The Volokh Conspiracy

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How Often Do Justices Refer To "My Law Clerk"?

Justices Breyer and Sotomayor did it a lot.


In my earlier post, I recalled that Justice Kagan had asked hypotheticals about her law clerks during oral argument in King v. Burwell and in 303 Creative. I remember the former example because I was seated in the Court for oral argument. The latter argument was more recent. For a lark, I searched the term "my law clerk" in the Supreme Court oral argument database on Westlaw. There were a lot of hits. I never quite considered how often the Justices give their clerks a shout-out during oral arguments.

Here are all of the hits over past few terms, all from Justices Breyer and Sotomayor.

  • JUSTICE BREYER: But, look, there are four circuits, it's the same question. From what we can tell, my law clerks looked this up, the Second, Sixth, Seventh, and Eleventh say that basically, 60(b)(1) authorizes, based on relief, based on a legal mistake, as long as the time to appeal hasn't run. Kemp v. United States (2002).
  • JUSTICE SOTOMAYOR: Mr. Bond, my law clerk tried to explain my simple thinking when I was reading this provision, and I'm not sure I fully understand her response, and perhaps you can explain it to me. Boechler v. CIR (2022)
  • JUSTICE BREYER: What this says, what I—I mean, my law clerks have been busy beavers on this case, I promise you, and what they have on this issue is that there are exceptions here. NFIB v. OSHA (2022).
  • JUSTICE SOTOMAYOR: I have to go back to the complaint more carefully, but at least my law clerk did and told me that there was no allegation, and so you might be right, that keeping two fiduciaries would have reduced the price and to what level, but—Hughes v. Northwestern University (2021).
  • JUSTICE BREYER: What—my law clerk, who's looked up a lot of these things, is usually right. I mean, she's found about, I don't know, five treatises going back to 1883 and 32 cases, you just heard him say, and a lot of other stuff, and they all seem to say, well, there is an exception where the object of the contract is such that that's likely to be the harm, and you're—so what do you say? Cummings v. Premier Rehab Keller (2021).
  • JUSTICE SOTOMAYOR:—we could quibble with that, but my point is, I'm told by my law clerks, that among certain populations—a certain large percentage of the population, how much you curse is a badge of honor. That would surprise many parents. Mahanoy Area School District v. B.L. (2021).
  • JUSTICE SOTOMAYOR: And I know that—or at least my law clerk has looked through the record and not been able to find an answer as to what portions. Service v. Sierra Club (2020).
  • JUSTICE BREYER: And I couldn't—my law clerk couldn't find any case that ever said that. And he couldn't find that the—the—that the restatement ever said that. Lucky Brand Dungarees v. Marcel Fashions Group (2020).
  • JUSTICE BREYER: All right. So I counted. I had my law clerks count, actually, not just the people who came in, you know, the 700,000. DHS v. Regents of the University of California (2019).
  • JUSTICE BREYER:—what the cases say at this moment. I've read cases, my law clerk has found 40 instances, going back to Bracton, you know, where it seems to be against you, but I'm not interested in that. Kahler v. Kansas (2019).
  • JUSTICE BREYER: Can I get help from my law clerks? (Laughter.) Quarles v. U.S. (2019).
  • JUSTICE BREYER: The second thing, though, I'm not sure because, in 1901, a 1901 allotment agreement, according to my law clerk, what she says is it—for—it—it restricted but did not eliminate the authority of the Creek National Council to pass legislation "affecting the lands of the tribe or of individuals after allotment or the moneys or other property of the tribe or the citizens thereof," the President had to approve that. Carpenter v. Murphy (2018).
  • JUSTICE BREYER: And there I asked my law clerk to go look up what other countries do, and this is what I found. Republic of Sudan v. Harrison (2018).
  • JUSTICE BREYER: So what is the private—I mean, what I have here, my law clerk looked it up, is that the search that Mr. Italiano engaged in was his name, that's certainly public, his home address, I imagine that's public, name in bankruptcy, his name in foreclosure proceedings, his name in short sale proceedings, his name in Facebook, and his name  and the name of his then soon-to-be ex-wife and the words "forensic accounting." Frank v. Gaos (2018).