Take us back to when you were a law clerk at the U.S. Supreme Court. What were the big issues? What was the ideological makeup?
New York appellate attorney Joshua Rosenkranz of Orrick reflects on what the US Supreme Court was like when he was a law clerk.
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Ooh, boy. So it was 1987-88. It was the height of the Reagan conservative ascendancy. Ed Meese was the Attorney General. The Supreme Court was really on the razor’s edge in terms of ideological balance, so you had the ardent liberals like Justice Brennan, who was the lion of the liberal branch of the Court, Justice Blackman, Justice Stevens. And on the other side you had ardent conservatives. The Chief Justice at the time was Rehnquist and Justice Scalia. Justice White was often part of that conservative balance. Right in the middle was Justice O’Connor and Justice Powell, who had just left. And so there was a vacancy on the Court for the first half of my time there.
That was the Bork era, so for the first time ever, the Senate came clean with the proposition that they actually do care about ideology rather than pretending that they were attacking justices about something else. So Justice Bork’s nomination went down, then Judge Doug Ginsberg’s nomination went down, and Justice Kennedy joined the Court, and he really sat right at the center of the Court. The ideological mix, therefore, was evenly balanced, and among law clerks in particular there was this infusion of conservative blood.
So the Federalist Society had just been founded a couple of years earlier. Ardent conservatives who were the founders of the Federalist Society had joined the Court. It really changed the dynamic among law clerks. And the issues, strangely, were very much the same as they are today. Abortion was sort of center stage, the death penalty, all manner of criminal justice issues, separation of powers. It was the year of Morrison v. Olson, which was about a separation of powers issue, about the independent prosecutor in the Iran Contra investigation.
And so it really is so interesting that the more things change, the more they remain the same. The one thing that’s really different is gay rights – or at least I think it might be different. But Bowers v. Hardwick had just been decided. That was the case in which the Supreme Court said that it was okay for a state to criminalize sodomy. That’s obviously changed, and now we’re talking about marriage equality and what the Court will do with that.