Page 30 - CLT021521

30 ¦ FEBRUARY 15, 2021 NEWS

¦ From INSIDE on PAGE 29
something hidden that would create a problem for
some future First Amendment case,” Phillips said. “I
teased him that it was his boss, not mine, who was
notorious for leaving landmines in footnotes in his
opinions that blew up on the court in subsequent
cases. He smiled and still forced me to go through
every sentence.”
Brennan mostly did not preserve his clerks’
memos as some justices did. But there was one in
his files written by Garland for a dissenting opinion
by Brennan in National Labor Relations Board v.
Catholic Bishop of Chicago. The majority, in a 5-4
decision, ruled the board did not have jurisdiction
over church schools under federal labor law.
Garland gave the justice two options: one would
decide the First Amendment issue directly before U.S. Supreme Court Justice William J. Brennan Jr.
the court and the other would leave the constitu- Credit: Robert S. Oakes/Library of Congress

tional question for another day. He recommended week. One of the respites from the workload was
the latter option and Brennan agreed. basketball “on the highest court in the land,” the fifth
Garland was “one of the most floor, above the courtroom, in the
impressive and interesting clerks Supreme Court building.
with whom to exchange ideas,” Fischel remembered Garland
said Daniel Fischel, a former law as not being one of the stronger
clerk to Justice Potter Stewart. “He is a person of players on the court. “He was like

“Even though the clerks are not exceptional talent and awful,” recalled Fischel.
the justices, they frequently will great personal integrity,” Phillips was kinder, calling Gar-
have strong feelings about cases,” land a “mediocre” player but “better
Fischel, chairman of Compass Lex- the late Justice William than a couple of others in Brennan’s
icon in Chicago, said. “What I liked Brennan Jr. wrote in a chambers. Not that I was anything
about Merrick, he never personal- letter in 1995. “I have had to write home about, but I think I
ized things. It was never a matter over 100 law clerks and played better than he did. Not sure
of good or evil, right or wrong, just Merrick is one of the best.” what would happen now.”

respectful difference of opinion.” But Garland continued to show
During Garland’s high court up. The announcement was “the
clerkship, Brennan wrote the term is beginning on the high-
majority decision in United est court in the land”—a signal
Steelworkers of America v. Weber, a significant pro- to clerks that basketball was starting, which is why
affirmative action decision. Brennan also wrote the Stith showed upon the basketball court. She said she
majority ruling in the case Orr v. Orr, which said learned later some male clerks weren’t comfortable
an Alabama law requiring only husbands to pay ali- playing with a woman.
mony violated equal protection rights. “Merrick was entirely supportive. ‘Of course you
should play,’” she remembered Garland saying.
The matter was resolved, she said, when her boss,
Hoops at the high court
As they do today, Supreme Court law clerks in White, arrived and announced she would team up
1978 worked long hours and often seven days a with him.

CONNECTICUT
Law Tribune