{"id":51910,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/for-judges-and-clerks-the-song-remains-the-same.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"for-judges-and-clerks-the-song-remains-the-same","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/for-judges-and-clerks-the-song-remains-the-same.html","title":{"rendered":"For Judges and Clerks, the Song Remains the Same"},"content":{"rendered":"\n
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FOR JUDGES AND CLERKS, THE SONG REMAINS THE SAME:
A Review of The Forgotten Memoir of John Knox<\/u>, A Supreme Court Clerk’s Account of His 1936-37 Clerkship<\/h1><\/span>
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By PAUL HORWITZ<\/h2>
<\/a>\n\n—-\n
Friday, Oct. 4, 2002
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Dennis J. Hutchinson & David J. Garrow, eds., The Forgotten Memoir of John Knox<\/i> (University of Chicago Press 2002)<\/i><\/p>\n \n\n\n

Anyone who thinks of clerk tell-alls as a strictly modern phenomenon should think again. John Knox wrote a memoir of his year as a law clerk to Supreme Court Justice James C. McReynolds during the Court’s October 1936 Term. Knox’s account has recently (and posthumously) been published for the first time – in an abridged version edited by law professors Dennis J. Hutchinson, himself the former clerk and biographer of Justice Byron White, and David J. Garrow.<\/p>\n\n

After reading Knox’s memoir, a friend warned him, “I suppose you realize that your account leaves you as naked as it does McReynolds.” Knox either didn’t know or didn’t care – and it is his willingness to lay himself bare that provides the true fascination of this memoir.<\/p>\n\n

Knox’s Clerkship: In the Midst of the Court-Packing Controversy<\/b><\/p>\n\n

Knox, an autograph hound and letter-writer to the great figures of his day, parlayed a correspondence with Justice Willis Van Devanter into a clerkship with Justice McReynolds. McReynolds is remembered now, if at all, for his notorious racism and anti-Semitism, and for his role as one of the Four Horsemen who resisted at every step the advent of the New Deal and the rise of the regulatory state. <\/p>\n\n

As a law clerk to McReynolds, Knox found himself with a ringside seat at a major episode in the Supreme Court’s history. Little did he know, in the fall of 1936, when the clerkship began, that it would coincide with this century’s greatest battle over the composition of the Supreme Court – and the downfall of the Four Horsemen. <\/p>\n\n

As students of history are often taught, Franklin Delano Roosevelt’s Court-packing plan led to the “switch in time that saved nine” on the Court: To avoid being joined on the bench by a slew of pro-FDR Justices, the Court changed its mind about the New Deal, allowing the President’s programs to go forward. That story has been challenged in recent years. But whatever caused the Court’s change of course, there is no doubt the October 1936 Term was the critical year. <\/p>\n\n

In his memoir, in real time, Knox recaptures the uncertainty of the period: the question whether FDR would win reelection and consolidate the New Deal, the surprise of Roosevelt’s announcement of the Court-packing plan just hours after his annual dinner with the Justices at the White House, the resolution of the Four Horsemen as they mount a last rear-guard action against the New Deal legislation, and the eruption of passions as the Justices announce their opinions in the closely contested cases that come before the Court that year. <\/p>\n\n

Although Knox is on the sidelines, not a player, he paints a strong picture of a quiet and isolated Court, fighting its internal battles in conference rooms while trying to steer clear of the war over the Court raging outside its white marble walls. <\/p>\n\n\n

\n\nReviving the Lost World of Old D.C. <\/b><\/p>\n\n

As Hutchinson and Garrow write in their useful introduction, Knox’s memoir succeeds not only in bringing this controversy to life, but also in reviving the “lost world” of the Court and of Washington in general. During the 30’s, the city transformed from a Southern backwater to a major capital, and its institutions became highly bureaucratized. Knox observes firsthand the effects of the change.<\/p>\n\n

Knox discovers upon arriving in Washington that his duties as clerk will include mastering the minutiae of calling cards – when to leave them, when their corners should be folded at one end or another, and other vital tasks. He runs interference for McReynolds with his coterie of lady “Cave Dwellers,” members of old Washington society whose 19th Century social manners are untouched by the Depression and the New Deal. <\/p>\n\n

Knox also captures the ferment of the times, contrasting his visits to society matrons with visits to the city’s growing population of energetic, cocky New Dealers (among them a young Alger Hiss). Here we witness the new Washington replacing what was just a provincial capital. <\/p>\n\n

A Portrait of Differences of Race and Religion in the Capital as Well <\/b><\/p>\n\n

Equally vivid is Knox’s account of the black Washingtonians with whom he works – Harry Parker, McReynolds’ messenger and servant, and Mary Diggs, his cook and housekeeper. Along with Cardozo, Parker and Diggs come across as the most decent people in the book: warm where McReynolds is cold, and dignified in their poorly paid work for an unappreciative man who clearly could not survive without them. <\/p>\n\n

McReynolds’s image, already poor, reaches its nadir when Parker describes his duties as a human guide-dog and retriever on McReynolds’ duck hunting trips. And Parker has the book’s choicest line, offering proof that not all has changed in Washington: asked by Knox whether anyone in Washington is sincere, he replies, “Well, sometimes – sure – and sometimes – no.” <\/p>\n\n

Race and religion play a major role in the book, unsurprisingly given McReynolds’ reputation. McReynolds is tied up in knots in trying to figure out how to write to a black man without lowering his own sense of station, and it is made clear to Knox that Jews will be unwelcome in McReynolds’ home. (Curiously, though, when McReynolds scolds Knox for his familiarity with Parker, Knox’s first reaction is to take offense that McReynolds mistakes him for a Northerner – suggesting Knox had a few biases of his own.) <\/p>\n\n

No matter how large and impersonal Washington has become since Knox’s day, some change is clearly for the better. <\/p>\n\n\n

The institution of law clerk has grown immeasurably since Knox worked for McReynolds in the mid-thirties. Nevertheless, much of Knox’s depiction of his relationship with McReynolds serves as a better guide to the nature of clerking than many of the works devoted to the subject since then – especially since Knox draws on contemporaneous diary entries to flesh out the book. <\/p>\n\n

That may be owing to Knox’s peculiar blend of flaws and virtues: his overweening ambition combined with sometimes unbearable naivete, and his willingness to describe his own thoughts and deeds no matter how poorly they reflect on him. Knox’s fearless – or perhaps just shameless – willingness to share the mixed experience of clerking for McReynolds drives a spike into the romanticized picture of the judge-clerk relationship. <\/p>\n\n

Seeking in McReynolds a father-figure and finding only disappointment, Knox largely fails to see that McReynolds hasn’t changed at all over the year; it is only Knox’s own perspective, and expectations, that have changed. Although McReynolds was forbidding and sometimes unpleasant, according to Knox, he was also at times courtly and polite, and regularly drove Knox to the Court building with little ado. But Knox’s hopes that he might be more than an employee to his Justice die hard, and his realization that his job is not so momentous as he thought comes late.<\/p>\n\n

Like many clerks, now as then, Knox fails to see that he is simply a tool, one in a long line of replaceable employees. Knox’s memoir should thus serve as a potent counter to the romantic image of the clerk as vital player on the court and second son (or, now, daughter) in a judge’s life.<\/p>\n\n

Knox is able to reveal an evolution in his dealings with McReynolds that is still not uncommon in the judge-clerk relationship. Overawed at first by what he assumes will be his momentous role in the Court and his judge’s life, Knox slowly grows frustrated to learn that McReynolds is often distant, arbitrary in doling out his friendlier moments, and sometimes just plain ill-tempered. <\/p>\n\n

Hoping to find a mentor and friend, Know soon realizes he is simply a glorified secretary. His one effort at drafting an opinion for his boss is glanced at and discarded. He labors long hours over certiorari petitions (requests, that is, for Court review) that are dispensed with in moments by McReynolds, by then in his twenty-fourth year on the Court. <\/p>\n\n

Try as Knox may to bridge the gap between them, McReynolds remains a cold, though not unfriendly, figure. By the end of the memoir, he has become, in Knox’s eyes, “that bastard.” <\/p>\n\n

To be sure, the role of clerks has grown immensely since Knox wrote, and many clerks enjoy far closer relationships with their judges than Knox did. That may occur in part because both judges and clerks now absorb the same set of cultural expectations about what that relationship is supposed to entail, in law school and in numerous memoirs and law review tributes. <\/p>\n\n

But at the same time, much remains the same: the clerks’ ambition and self-importance, their belief that they are second only to the judge’s family in importance, if not tied for first, and – sometimes – their realization many years later that the work of the court would have gone just fine without them. If Knox at one point calls himself “a piece of furniture” in Justice McReynolds’ chambers, that is because that is what clerks are, in important respects: important, often useful, but also fungible tools to the hand of the judge. <\/p>\n\n\n

The Forgotten Memoir of John Knox<\/u> <\/i>is a useful antidote to the controversy over Edward Lazarus’s Closed Chambers<\/u>. That is true not only because it shows that Lazarus was hardly the first to rip apart the curtain shielding the Court’s inner life from scrutiny, but also because it reminds us that dramas in which law clerks take center stage depend on their authors’ ingrained inability, fed by all the mythology that now surrounds clerking, to see that they are merely bit players. <\/p>\n\n

Knox’s memoir, generously brought to public light by Professors Hutchinson and Garrow, will serve as a useful addition to the bookshelf of Court history. It also offers an equally useful warning to present-day Court watchers and future clerk-memoirists to maintain a sense of perspective. <\/p>\n\n\n<\/span>\n\n

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\n\n\n<\/a>\nPaul Horwitz practices law at O’Melveny & Myers in Washington, D.C., and has written extensively on questions of constitutional law and theory.\n\n

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