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  • Writer's pictureArjun Gananathan

Starting Off with Judicial Clerkship on U.S. Court of Appeals and the U.S. Supreme Court

After graduating from law school and before beginning practice, many American litigators choose to clerk for a judge. Students who graduate at the top of their class and those who attend prestigious universities aim specifically to clerk in the federal court system. Only the most distinguished graduates receive the opportunity to clerk on the U.S. Court of Appeals and the U.S. Supreme Court. In 1962, after graduating first in his class from Yale Law School, Alan Dershowitz clerked for the Chief Judge of the U.S. Court of Appeals for the DC Circuit, David Bazelon. A year later, Dershowitz was selected as one of only eighteen Supreme Court clerks, working for Associate Justice Arthur Goldberg.

At only 24 years old, Dershowitz was tasked with providing counsel to judges, conducting legal research, and even writing drafts of opinions. These opinions were notably non-trivial; virtually all cases that land in the federal appellate courts are consequential. Hardly a year removed from law school, Dershowitz was already outlining and scripting American common law on topics as serious as voting rights, desegregation of schools, and the rights of criminal defendants.

Justice Goldberg was well-known for his progressive legal philosophy. On his first day on the job, Dershowitz was directed by Goldberg to write a memo arguing for the abolishment of the death penalty. Dershowitz spent the following two weeks at the Library of Congress, dressed in his old suit, worried about the stains and dust from the sixteenth and seventeenth century books he was diligently analysing. The outcome was a 50-page document highlighting the inequitable application of the death penalty based on race. The memo further asserted that the death penalty should be interpreted as unconstitutional, violating the “cruel and unusual punishment” language of the Eighth Amendment.

The memorandum was taken unchanged, and distributed to the other justices. Although its reasoning was not officially adopted by the court, Justice Goldberg incorporated much of the memorandum into a famous dissent. Finding support from two other justices – William Brennan and William Douglas – the dissent indirectly encouraged a series of appeals over the following years. Eventually, the court outlawed the use of capital punishment for rape and robbery, and in 1972, suspended the death penalty altogether, albeit for a short period of time. The effect was thousands of spared lives, due in no small part to the writings of a 24-year-old Alan Dershowitz.

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