| June 14
June 14 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, 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; 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
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 klatsch, 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
for each case, the justices typically assign one clerk to
shepherd a 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
One thing is certain: Clerks earn their $74,872 salary.
David Levi said his son seems to be toiling all the time, on
nights and weekends without vacation. "You can do that for a
year if you're young, and you know it will end at some point,"
Of course, the hard work can pay off. Supreme Court clerks
typically get massive signing bonuses from big law firms eager
to burnish their roster of associates. These sweeteners run as
high as $200,000 - on top of a six-figure salary, said Todd
Peppers, a professor at Washington and Lee School of Law who
studies Supreme Court clerks.
Most clerks wait until the term ends in June before
interviewing for their next job. Rebecca Krauss, the Scalia
clerk, is planning a three-month vacation to countries including
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
(Reporting By Terry Baynes. Editing by Amy Stevens, Eileen
Daspin and Douglas Royalty)