For more than 20 years, one man led the United States Supreme Court. He never sat behind the bench. He never donned a black robe. He never authored a decision. But he was there. If you worked at the Court, you knew him. If you practiced before the Court, you knew him. Fueled by an incomparable passion to serve his country, General William K. Suter followed his nearly 30-year service to the U.S. Army by serving as the 19th clerk of the U.S. Supreme Court.
Recently, I had the privilege to sit down with General Suter to discuss his life and time at the Court. While he describes the clerk’s role as one of “being responsible for the legal business of the Court,” it is clear upon talking with him that he transformed the position into much more. Indeed, at the Supreme Court’s retirement celebration and portrait unveiling for General Suter, Chief Justice Roberts remarked that General Suter’s “tenure as Clerk can be fairly described as momentous, even when measured against the long history of the Clerk’s Office.” Chief Justice John G. Roberts Jr., A Salute to the General: William K. Suter (July 12, 2013), www.scotusblog.com/2013/07/a-salute-to-the-general-william-k-suter/. (Suter retired from the Court on September 1, 2013.) How so, you may ask. General Suter humanized the Court for everyone who walked through its doors.
D.C. by Way of Ohio, Kentucky, and Texas
Suter was born in Portsmouth, Ohio, and later moved to Millersburg, Kentucky. He attended Millersburg Military Institute until moving to Texas for college after securing a basketball scholarship. During his time at Trinity University in San Antonio, Texas, General Suter became involved in the Reserve Officers’ Training Corps program, which took him to Fort Hood, Texas, for a summer. During his time at Fort Hood, Suter met and served alongside Private Elvis Presley—yes, that Elvis Presley. Ask him about his service with “The King” and Suter will tell you that “only in America can you serve with Colin Powell and Elvis Presley.” (Suter later served as staff judge advocate with Colin Powell in the 101st Airborne Division.)
After graduation, Suter attended Tulane University School of Law. He was named to the Order of the Coif and was a member of the Tulane Law Review board of editors. He graduated from Tulane in 1962 and was admitted to the Louisiana State Bar. For the next 29 years, he served in the U.S. Army, rising to the rank of major general and serving as the acting judge advocate general of the army when he retired in 1991.
Not ready to slow down, on the eve of his retirement from the army, Suter was searching for his next challenge. At the suggestion of his wife, Suter applied for the position of clerk of the Supreme Court. One day after he retired from the army, he was sworn in as the 19th Clerk of Court of the Supreme Court of the United States. “After learning I got the job, Chief Justice Rehnquist asked me when I could start. I told him that I would be retiring from the army in 10 days; I asked if I could take a month off and then start. He looked at me for a moment and said, ‘So, you’ll be here tomorrow?’ I told him that I couldn’t start before I retired from the army in 10 days. He said, ‘We’ll see you then.’ So that’s when I started.”
“Tradition and Discipline”
When asked about the Court, Suter explained that “the Court thrives on two things: (1) tradition and (2) discipline.” The tradition of the clerk’s position dates back to the Judiciary Act of 1789, which granted the Supreme Court authority to appoint a Clerk of Court. Act of Sept. 24, 1789, ch. 20, § 7, 1 Stat. 73, 76. In 1790, the Supreme Court selected John Tucker as its first clerk. Tucker took the prescribed oath to “truly and faithfully enter and record all the orders, decrees, judgments and proceedings of the said court.” He served only one year, but he laid the foundation by putting in place a system for organizing the Court’s early documents and “initiated a tradition of excellence, integrity, and service to the Bench and Bar.” Roberts, supra.
Suter carried on those early traditions by using his military training to streamline processes at the Court, introduce technology into those processes for the betterment of the bench and the bar, and offer sage guidance to all practitioners before the Court. Indeed, he initiated the Court’s electronic docket system and authored an annually updated guide of dos and don’ts for practitioners appearing before the Court. Suter joked that some of the lawyers who frequented the Court would wait in anticipation for the release of the update to see if they “made the book.”
Tips from “Behind the Curtain”
While the Court may thrive on tradition and discipline, “behind the curtain, the justices are real people,” and Suter knew them well. Suter recalled one argument that involved a standing issue—“about as dry as you can get.” Chuckling as he recalled a conversation with Justice Souter following the argument, he said, “Both sides took their full 30 minutes to argue the case. Justice Souter came up to me after the argument and said, ‘Bill, it’s days like today that make me wish I went to medical school.’” Turning more serious, Suter said, “A good tip to remember is, when the justices lean back, arms folded across their chest, they’re finished. And so should you be.” Good advice for any courtroom lawyer.
Indeed, as clerk of the Supreme Court, Suter had a front-row seat to more than 1,700 oral arguments. He is often quoted as saying that the three keys to effective appellate advocacy are “preparation, preparation, preparation,” but I asked him what the fourth key is. Without hesitation, he responded, “Know your record and your client’s business.” (Technically, those are the fourth and fifth keys—but who’s counting?) He then shared with me that, during one argument, one of the justices asked the lawyer arguing the case why a motion for summary judgment was not filed with the trial court. “The lawyer responded that he didn’t know because he didn’t try the case. Wrong answer! You have to know your record—regardless whether you tried the case or not. Again, it goes back to preparation. You have to anticipate the questions from the justices.”
General Suter also shared two stories of lawyers who got it right:
Paul Clement, a former U.S. solicitor general and frequent practitioner before the Supreme Court, would argue without notes. I recall, during one argument, Justice O’Connor asked him on which page of the record could she find the passage he was referencing. He didn’t miss a beat; he responded, ‘Page 188, Your Honor.’ After his argument, I asked him how he knew that. His response was, ‘I knew she was going to ask me that.’ He had anticipated her question.
During another argument, Bruce Ennis, a First Amendment lawyer [and former legal director for the American Civil Liberties Union], was arguing a case on behalf of Coors Brewing Company. It was a labeling case, and Justice Scalia asked Mr. Ennis what is the difference between beer and ale. Mr. Ennis knew the answer even though it had nothing to do with the case—he knew his client’s business.
In case you are interested, ale is top-fermented and beer is bottom-fermented. The case was Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), and a transcript of the oral argument can be found at www.oyez.org/cases/1994/93-1631.
Good Judgment 101
During our conversation, Suter often commented on the “fine lawyers” he was fortunate to meet and work with while at the Court, Clement and Ennis among them. But he cautioned that, while technical skills are important, good judgment is the foundation on which all excellent lawyering is based. And good judgment comes from experience.
Good judgment can’t be taught in law school. There’s no “Good Judgment 101” course. You have to experience it, live it. Let me give you an example. Seth Waxman, a former U.S. solicitor general, appeared before the Court to argue a case. He was seated next to the podium while his opponent was making her argument. During his opponent’s argument, one of the justices asked, “What page of the appendix is that on?” The appendix had to be more than 700 pages. She starting flipping through the document and got flustered. Mr. Waxman happened to have it open to the correct page and discreetly put it on the lectern for her to see. That’s a class act. What’s more, I told this story during a luncheon attended by Justice O’Connor. I looked at her and said, “You probably didn’t even notice that.” She shot right back, “Oh, yes I did! He’s a fine gentleman.”
General Suter explained that good lawyering is much more than simply knowing the law. Good judgment, experience, and common sense are critical—regardless of whether you are practicing before the U.S. Supreme Court, or your state supreme court, or handling a discovery dispute with your opposing counsel. Suter stressed that good judgment promotes civility and professionalism. “Your opponent is not your enemy; he’s your friend. That’s not being naïve; that’s being an officer of the Court.”
“Real Life Heroes”
I was curious who Suter, a hero to many in his own right, considers as his heroes. Listening to the few stories he selected to share with me, it became clear that his heroes are defined by their ability to lead and serve humbly under pressure. For example, he recalled Justice Sandra Day O’Connor’s retirement. After 24 years of service on the bench, on July 1, 2005, Justice O’Connor announced her retirement. While she has been quoted as saying that she would have preferred to stay on the Court for several more years, she decided to step down to spend time with her husband, who had been diagnosed with Alzheimer’s disease. In a letter to then president George W. Bush, she wrote that her retirement would be “effective upon the nomination and confirmation of my successor.” Letter from Justice Sandra Day O’Connor to President George W. Bush (July 1, 2005), www.supremecourt.gov/publicinfo/press/oconnor070105.pdf. Although she expected to leave the Court prior to the start of the October 2005 term, the interim passing of Chief Justice William Rehnquist altered those plans. Prior to the chief justice’s death in September 2005, President Bush had appointed John G. Roberts to succeed Justice O’Connor on the bench. Upon the passing of Chief Justice Rehnquist, however, President Bush withdrew his nomination of Roberts as an associate justice and nominated him as chief justice to replace Chief Justice Rehnquist. It was not until October 31, 2005, that President Bush appointed then Third Circuit judge Samuel Alito to replace Justice O’Connor. Justice Alito was confirmed and sworn in on January 31, 2006—seven months after Justice O’Conner announced her retirement. Notwithstanding her personal struggles and the desire to spend time with her ailing husband, Justice O’Connor stayed on and served until Justice Alito was confirmed. Suter’s recall of these events is as detailed as it is fascinating. His respect and admiration for Justice O’Connor’s decision to remain on the bench until her successor was confirmed is clear: “Justice O’Connor does not get enough credit for her return to the bench post-retirement. She put her nation first. It is a story of a hero. She is a real-life hero.”
General Suter’s affinity for former Chief Justice William H. Rehnquist is also evident. When asked about his most memorable moments at the Court, Suter identified three very different moments. However, “the Chief’s” leadership is a common, integral thread woven throughout the fabric of his memories. First, he recalled the landmark case of Bush v. Gore. “That happens only once in several lifetimes.” Bush v. Gore politicized the Court perhaps more than any case in modern history. Yet amid the media circus (which Suter has not forgotten, nor lost his sense of humor over), politics, and other shenanigans that ran rampant at that time, Suter recalls the leadership of Chief Justice Rehnquist. “Chief Justice Rehnquist showed splendid leadership during the processing of Bush v. Gore. The case was handled expeditiously and fairly, without fanfare. The Chief and his colleagues did not wobble. They did their job.”
Second, less than a year later, on September 11, 2001, the United States endured four coordinated terrorist attacks by al-Qaeda. Recalling that “horrible, sad day,” Suter again described the calm, formidable leadership of his chief. “Chief Justice Rehnquist pulled everyone in a room together. He wanted everyone to be safe. He was a real leader.”
Finally, not even two months after the attacks of September 11, anthrax was found in the mailroom of the Supreme Court building. Recalling the discovery, Suter said, “Again Chief Justice Rehnquist got everyone together with the attending physician to educate, treat, and talk with the employees of the Court. There was no panic; just leadership by our Chief.”
“Stick to the Knitting”
Suter’s tenure with the Court will not soon be forgotten. His leadership, humor, practicality, and reverence for the high court is admirable. In his own words, he “stuck to the knitting”—also his advice for all future clerks of the Court. He understood his strengths and how to use them to benefit the Court and those it serves. Regardless of where we practice, perhaps it would do us all some good to follow General Suter’s example and stick to the knitting.