Marquette Law Review
Law clerks have been part of the American judicial system since 1882, when Supreme Court Justice Horace Gray hired a young Harvard Law School graduate named Thomas Russell to serve as his assistant. Justice Gray paid for his law clerks out of his own pocket until Congress authorized funds for the hiring of “stenographic clerks” in 1886. The Gray law clerks, however, were not mere stenographers. Justice Gray assigned them a host of legal and non-legal job duties. His clerks discussed the record and debated the attendant legal issues with Justice Gray prior to oral argument, conducted legal research, and prepared the first draft of opinions. Today all nine Justices of the United States Supreme Court follow the institutional practices established by Justice Gray. Each Justice is entitled to hire four clerks (five, in the case of the Chief Justice), most of whom are recent graduates of an elite law school who serve for a single term. What is more, the practice of hiring newly graduated attorneys to serve as clerks has spread beyond the Supreme Court to become a well-established feature throughout both the federal and state courts.
Chad Oldfather & Todd C. Peppers, Judicial Assistants or Junior Judges: The Hiring, Utilization, and Influence of Law Clerks, 98 Marq. L. Rev. 1 (2014).