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14 Judges J. 20 (1975)
Why an Oath for Law Clerks

handle is hein.journals/judgej14 and id is 20 raw text is: WHY AN OATH FOR LAW CLERKS? By JUSTICE WILLIAM H. ERICKSON Colorado Supreme Court The place of justice is a hallowed place; and therefore not only the bench, but the footpace and precincts and pur- prise thereof ought to be preserved without scandal and corruption. --Sir Francis Bacon 1561-1626 Essays, Of Judicature The beginning of the institution of the law clerk is usually attributed to Justice Horace Gray, who began the practice of employing an honor graduate of the Harvard Law School at his own expense as secretary while serving as Chief Justice of the Massachusetts Supreme Judicial Court. He continued the practice when he was ap- pointed to the United States Supreme Court in 1882. How- ever, Supreme Court clerkships were not formally provided by Congress until the Sundry Civil Justice W. H. Erickson Act of August 4, 1886. The Act provided for stenographic clerk for the Chief Justice and for each associate justice of the Supreme Court, at not ex- ceeding one thousand six hundred dollars each. 24 Stat. 254 (1886). Provision for law clerks for the United States circuit court judges was not made until 1930, 46 Stat. 774, and for the United States district court judges in 1936, 49 Stat. 1140. By 1888 each of the nine United States Supreme Court Justices employed one law clerk. In that year, a question about the status of the clerks was raised. The clerks' salary certificates were withheld by the Department of Treasury with the explanation that the auditor's office should be informed whether the clerks had taken the oath of office prescribed for officers of the United States. The Clerk of the Supreme Court answered by letter that the question of an oath had been discussed in 1886 and that the justices had then concluded that a law clerk was not an officer and did not hold office within the meaning of Article VI, Clause 3, of the United States Constitution because he was not appointed by the Court, but rather was designated pursuant to statute by each individual Justice as his personal employee. This explanation was approved by each of the Justices. Thus the rights, duties, and responsibilities of a law clerk have for the most part been defined on an individualized basis. Of course, the qualifications for a United States Supreme Court law clerk de- mand persons of generally high caliber and integrity, as evidenced by the many distinguished careers which these persons have followed (although it must be noted that Alger Hiss was also a former la clerk, employed by Justice Holmes in 1929-30) The fiduciary duties which accompany the office, however, have rarely been made explicit. Sometimes clerks have engaged in business enterprises on the side, as in the case of one Supreme Court clerk who sold photographs of the nine Justices to earn extra money. But, although clerks studied law while serv- ing for the Court before the requirement that they be law school graduates, they are not allowed to practice law outside because of the probability of a conflict of interest. The extent to which clerks are regarded as con- fidential assistants is reflected in Louis L. Jaffe's comment on his work for Justice Brandeis: He once told me that I was never to let anyone know what we were working on, not even the secretaries of the other Justices. Jaffe, An Impression of Mr. Justice Brandeis, 8 HARV. L. SCHOOL BULL. 10-11 (1957). Significantly, only once in the Supreme Court's history has there been a verified leak of information regarding unannounced decisions of the Court by a law clerk, and that was in 1919 in- volving a man who had served under Justice Mc- Kenna for nearly nine years. He promptly resigned and was indicted on a criminal conspiracy charge, which was later dropped. Justice McKenna was careful to impress on his next clerk the requirements for secrecy in the Court's work. Such care has not prevented reports critical of the clerks as workers * . not subject to the usual security or loyalty checks. The Bright Young Men Behind the Bench, U.S. NEWS & WORLD REPORT, July 12, 1957, at 45-48. Nor has it stemmed an outpouring of books and articles written by former law clerks about the judges and the Court. Although many of these are acceptable as historical reporting, a few merely convey rumors and gossip. Information must remain distinct from indiscretion. Although a number of articles and manuals have been written describing the various duties a law clerk is supposed to undertake, comprehensive vows for a law clerk have never been set forth similar to those prescribed for new lawyers and for judges. It is to impress new clerks with the responsibility of their role, to make them aware of the latitude and limits of their office, and to discourage breaches of faith, that the following Oath for Law Clerks has been drafted. OATH FOR LAW CLERKS I, , do solemnly swear that I will faithfully and diligently perform the duties incum- bent upon me as a law clerk to Mr. Justice - . of the Court of In fulfillment of my responsibilities, I will exercise every effort to report facts and law to the Court without conscious error, employing such means only as are consistent with truth and integrity.

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