Thread by @marinklevy

Who wants to talk about the history of law clerking? Everybody? Good. Let’s pull up a chair for a little judicial administration history….⚖️🧵 (1/x)

According to the late (Second Circuit (❤️) Judge) J. Daniel Mahoney, the "institution of clerking" (don’t you love that phrase?) began over a century ago. It is largely undisputed that the first jurist to utilize legal assistants was one Horace Gray. (2/x)

Who was Horace Gray and why did he feel the need to employ a law clerk? Well, in 1873 he became the Chief Justice of the Massachusetts Supreme Judicial Court of Errors (which could be the subject of its own twitter thread…) and found that his workload had increased considerably.

So what did the enterprising Chief Justice Gray do? Again, according to Judge Mahoney, he employed the services of a law assistant in the summer of 1875. Mahoney adds that Gray’s first law clerk was a recently graduated and highly ranked @Harvard_Law student. (4/x)

(I will just add here that as a @YaleLawSch alumna myself, I will not be commenting upon Chief Justice Gray's tastes in law clerks. @YPractitioners, I am sure you support this decision. 😉)

In December 1881, President Chester A. Arthur nominated Gray to fill the vacancy on the U.S. Supreme Court created by the death of Nathan Clifford. (And if you're like, “who?” don’t worry – I have no doubt that the @SCHSociety has got you covered.) (6/x)

Apparently subscribing to the view that no man should be left behind, Justice Gray took his law clerk to Washington with him (and paid his salary out of his own pocket – a practice, in Judge Mahoney's words, that has “fallen into fortunate disuse” - !). (7/x)

In 1885, Att'y Gen. A. H. Garland (indeed, there has been an AG Garland before – the fun facts here abound!) suggested that “[i]t would greatly facilitate the business of the Supreme Court if each justice was provided by law with a secretary or law clerk to be a stenographer."

In 1886, Congress followed AG Garland’s recommendation and provided a “stenographic clerk” to each justice . . . at a salary of $1,600. (9/x)

Now Justice Gray, for his part, had no interest in demoting his clerk to a mere stenographer. Indeed, he continued to use his clerks to draft the occasional opinion (to be used as a source of discussion) and to review opinions proposed by the other Justices. (10/x)

As Judge Mahoney concludes, “It is fair to say that Justice Gray was not only the founder of the institution of ‘law clerking,’ but also the draftsman of the role a law clerk was thereafter to perform." (I'm not crying; you're crying.) (11/x)

For those interested in a post script (aka everyone), in 1919, Congress authorized the Justices to hire a true “law clerk” (as opposed to a mere “stenographic clerk"). And in 1921, Chief Justice Taft, a lover of judicial administration, became the first Justice to rely upon both.

And for those interested in a post post script (again, everyone), in 1930, Congress provided each federal appellate judge one law clerk. In 1936, the same courtesy was afforded to district court judges. (Fin) #IHeartJudicialAdministration #TheMoreYouKnowAboutCourts