August 2012 Bar Bulletin
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August 2012 Bar Bulletin

How It Used To Be

The Supreme Court's Law Clerks


In December, we concluded John Rupp's history of the Seattle-King County Bar Association. In February, we launched a new series, also written by Mr. Rupp, in which he recalled his stint as one of the first law clerks to the Washington Supreme Court. Again, we present it unedited, as he wrote it. The editor wishes to thank his colleague Ken Rekow for discovering this old jewel and dusting it off for publication in these pages. Mr. Rupp (or perhaps his secretary) typed out this opus in March 1977; so, the story begins in 1937. Enjoy.

(Third in a series)

[Editor's Note: When we left you in May, John Rupp was giving us a peek into the inner workings of the Supreme Court.]

The other main part of my job was helping with opinions. When a case was assigned to Judge Steinert for opinion he would tell me, and, as soon as I could, I would get the record and the briefs and study them, and read the cases cited and do other research and then prepare a memorandum on the case. I would pretend that I was a judge writing an opinion. The memorandum was written in the first person singular, but in such a way that all the judge would have to do would be to change "I" to "we" and he would have a fine opinion all ready to go. Obviously an admirable arrangement.

Alas! It was not to be. Never once did he go along. We usually agreed on the result, and we didn't quarrel much about the correct analysis, but he always wrote his own opinions. I still have two of them, carefully written in his eminently legible script.

I was disappointed then, but looking back, I think he was right. I know that it is very hard for me to adopt as my own a letter or brief that someone else has written. And I think that a judge should write his own opinions if for no other reason than the discipline that writing imposes on one - Francis Bacon spoke well when he laid it down that Writing Maketh an Exact Man. I think, too, although he never told me so, that Judge Steinert believed that he had a duty to write his own opinions in his own way and that it would have been not quite proper for him to use the handiwork of someone else.

Moreover, law clerks were new on the scene, and I suppose that there were critics who would complain that the judges were abdicating to the clerks. Indeed, I remember that Judge Steinert did not want me in the courtroom, even if I had time to spend there, because he did not want the lawyers to think that his law clerk was taking over any of his official work.

Two or three of my classy opinions did, however, get in the books. At the end of December 1937 Judge Steinert was current on opinions, but Judge Robinson was behind. He had taken time out to write some long dissents, and that got him behind on the preparation of majority opinions. So I was lent to Judge Robinson, and, much to my delight, he did use some of my work. Pretty good opinions, too, but I won't tell which ones they were even if it was 40 years ago.

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