to have fresh faces each year.

GIACHINO:  Fresh meat so to speak.  I would think that by the end of the term you are finally getting up enough confidence to be able to question — well, do you ever question your Justice about a decision that they are going to make or something that is going to go into one of the decisions?

JAFFE:  I imagine that every chamber is a little different.  My impression from other clerks is that every Justice would encourage candor among their clerks.  So that while you might not question your Justice publicly, privately, while in chambers, you certainly state your peace and make your case and express that and everybody hashes it out.  That is sort of the way that the Justice gets to see arguments on both sides.  And then, of course, at the end of the day the Justice just decides what the answer is for that Justice.  But no, I did not get the sense that any of the Justices discouraged the dissenting voice within chambers because that is half the reason that you are there — to give them a complete picture of the issues so that they can then make a better decision.

GIACHINO:  I think these numbers are pretty accurate, Erik.  It seems that lately the Court has received about 8,000 petitions annually and it hears about 80 arguments or so each term, which works out to be one percent that are cert. worthy.  If you would please explain to us how the Justices and the clerks and anyone else involved determine whether or not a case will, in fact, be taken up by the Supreme Court?

JAFFE:  Well, there is actually a fairly well-developed process for deciding what cases get taken.  All of those 8,000 requests for the Supreme Court to hear a case come in over the year, and the first thing that typically happens to them is that they get doled out among most of the clerks.  Eight of the nine Justices participate in something called the “cert. pool” where they pool their resources together, all of their clerks together, and divide up all of those requests among the clerks.  So each week you may get three, four or five requests per clerk, and your job is to write a “pool memo.”  It is basically a memorandum that goes to eight of the nine Justices that expresses your opinion — summarizing the case, summarizing the facts, summarizing the arguments and then giving a recommendation as to whether it should or should not be taken or if it is too close to call.

And then from those pool memos and the petitions themselves, the Justices then read those and decide which of that week’s cases are worthy of being put on something called the “discuss list.”  Any Justice can request that a case go on the discuss list — it only takes one Justice to ask for it.  Once a case gets on that list it means that at least one person thinks that this case has a shot at being taken.  And then all of the Justices look at those cases with greater attention and assign an additional clerk to it to sort of investigate whether or not this is really an issue that the Court ought to take.  And then at the end of the week, when that case’s time comes up — basically two to three weeks from the day it walks in the door or rather the day when all of the briefs are actually in the door, to the day that they actually vote on it — and when they go to vote, they actually just talk about the cases on the discuss list.  If no one thought a case worthy of going on the discuss list, then that’s a deny.  And of the ones that make it to the discuss list, only a handful ever get taken.  So in any given week, there could be 10 cases or eight cases on the discuss list and maybe only one or two will get taken — if even that many.  It just sort of depends.

The biggest issues that they look for are a couple.  First and foremost, they look for something called “circuit splits” where different courts of appeal throughout the country have answered the same question in a different fashion.  And that is generally thought to be bad for the law to have sister courts in different geographic areas deciding the same question differently and thus making the outcome of a case depend upon where you happen to live.  And once a split is deep enough — say one circuit goes one way and three go another way — and the issues have sort of been fully aired, well, that is the type of case that the Court will look very seriously at in order to maintain some uniformity in the law.

Another way that a case might get taken or likely will be taken is when a court strikes down an act of Congress.  Striking down an act of Congress is considered to be a very serious thing by the Court.  If a lower court strikes down an act of Congress, the Supreme Court will take it very seriously and the Supreme Court will give it very serious consideration for taking it up.  Typically that comes at the request of the Solicitor General’s office.

And then finally, if a court strikes down a state law, once again it is considered a very serious step by a federal court and so the Supreme Court will give great seriousness to the consideration of those.

Those are sort of the three big ones.  There is an occasional other case that will get there for one reason or another.  Say, for example, the presidential election case back in 2000.  That was of such great national importance that it got taken up.

Death penalty cases will sometimes get taken up as they are considered a very serious issue.  Again, many of these are very serious issues, but if it is one that is confusing or has caused conflict among the circuit courts, the Court will look at that.

And then they take them.  Really it is 70 to 80 cases a year these days.  That is not to say that there are only 70 to 80 that are worthy of consideration, it is just that with limited resources and time you can’t take hundreds of cases because then you would do a lousy job on all of them.  Instead, they do a good job on a few and if an issue is really important and recurring then it will come back to you and they might take it in the next year.

GIACHINO:  In a minute I want to turn to what happens after cert. is granted and what role the clerks play with the different Justices in their chambers.  Before I do that, Erik, can we take a call?

JAFFE:  Sure, go ahead.

GIACHINO:  Go ahead, caller.

CALLER:  You mentioned that the Supreme Court interprets laws of Congress and laws of the state legislatures, but under the Constitution they are not given powers to do either one of those.  There is no jurisdiction given them between a state and its citizens.

JAFFE:  I suppose it is true that they don’t unless you read into it the judicial power as the Court did in Marbury v. Madison pretty much at the inception of the Court.  But I guess you’re right, there is nothing that says that the Court shall have the power to strike down a law.  There is something in the Constitution that says that the Court shall have the power to review the judgment of the courts.  They have the power to review the constitutionality of matters, so I suppose someone can infer from that that having decided something is unconstitutional and declared that it is such, unless that is going to be a pointless exercise, presumably that means that the law is invalid.

CALLER:  In Article III, there is no jurisdiction given them between a state and their own citizen — like abortion.

JAFFE:  I beg to differ.

CALLER:  In Article III?  Maybe you can tell me where?

JAFFE:  There is not anything that says that they cannot.  There certainly is also the 11th Amendment, and that is a different matter.

CALLER:  That takes away from other powers that they were not even given between a state and its citizen.  Any power not given the federal government under the Constitution is reserved for the states.

JAFFE:  Given that they have the power to review the judgments of state courts, it is difficult to imagine how that power could be exercised if one could not review issues between a state and its citizens.  Likewise, things like habeas corpus powers — which they clearly have — for writs of habeas corpus would typically be between states and their citizens because, more often than not, a state jails its own citizens as opposed to certain outsiders.  So there certainly is plenty in the Constitution that shows that the Court can review cases between a state and its own citizens.  Now you are right that it may not apply always.  But there is ample evidence that they can at least do it in a variety of cases.

CALLER:  Show me in the Constitution.  There is nothing in the Constitution that says that they have that jurisdiction.

JAFFE:  As I said, one would have to interpret it as a function of the words “the judicial power and the power to review decisions coming from state courts.”

CALLER:  Nothing says that they have that power.

JAFFE:  There is nothing that says that they get to have an office and chambers either, but we infer that as well.

GIACHINO:  Well, that is an interesting debate.  Thank you, caller, we appreciate the call.  We want to turn now to what happens after cert. is granted and how a case winds its way through the court system until decision day.

We have another call on the line.  Go ahead, caller.

JAFFE:  Before he does that, let me just clear up one thing from the last call because I now have my handy-dandy pocket Constitution out.  Article III, Section 2 starts off with, “The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority.”  And I think that it is fair to infer that — all cases so long as they arise under the Constitution or the laws of the United States — it does not matter who is bringing it against whom.

GIACHINO:  Great clarification.  Go ahead, caller, it’s your turn.

CALLER:  Thank you.  I will try to make this quick because I know that you have other callers and you have more questions.  I do appreciate Erik being on board with us.  A couple of quick things and you may not want to answer one or two of these and I understand.

First, who writes the Court’s slip opinions which are what the news media usually uses when they talk about a case?

JAFFE:  The slip opinion is the same as the regular opinion.  The only reason it is called a slip opinion is because it is like the page proofs of a book, if you want to think of it that way.  It comes out the same day that the Court announces an opinion, but they call it a “slip opinion” because they want to leave options open to change typos and things like that.  In essence, that opinion is the same as a final opinion, and it is written by whichever Justice has his or her name as having written it.

CALLER:  Would it be a fair statement to say that the clerks have — well, I hold the clerks in high esteem — would it be a fair statement to say that the clerks have a lot of influence as to what is written and whether a case is going to make it to a cert. grant or not?  Do the clerks’ opinions have some of a bearing on that?

JAFFE:  Certainly the clerks have an influence on the process, but I think it is important not to get too exaggerated a view of that.  So starting with the actual opinions themselves, certainly in most chambers the clerks play a role in researching the cases to support different arguments and researching the arguments of the parties and the opinions below and very often drafting up parts of the opinion.  Very often they may even draw up a draft of the opinion depending upon their certain Justice’s instructions.  But it would be a big mistake in any chambers to think that the Justice did not have the controlling hand over what ultimately went out the door.

So the Justices, of course, review those opinions.  They can often be brutal in their editing if they don’t like what is written, or, if it does not conform to the instructions that they gave, it will be changed at the drop of a hat so that it does conform to what the Justice thinks and how the Justice wants it expressed.

That is true in every chambers.  So when the clerks take the first stab at it, everything goes through multiple layers of editing and does not leave anyone’s chamber without the strong and controlling hand of the Justice making sure that it is saying what that particular Justice and the other members of the Court joining that opinion want it to say.

CALLER:  You may not want to answer this, but how much do the clerks talk amongst themselves, especially when we have a hot issue up there and there is a lot of controversy, how much do they talk out of chambers, and how does it compare in your time up there to how it was in the ’60s and ’70s as far as how the clerks would interact?

JAFFE:   I could not compare it to the ’60s and ’70s just simply because I have not spoken to enough clerks who clerked that long ago to really know what it was like.  But certainly when I was clerking — and I am sure that it is the same way now — the clerks speak amongst themselves quite a bit.  They do not speak for their Justices, but they certainly go out at lunch or over coffee and argue about their cases.  It is one of the ways that you try to help yourself decide what the right answer is.  You discuss it with other people and argue with other people and bring that educational experience back to your own chambers to help your Justice make a decision.

The clerks, of course, do not go out and speak on behalf of chambers — that is done by the Justices.  But as for casual conversations and arguing about different cases, that happens all of the time.

GIACHINO:  Erik, as for things in the chambers, once a case has made it to the cert. granted list, does each Justice then assign one or more than one clerk to be in charge of that case?  I mean, in any given week there are multiple cases that are going to have hearings and so it seems almost impossible to be able to follow each case that comes before the Supreme Court.

JAFFE:  Do you mean each case that is actually taken?

GIACHINO:  Yes, each case that is actually taken.  Will each clerk work on each case or within the chambers will the cases be divided up?

JAFFE:  Different chambers do it different ways.  Some chambers will just divide the cases and so if there are 80 cases and four clerks per chamber, each clerk will have initial primary responsibility for working up a bench memo for 20 cases.  Some chambers will have a clerk with primary responsibility but then have all of the clerks review the bench memo and then it is a collective process where all of the clerks talk about all of the cases even though you may not have been the lead person on that case.  But you are right, if each clerk had to work up 80 cases that would be a tremendous workload and very difficult to do.

GIACHINO:  So do all of the clerks attend all of the oral arguments or do you typically only attend the oral arguments for the cases that you are going to write the bench memo for — wait, you write the bench memo before the oral argument, right?

JAFFE:  Right, you write the bench memo before the oral argument.  The way that it typically works is that early in the year clerks tend to show up for as many cases as they can because it is very exciting and you want to see as many as you can.  Then somewhere in between the middle and the end of the year you start to get overwhelmed and you start to miss a few of the ones that you cannot afford to take the time away from working on your own cases.  But you try.  I probably got to 80 or 85 percent of the oral arguments my year even though I had responsibility for only a quarter of those.

GIACHINO:  How often do the Justices take questions from their clerks that they are going to ask at the oral arguments?

JAFFE:  My sense is that all of the Justices have a mechanism where all of the clerks can suggest questions to them.  Whether or not the Justice then turns around and asks that question is, of course, entirely up to the Justice.  My sense is that clerks are generally responsible for having some recommendations of things that would help advance the ball based on their discussions with the Justice.

GIACHINO:  I was just handed a question from a caller.  The caller wants to know if there are records of Court decisions or interpretations of constitutional guidelines available for historical comparisons.  Are their archives of historical records where Courts have made decisions where she could go back and compare?

JAFFE:  Well, there certainly are the written opinions of the Court — which I guess really are the only true sources of knowing what the Court’s interpretation of the Constitution really is.  And those are kept in pretty much every law library, going back to the first opinions of the Court.  And most public libraries will have a copy of the U.S. Reports, and those can frequently be obtained on-line as well — many of the most recent ones on the Supreme Court’s own website.  And the historical ones, I believe that if you just search that on the Web there are many law schools that make that available.

There are also, for less official interpretations of individual Justices, you have in the National Archives the official papers of each Justice.  So after each Justice retires and eventually passes away, after a certain amount of time the papers of that Justice become available to the public — their notes, their memos and things like that.  We have had Thurgood Marshall’s papers come up and Justice Blackmun’s papers come up, and those provide some sort of behind the scenes insight into what was motivating that Justice and perhaps some of their colleagues.

GIACHINO:  Erik, thank you for joining us.  I would like to invite you back to talk with us about Sandra Day O’Connor’s retirement.  Can you join us again to talk to about that?

JAFFE:  I certainly can.  I would be happy to.

GIACHINO:  Thanks again, Erik Jaffe, for talking with us about the U.S. Supreme Court.

JAFFE:  Thank you.

The follow-up interview with Erik Jaffe will be included in next week’s Lunchtime Liberty Update.