I finished up my stint last week as a law clerk on the US Court of Appeals for the Sixth Circuit. I’m now in Hong Kong, communing with my people.
Being a law clerk is a power trip, but in the end, that wasn’t quite the most gratifying part of the job for me. What’s remarkable about being an clerk on the US Court of Appeals, versus say the Supreme Court, is the number of mundane matters that come before the court. That’s because you get an appeal as a matter of right. As Judge Sotomayor put it, some 90% of cases in the Court of Appeals are easily disposed of by a unanimous panel.
The other 10% though, doesn’t signal itself through fanfare and trumpets, or even by the parties in their briefs. If you aren’t careful, it’s easy to mistake the 10% for the 90%. That’s where the excitement comes in for me. For instance, can you tell the quality of a lemonade if no one tells you if it’s made from fresh-squeezed juice or powdered gunk? Every appeal comes up to the Court of Appeals the same way—it just appears on your docket. Sometimes it will signal its own importance, e.g., an en banc, or you read about it in the news, but most of the time, before you get into the case, you’ll have no clue as to its importance, and it’s easy to let your eyes glaze over and copy the US Attorney’s brief into your bench memo.
A good law clerk then is vigilant and self-reliant, because you aren’t going to get much help from the parties themselves or their briefs, or even from your judge or other judges because you’re likely to look at the case first. But law clerks who are creative and ingenious thrive as well. For me, that’s where the true job satisfaction comes from. The opportunity to show ingenuity is the opportunity to show yourself in your work. Often, the true source of conflict in a case is hidden beneath the surface of legal diction. To identify it is to identify something unresolved, and to resolve it in an opinion is to put forth one’s own point of view about law.
Just as I admire those who can identify quality on its own, I sought to identify justice (and injustice) on its own, with law as the aid of accumulated wisdom, not as proxy for justice. Clerking was great; I will miss it.
