Professor Rory K. Little · July 2020
88 Geo. Wash. L. Rev. Arguendo 83
In 1932, Justice Oliver Wendell Holmes Jr. retired but continued to employ Mark DeWolfe Howe as his law clerk. A tradition of retired U.S. Supreme Court Justices employing a law clerk has continued, apparently intermittently, since that time. At some point, this practice grew to embrace a tradition of “loaning” the retired Justice’s clerk to also work with the chambers of one or more active Justices. There is apparently no formal list of retired-Justice law clerks; some initial digging suggests that over 110 persons have served as law clerks to retired Justices since 1932. Depending on their health and interests, Justices may carry a variety of work while in retirement. Such work can include sitting by designation on the lower federal courts—usually one of the Circuit Courts of Appeals—delivering lectures, writing books and law review articles, and other significant legal work. But that work is not always sufficient to fully occupy a retired Justice’s clerk. So the tradition has become for the “retired-Justice clerk” to be “loaned” to the chambers of active Justices and to do “merits work” for that Justice.
As far as I know, the usual practice has been for a “retired Justice clerk” to work with only one active Justice’s chambers for the Term that they are there. In my case, however, whether due to fortuity or other factors, after I began working for retired Justice Stewart for the 1984–1985 Term (“1984 Term”), I also worked with the chambers of four different active Justices. So far as I know, this was unique, or so a number of knowledgeable people have suggested. So, almost 35 years later, I have been encouraged to write up my experience.
Professor Little’s Essay was written for the Clerks at 100 Symposium, hosted by the National Constitution Center and The George Washington Law Review on October 4, 2019.
