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November 01, 2013

An Interview with Clerk of the Supreme Court William K. Suter

By Peter M. Koelling

William Suter served as the 19th clerk of the U.S. Supreme Court for more than 22 years prior to his retirement in August 2013. He is a graduate of Trinity University in San Antonio, Texas, and Tulane University School of Law. From 1962 to 1991 he served in the U.S. Army. He rose to the rank of major general and was the acting Judge Advocate General of the Army when he retired and joined the Court.

Peter M. Koelling: The clerk’s office is where everything comes first. Have the filings with the Court remained steady or have they changed over time?

William K. Suter: When I came here about 22 years ago, cert. petitions, which are the meat of our business, we got about 2,000 per year that were paid. Paid petitions have a printed brief and pay a $300 filing fee. These are usually from a law firm; from a state, county, or federal government; a business; or something like that. That number—2,000—has not changed in many years, going back to the ’70s until now—2,000 a year. The in forma pauperis cases are those where they can handwrite and they do not have to pay a fee; they have to meet the rules of the Court, but we relax the rules slightly. There are about 6,000 of those today. That number, when I came here, was about 3,000 22 years ago and now it’s 6,000, but it has leveled off in the last few years. There are a total of 8,000 petitions.

PK: Are the in forma pauperis petitions mostly from prisoners filed pro se?

WS: Of those 6,000 in forma pauperis petitions, roughly half are filed pro se and roughly half are prisoners, but they are not the same half. Many prisoners have attorneys under the Criminal Justice Act for federal crimes such as drug cases, and those attorneys are paid. Some prisoners have run out of time for getting their free attorneys and they are filing their habeas corpus petitions on their own. So that half and half is like a Venn diagram—there is overlap but not completely. We get pro se petitions filed here all the time by people that don’t have a lawyer, are not in prison, but that file their own cases. One interesting thing is every now and then one of these pro se cases is granted. Of the 8,000 petitions, we grant roughly 75 or 80 a year. This year, of the roughly 75 that were granted, two were filed by petitioners that did not have a lawyer: a fellow in Guam and a prisoner in Pennsylvania. They were civil cases. They were both granted. They have both been argued.

PK: Do you appoint an attorney once you have granted cert.?

WS: Yes, we appoint counsel to argue. I take two lessons out of all of this. One lesson is that lawyers are part of a great profession and we can appoint someone with their consent to brief and argue a case up here, and essentially not pay them, and we have hundreds of lawyers standing in line to do it. I don’t think the American public knows this; in fact, I don’t think the legal profession even knows this. They probably think people come up here to make a name for themselves, but they quietly take these cases and they do them and they do them very well. One of those fellows won their case and one lost their case this year. The second lesson is that there are only 2,000 paid petitioners and again that varies from 1,900 to 2,100 a year but roughly 2,000. That number has not changed for years and years, which means that lawyers are telling their clients that they have lost their case in the circuit and there is no need in taking their money and wasting their time. I think people would file here even though down deep they know there may be no chance at all. I call it a lottery mentality. Why not go for it and see what happens? You could take a case and write and file the petition and could make around $25,000, but lawyers do not do it. I think it is honest.

PK: I also think people do not realize how carefully the Court reviews each petition no matter who is filing it.

WS: I guess that is one more lesson; the Court looks very carefully at every petition. If the Court didn’t do it, how would we grant these pro se petitions? They are looked at very carefully. We accepted 75 this year and two didn’t even have a lawyer. This happens every four to five years. It tells me after all these years dealing with it, it is a very fair system. Our Court Rule 10 suggests we won’t grant unless there is an important federal question that has never been answered or a split in the circuits. Those are the two main reasons we grant a case. Most of the time neither of those are present and 99 percent are denied for good reason. If it’s there, they will grant it, but if it’s not there, they won’t grant it. It’s not really a mystery. Once you are on the inside and seeing how it works, it is not a mystery nor is it mechanical. It really depends on the question presented to the Court.

PK: How is your office structured in order to handle this volume?

WS: The main thing is we have case analysts; there is a supervisor over seven case analysts; sometimes they are called docketing clerks. They are highly trained paralegals and when the petition is filed, it is not a cert. petition until they say so. They have a checklist: Is it timely, is it this, is it that, does it meet all of the requirements? If it does, they give it a number and put it on the automated docket and things start from there. The petitioner notifies the respondent. He or she has 30 days to respond and everything then is forecast on the electronic docket, which was built by our IT people and is designed just for the Supreme Court. It is a very sophisticated system and it’s viewable; what you need to see is on our website. It gives you defaults when you start typing in; for example, “solicitor general”—it fills it all out for you. Ultimately, when everything is ready, the petition goes up into the chambers and they have a system. On Fridays, typically, they meet in conference and decide to grant or not grant the cases. We are not a part of that. Our job ends when they send the filings up to the chambers. The cases go up and then we get the “grants” and “denies.” We get the list ready on Friday and by the next Monday morning the order list is released and goes up on the website and everybody can see it.

A lot of documents are exchanged with the circuits and with most of the circuit courts this is done electronically. They will know if their cases are granted or denied and they can keep their own dockets up to date. The biggest difference since I came here, 22 years ago, is the automation. It is absolutely incredible. It took the staff back in those days—when I first came—late on Friday afternoon to get those order lists ready, and now it takes us until maybe 2 o’clock. It is amazing what the system does. Our IT people here are just fantastic. It took several years to build it, but it just might be the best system that I have ever seen.

PK: Some courts are starting to go through this process so I think people would be interested in learning what was the process of automating? How did you start?

WS: When I came here, we had a pretty antiquated automation system. It was difficult to use. We did not have a website. We did not have e-mail. But 22 years ago most court systems hadn’t caught up with technology. What we did here was forecast what we would need. Not tomorrow, but next year and the next year. The staff here in the clerk’s office is a wonderful staff—good thinkers—and they decided what was needed and what was not needed. Just having a big computer sitting in front of you was worthless.

PK: Yes, they can become $3,000 yellow sticky holders if you can’t or don’t know how to use them or if they are not helpful.

WS: You have seen that happen. You have to know what you need and what you do not need. We gave our information technology office the guidance of what we wanted and then clerk’s office staff worked with them very closely developing the program. We would tell them that we do not need or that we need this capability and they would do another test. Finally, when it was ready, we were able to field it; you don’t want to field it until it’s ready to go and I give staff in this office and the IT staff great credit for getting it there. They put it all together and it’s worked beautifully and we are still tweaking it with updates and changes, and so forth. If we want to make a change today, we can do it in house. We do not have to go outside and get a contract. I am not critical of that system, but one of the problems with that is you bring in a contractor and they don’t know your business.

PK: I think sometimes you see where a vendor starts to drive how work is going to be done based on their products and their ideas as opposed to having the court’s structure and procedures driving the process.

WS: They don’t know what a court does. That is why I am one of those in favor of in-house IT because they are right next door. I know all of them and they know what we do. Our problem early on for me was we had to get rid of this old system. The old docket system wouldn’t be maintained much longer by the contractor and we had to get a new one. Again it took about four years to build it. This is not a done-overnight thing and you just can’t buy one off the shelf. No other court operates as we do. We have a very fine staff and good people smart enough to know how to use it, when to use it, when not to use. It might not be hard, but I’ve seen in the Department of Defense horrible mistakes; people went out and said ready, fire, aim. You are right; you can have a great big machine there that you can use to put stickers on and it’s not doing anything or giving you the wrong information or you just don’t need it at all.

PK: As you were building it, did you look at what other courts were doing?

WS: I belong to the National Conference of Appellate Courts Clerks; it includes both state and federal appellate courts clerks; there are about 175 of us. We have a Listserv where we talk to each other all of the time. We have a meeting every summer. Those have been a big help to a lot of us with ideas. When we started developing our online docket here, we flew down to Raleigh because the North Carolina Supreme Court had a good system. The clerk there is Christie Cameron Roeder; she is a lawyer and is well known throughout the legal community in North Carolina. She, her deputy, and their tech people met with our tech staff, the deputy, and myself, and we learned so much. We learned some things we did not want to do and some things we wanted to do. I do not know what that would have cost to hire someone to go do that for us. We did it ourselves because they had a great clerk down there and she helped us.

PK: I think we are seeing more and more real professional staff in courts that have that kind of capability.

WS: I tell you, during my two decades here the professionalism of court administrators has risen up; some of the states are just doing great work out there. They are saving money and make the operations more efficient. I was very interested in what they were doing because we get cases from the state supreme courts and we should know what is going on in the state systems. It has been very valuable to participate in that organization and walk away with good ideas.

PK: When the next clerk comes on board, where do you think the improvements are going to come from?

WS: There will be some issues with the records that come out of the lower courts. We don’t ask for the records of lower courts unless the cert. is granted in a case. When they send the record up here, it could be one folder, some motions, or some judgments. You get cases from some courts and there may be 20 boxes of materials. A few states out there are not transcribing their records. They just have a disk and if you want their records, here it is. Where is the part we want? We might only be looking at the instructions to the jury. That might be the whole case on that disk. That might be the only part we need. We haven’t had a real problem, but as records become more paperless, we need to work with these courts effectively. What is going to be the problem next year and the year after? My successor—I will tell him I have a list of things already; here are some things to be on the lookout for and be thinking about.

PK: Would you say this automation is something you have done to make the courts more efficient?

WS: Well, first I wouldn’t say I have done it, but I was here when it happened. It is not a one-person show. You have to have a lot of people and the ideas. IT could come down here and say, what do you want? You have to tell them and show them. That’s just not me. I may have some ideas, but it’s going to be everyone working with them very closely.

PK: Changing the subject a little, one of the judges I work with wanted to ask, what can judges do to make the work of the clerk easier?

WS: Starting at the top here, I could not ask for anything more from the Court. I have worked with 16 justices. I have worked with a number of court officers. They all have been totally supportive. I mean with budget, the willingness to try a new program, to test this, to try that. I think the one thing a clerk has to have is support. That’s the main thing. Go talk to the clerk—that’s one thing. Just a walk through occasionally or something like that makes a difference. Our Court here is very visible. They know who we are and what we do, so we feel very close to them. You have to walk in their moccasins for a few miles and maybe just learn a lot about them and see what they need. It’s not just about budgets. Budgets are important, I know, and our budget here is a good budget and the Court is careful. I think the whole federal judiciary and states as well are careful with what they do. There’s not that much. I have looked at figures on what percent of the federal budget goes to the judiciary; it’s pretty small.

PK: Mary McQueen says that judicial budgets are a rounding error in the Department of Defense.

WS: We are talking about one tail of an aircraft. If the clerk and the clerk’s office feel supported, they can come up with new ideas. Not long ago one of the employees in the file room was watching television and saw a postal service ad about their priority shipping boxes—“if it fits it ships”; that makes it cheaper. Now, we have done away with 40 percent of our paper in the clerk’s office, but we still have paper. If some prisoner in California files his habeas corpus, it doesn’t go to district courts; he sends it here. We can’t throw it away. Those are court documents; we have to return them. The postal service came out and did a study and found out that it is really worthwhile to use them. They give us the boxes and we use that service. Now we save like $2,000 a month. If you can get the employees to be thinking—and in here they are always thinking; they are always coming up with new ideas—that is what helps the court. It’s not me; it’s them. I saw that commercial a million times and never thought of using it here. The man who is shipping those records did though.

PK: I know many of the clerk’s offices have a concern, because there are so many self-represented litigants, that people want legal advice from the staff. Is this an issue for you?

WS: Not too much. I know the states have very strict policies that differentiate from helping someone and giving legal advice. Here we do not have a book telling our clerks how to do it, but all the case analysts come here and stay here a long time. They are very good. We have a policy that we just don’t give legal advice. They know where to draw the line and they tell people. We also have on our website good forms to use. I believe in forms because it helps people who do not know what they are doing, especially indigents. Just fill in the blanks and do your best and we will treat it like a petition if it meets the requirements. I just have a sense, it’s the people that come to the courthouse and are eyeballing some assistant clerk asking for help that are the problem. You want to help them so much that you start giving them legal advice. Since a lot of our petitioners don’t come here like they do in the state courts, we don’t have the same problem. They are filing from Nevada; here time and distance help us.

PK: I think you are exactly right. It’s when you are face to face that it is hard to say no. For a lot of people, that clerk is the face of justice for their community. People don’t like to say no and it’s a hard line.

It is interesting to me that we are seeing across all appellate courts more and more self-represented litigants in the appeals process. Do you think the use of forms assisted in that?

WS: I don’t know that forms are creating more petitions for us. I think they are creating petitions that are easier to read and for the law clerks to read and the solicitor general’s office to read. They would rather have a form filled out than something handwritten or typed up that doesn’t make any sense. I don’t think that created any more. Again, the numbers have gone from 3,000 pauper cases to 6,000 in my time here, but it’s leveling off.

PK: Do you have any advice for lawyers who appear or might appear before the Court?

WS: I have a little booklet on our website. Go to our website and it’s called Guide for Counsel in Cases to Be Argued Before the Supreme Court of the United States. It’s about 15 pages. It’s a resource and there are nuggets for the dos and the don’ts. I have been here for over 1,700 arguments, and I take notes. There are things that happen, really good things and things that are not so good, and I put it in that little book. Why not share it with everyone? It’s on the website. It’s good for any state appellate court.

PK: So if a historian in the future writes a history of the court and looks back on the General Suter era, what will she write?

WS: Well, of course, the only thing I want written is he did his best. I think Voltaire said, “Whoever serves his country well has no need of ancestors.” So, I served my country well and that’s all you can expect. That and having a nice family are the most important things. We didn’t set the world on fire here and a lot of things that happen are good. I had wonderful officers to work with, staff; the justices were fully supportive. For one year during my Army career I was the chief judge of the Army Court of Criminal Appeals. My clerk was a wonderful retired colonel, Bill Fulton, who had served in three wars; he was a JAG officer and served twice as a combat arms officer. He was enlisted infantry in World War II, an infantry officer in Korea, and just a wonderful gentleman. He was my clerk and I sort of took him for granted. He was that good. He was better than good. Everything was done. I didn’t know all he was doing and I thought all clerks worked that way. When I came here, I learned I had to be Bill Fulton. He was the most dedicated person I have ever seen. I thought, I want to be like him. Keep my head down, keep my flak jacket on, and do the best that I can.

PK: What are you going to miss?

WS: Since I went into the Army in 1962 right out of law school, my wife and I always looked forward to the next thing and didn’t look backward. We moved so much. We lived everywhere. I think this time it will be that we are going to enjoy what we are doing next. And I won’t say I am going to miss this big office. I just remember the good times and try to think I did the best that I could and hope the Court continues the way it is and the way it’s always been. It is one of the finest institutions that any society has ever created. I really love this Court and what it stands for and what it does. I know it will continue to be that way. I know we all will be replaced, and I know that someone will come in here and replace me and do a better job. I won’t be looking back saying, oh gosh, I miss this or that. I am just not like that. I am an optimist.

PK: Thank you for your time and for your service.