I’m interested in finding instances in which former Supreme Court law clerks have taken credit (at least partially) for their role influencing the outcome or opinion in famous Supreme Court cases. I’m not interested in stories of clerks making private or off-the-record comments; my interest is in public comments such as those in speeches, books, or articles.
An example of what I have in mind is Professor Laurence Tribe’s 1991 speech in which he took at least some credit for the famous Fourth Amendment decision in Katz v. United States:
Around 23 years ago, as a then-recent law school graduate serving as law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government’s electronic surveillance of a suspected criminal — in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect’s privacy was accomplished without physical trespass into a “constitutionally protected area,” the Federal Government argued, relying on *Olmstead*, that there had been no “search” or “seizure,” and therefore that the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” simply did not apply.
At first, there were only four votes to overrule *Olmstead* and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I’m proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number >from four to seven — and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment “protects people, not places.” (389 U.S. at 351.) In that decision, *Katz v. United States*, the Supreme Court finally repudiated *Olmstead* and the many decisions that had relied upon it and reasoned that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting *free speech* as well as the Fourth Amendment purposes of protecting *privacy* require treating as a “search” any invasion of a person’s confidential telephone communications, with or without physical trespass.
If you know of other examples, please e-mail me at okerr (at) law.gwu.edu. Thanks.
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