With a ruling expected soon in the landmark U.S. healthcare case, Supreme Court watchers have scoured the landscape for clues about how the nine justices will vote. But they left one stone unturned.
Make that 36. That is the number of law clerks who serve the justices, do their research, help draft their opinions and exert a not insignificant influence on their thinking.
It's not easy to divine what these elite young barristers might be telling their bosses. The clerks, who are handpicked each year, are sworn to secrecy from Day One, and almost always keep that vow until their justice is off the bench or dies. They have a separate dining room in the Supreme Court cafeteria where they can discuss the secrets of the chambers without the risk of being overheard. As recently as 2008 law clerks worked on computers with no Internet connection to thwart potential hackers, according to a former clerk. Even their families know better than to inquire about goings-on behind the marble walls.
"We never bring up any such matter," said Homi Bhabha, father of Ishan Bhabha, who is clerking for Justice Anthony Kennedy. "We wouldn't do that to someone we love dearly."
But reviews of the clerks' resumes and interviews with their former employers and colleagues -- and yes, even their parents -- shed light on their personalities and predilections and, in a few instances, their possible healthcare politics.
Of this year's crop, 25 previously clerked for federal appeals-court judges appointed by Republican presidents. Only 11 clerked for Democratic appointees. At least five were members of the conservative Federalist Society while in school. Two served tours of duty in Iraq and one was a writer for Sports Illustrated. About half went to Ivy League law schools, and more than two-thirds are men. Rebecca Krauss, a clerk for Justice Antonin Scalia, spent a year delivering medicines on horseback in India and caring for orphaned elephants in Sri Lanka before she met her now husband at the base of Mt. Everest.
There are also three clerks assigned to the retired justices Sandra Day O'Connor, David Souter and John Paul Stevens. No current clerks returned messages seeking comment. A spokeswoman for the Supreme Court declined to comment.
THE SWING CLERKS
For tea leaf readers, the key clerks on healthcare may be those who work for Chief Justice John Roberts and Justice Anthony Kennedy, the two whose votes are considered to be in play. Court watchers point to prior decisions in which Roberts has deferred to Congress, suggesting a possibility he might uphold the Obama-backed healthcare law despite his conservative leanings. Kennedy is the high court's perennial wild card.
So what does the Roberts "bench" look like? The stellar resume of Colleen Roh, a Harvard Law grad with an interest in administrative law, betrays no particular political bent. But the chief justice's other clerks appear to tilt rightward. Christopher DiPompeo, for example, a former member of the Federalist Society, penned a prize-winning law review article on the limits of the U.S. Constitution's Commerce Clause, the same law the federal government is relying on to defend healthcare reform.
Another Roberts clerk, Frederick Liu, previously worked for the U.S. Senate Republican Policy Committee assembling briefing materials for a constitutional amendment to ban same-sex marriage. Then there's Hagan Scotten, a U.S. Army veteran who won two Bronze Stars with the Special Forces in Iraq before enrolling in Harvard Law, according to a Harvard publication. Scotten has a reputation as a conservative, said a law school classmate, Paul Bailin. He's also "tall, good-looking ... basically the most likely to become a future president."
Kennedy's clerks may be a touch more diverse politically, though not academically. (Like the justice himself, all went to Harvard -- three for law school, one for college.) Leah Litman, the token University of Michigan Law School alum, "tended to be on the liberal side of the spectrum," said Douglas Brayley, a friend who clerked with her at the U.S. Court of Appeals for the 6th Circuit in Cincinnati. The judge she worked for, Jeffrey Sutton, voted to uphold the healthcare law.
The bona fides of fellow Kennedy clerk Justin Walker, meanwhile, are vintage GOP: He was a speechwriter for former Defense Secretary Donald Rumsfeld and worked on the re-election campaign of President George W. Bush.
As for the other two members of the Kennedy klatch, their politics are harder to discern. Eric Nguyen wrote an article critical of union tactics for the Harvard Journal of Legislation but then did research for Elizabeth Warren, the consumer activist and now Democratic candidate for U.S. Senate in Massachusetts. Ishan Bhabha has worked for federal prosecutors and for the Harvard Defenders, a group that provides free legal advice to accused criminals, according to law school peer Alexandra Davies, a lawyer at O'Melveny & Myers in Los Angeles, who said Bhabha wanted to gain insight into both sides.
WORKING ON WEEKENDS
Instead of relying on the advice of all four of their clerks on every matter, the justices typically assign one clerk to shepherd each case, from drafting an initial memo laying out the legal issues to preparing the justice for oral arguments to sometimes penning the first draft of an opinion.
In the healthcare litigation, it could not be determined which clerks were chosen or even whether that protocol was used. Because healthcare is a mammoth case, the justices may have divvied the issues up among the clerks, said David Levi, dean of Duke Law School, a former clerk for the late Supreme Court Justice Lewis Powell and father of William Levi, a current clerk for Justice Samuel Alito. Levi pere stressed that he got no information about this from his son. "I don't want to know," he said.
Clerks who breach the vow of omerta do so at their own risk. In the high court's 223-year history, there have been only a handful of known transgressors. Edward Lazarus, a former clerk to Justice Harry Blackmun, published a 1999 tell-all, "Closed Chambers," about his experience. Former clerks and even a federal judge lashed out at him in the press, saying he breached his ethical duties. Lazarus, who recently resigned as chief of staff for the Federal Communications Commission, declined to comment.
For their $74,872 annual salary, clerks often toil until late at night and through the weekend, without a vacation. But once the term is over, their year at One First Street is likely to translate into a massive signing bonus from a big law firm eager to burnish its roster. These sweeteners can exceed $200,000, on top of a six-figure salary, said Todd Peppers, a professor at Washington and Lee School of Law who wrote his PhD dissertation on the subject of Supreme Court clerks.
For now, Rebecca Krauss, the Scalia clerk, is planning a three-month vacation to New Guinea and Mongolia, said her father, Michael Krauss, a professor at George Mason Law School. She will then probably join a big firm, he said. "My daughter has a big student loan to pay off."
(Editing by Amy Stevens, Eileen Daspin, Douglas Royalty and Jim Loney)