Law & Courts

High-Court Nominee’s Clerkship Combed for Hints on K-12

By Mark Walsh — May 17, 2016 9 min read
Merrick B. Garland, President Barack Obama’s nominee to the U.S. Supreme Court, clerked for Justice William J. Brennan Jr. during the 1978-79 term, when he was involved in cases about desegregation and religious schools.
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Merrick B. Garland, now a nominee for the U.S. Supreme Court, was in the first few weeks of his prestigious year as a law clerk to Justice William J. Brennan Jr. in August 1978 when he found himself immersed—in a humble way—in a fast-developing drama involving a major education issue of that era: school desegregation.

The 1978-79 term, during which Garland served, would end up with several major rulings in education, not only in desegregation, but in the areas of the application of federal labor law to private religious schools, free-speech rights for public school teachers, and state laws barring permanent teacher certification for non-U.S. citizens.

But anyone looking for clues about what Garland—President Barack Obama’s pick to succeed the late Antonin Scalia on the high court—was thinking during that year, or what advice he gave Brennan, will find the record frustratingly bare. While some justices preserve their law clerks’ memos for posterity, Brennan mostly didn’t.

“There’s almost nothing that would have clerk fingerprints on it” in the justice’s papers, said Stephen Wermiel, a law professor at American University in Washington, and the co-author of an exhaustive biography of Brennan, a liberal lion who served on the Supreme Court from 1956 until 1990.

Still, just looking at the cases that a law clerk encounters during his or her year serving a justice provides some sense of perspective.

“A Supreme Court clerkship is a remarkable training ground, especially for someone who goes on to become a judge,” said Todd C. Peppers, a visiting professor of law at Washington and Lee University in Lexington, Va., who has written widely about the relationships between Supreme Court justices and their clerks. “I don’t see how you can work for someone like Bill Brennan and not be touched by him.”

Desegregation Battle

While most clerk memos have been removed from Brennan’s papers at the Library of Congress, a close look by Education Week found a few of Garland’s “fingerprints.”

In August 1978, the formal start of the term was more than six weeks away, and most justices were still at their summer homes or otherwise on vacation.

The Columbus, Ohio, school system sought emergency relief from lower federal court rulings that the district had engaged in systemwide violations of the equal-protection clause of the 14th Amendment. The district was under an order to begin a desegregation plan by early that September that called for the reassignment of 42,000 of its 83,000 students, including the busing of 37,000 students.

The school district sought a stay, first from Justice Potter Stewart, who denied the motion, and next from William H. Rehnquist, at that time an associate justice, who was more sympathetic to the district’s arguments. In 1977, Rehnquist had written the opinion for the court that had raised doubts about a systemwide remedial plan for the Dayton, Ohio, school system and ordered lower courts to re-examine it.

In an Aug. 11, 1978, “in-chamber” opinion granting the Columbus district’s stay request, Rehnquist said he did not believe the lower courts had appropriately applied the Supreme Court’s decision in Dayton Board of Education v. Brinkman (also known as Dayton I). Rehnquist suggested that because the high court was in recess, and the start of the school year was looming, it would be “impracticable” to try to circulate the relevant papers to all members of the court.

“Given the severe burdens that the school desegregation order will place on the Columbus school system and the Columbus community in general, and the likelihood that four justices of this court will vote to grant certiorari in this case, I have decided to grant the stay,” Rehnquist wrote in his stay opinion in Columbus Board of Education v. Penick.

Raising the Stakes

The stay quickly elevated the stakes in the case. The desegregation plaintiffs, joined by President Jimmy Carter’s administration, asked the high court to convene a special term before the school year to consider overturning the stay. Such a special term was something the court had only rarely done, such as during the 1957 Little Rock, Ark., school desegregation crisis.

The justices soon started weighing in on the request for a special term. Justice Byron R. White dictated a memo from Denver, expressing his opposition.

Chief Justice Warren E. Burger returned from a vacation on Aug. 16 and was scheduled to leave for Western Europe in a matter of days. In a memo circulated to his colleagues, he worried about “a continuing ‘ping-pong game’ ” involving the multiple-legal maneuvers in the case.

Brennan was still at his summer home on Nantucket Island in Massachusetts. He was famous for making a ferry reservation around July 1 each year for his family and his car, which put pressure on the court to finish the term by that date each year.

“I first learned this noon of the filing of the application supported by the Solicitor General to convene a special session of the court to review Bill Rehnquist’s stay,” Brennan wrote to his colleagues on Aug. 22. “I also learned from my chambers that the Chief, Byron [White], Harry [A. Blackmun] and Lewis [F. Powell Jr.] have circulated memos that each would deny the request. There has been no official word from Potter [Stewart], Thurgood [Marshall], or John [Paul Stevens].”

“Since there are five votes to deny, I see no purpose in my examining the papers and I will simply pass,” Brennan wrote. “I have authorized my clerk, Merrick Garland, to initial this memorandum for me.”

Attached to the memo, in Brennan’s papers at the Library of Congress, is a small note typewritten by Garland: “Mr. Justice: Attached is a copy of the memorandum which was circulated this afternoon.” He signed it “Merrick” in his own handwriting.

Charles J. Cooper, a prominent Washington lawyer who was a clerk to Rehnquist that term, said the August drama over the Columbus stay “was a big, big ticket, especially in our chambers.”

Though he didn’t work on the matter, “you couldn’t be a law clerk and not know what was going on with it,” Cooper said.

On Aug. 25, the chief justice entered an order denying the request for the special term. Rehnquist’s stay remained in place and the Columbus district did not have to begin its desegregation plan that school year. But the high court did take up full review of the Columbus case during the term.

Memo Trail

Wermiel said that Brennan relied on his law clerks in a different way than most of his colleagues. In most chambers, then as now, the clerks read appeals in the cases seeking high court review and make recommendations on whether to grant or deny. They also prepare “bench memos” for their bosses before argument in a granted case, outlining the major issues.

Brennan, by contrast, read most appeals himself, Wermiel said. And during most of his 34 years on the bench, Brennan did not assign his clerks to write bench memos, either. But clerks did play a major role in drafting opinions for Brennan.

The justice’s papers reveal such a role for Garland in one of the education cases of the term.

In National Labor Relations Board v. Catholic Bishop of Chicago, the court weighed whether church schools that employed both religious and lay teachers came under the authority of the National Labor Relations Act. And if they did, the case asked whether the NLRB’s exercise of that jurisdiction would infringe the First Amendment religious rights of such schools.

The court eventually ruled 5-4 that the federal labor law did not give the NLRB jurisdiction over such church schools. Brennan, as the most senior justice in the minority, assigned the dissent to himself. Garland evidently ended up with the writing assignment.

In a memo to his boss—one apparently left in Brennan’s files by mistake—Garland outlined two options for the dissent.

One “challenges the [majority’s] interpretation of the [NLRA], goes on to decide the constitutional issue precisely before the court, and then explains which constitutional problems can and should be left for another day,” Garland wrote.

The second option would not decide the constitutional question. Garland said he favored the latter approach.

“First, I’m not sure that the constitutional problem is really as easy as I make it sound in Option I,” Garland wrote. If the NLRB exercised labor authority over religious schools, he wrote, “there may still be a considerable chill on the religious authorities’ exercise of their religious beliefs. They may fear to fire a heretic, or to exclude teachers from decisions of religious policy, simply because they fear extensive litigation and insensitivity on the part of the [labor] board.”

Garland also weighed two competing approaches the court takes in some cases, one to “decide only the case now before it” and another when there “will be many occasions upon which we will want the court to decide more than just the issue before it.”

In the end, Brennan went with a version of Garland’s Option II.

“Under my view that the NLRA includes within its coverage lay teachers employed by church-operated schools, the constitutional questions presented would have to be reached,” Brennan wrote in his published dissent, deftly adding: “I do not now do so only because the [majority] does not.”

‘A Heady Experience’

Garland’s term came just after the one during which the Supreme Court decided the landmark case Regents of the University of California v. Bakke, which upheld qualified uses of race in college admissions.

During Garland’s service, one of Brennan’s most-significant majority opinions of the term came in United Steelworkers of America v. Weber, which upheld a race-conscious affirmative action plan in the workplace. The decision would have an impact for school district hiring as well.

Other education cases taken up by the high court during Garland’s term included Givhan v. Western Line Consolidated School District, giving First Amendment protection to a teacher who made private complaints to her supervisor about how her school was being run.

And in Ambach v. Norwick, the court upheld a New York state law that barred permanent teacher certification for any non-citizen unless that teacher showed an intention to seek U.S. citizenship.

“It was not a blockbuster term, but of course, there were more than 150 cases compared to the 70 or so [per term] these days,” said Carter G. Phillips, a law clerk to Chief Justice Burger that term and now a top advocate before the high court.

Cooper, the Rehnquist clerk, disagreed slightly, saying he recalls huge demonstrations outside the court for the United Steelworkers affirmative-action case.

“Whether a term is filled with controversial cases, or is relatively mundane, serving as a clerk is a very heady experience,” Cooper said, adding that he built a friendship with Garland during their term that remains strong.

On July 2, 1979, the court convened to issue the final nine opinions of the term, including its decision on the merits in the Columbus desegregation case. The court ruled 6-3 to uphold a systemwide desegregation remedy for Columbus. (In a separate decision, it upheld Dayton’s systemwide plan by a 5-4 vote.)

Rehnquist wrote dissents in both. Brennan supplied a vote for the majorities in both cases, but didn’t write any opinions.

Brennan was soon on the ferry for another summer on Nantucket Island. And Merrick Garland’s clerkship was over.

A version of this article appeared in the May 18, 2016 edition of Education Week as Combing High-Court Nominee’s Clerkship for K-12 Hints

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