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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?
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
--Sir Francis Bacon
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.
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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