The Highest Court in the Land

The Highest Court in the Land

A converted storage room on the top floor of the Supreme Court building has become a place for justices and their clerks to get a run in—and a source of a great many tales.
July 25, 2018

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Karl Tilleman first encountered Michael Jordan during the 1983 Pan American Games, when he poured in 28 points to Jordan's 20 in Canada's second-round loss to the U.S. At the 1984 Olympics in Los Angeles the two met again: Jordan put up 20 to Tilleman's 10 in another Canada defeat. A 6'2" guard out of the University of Calgary who was picked by the Nuggets in the fourth round of the '84 NBA draft, Tilleman made his final Olympic appearance in '88, scoring 37 points against Spain with 10 three-pointers, a record he still shares with Carmelo Anthony.

But by the time of those Games, Tilleman was more concerned with nolo contendere than no-look passes. He was a second-year law student at BYU and could travel to Seoul only by rearranging his course schedule. After graduating in the spring of '90, Tilleman spent a year clerking on the Ninth Circuit Court of Appeals before obtaining the holy grail for a young attorney: a clerkship at the Supreme Court.

Of roughly 1,000 applicants, three dozen young lawyers—up to four for each of the nine justices, plus an extra for the Chief Justice—obtain the highly prestigious positions each year. Former clerks populate white-shoe law firms, Congress, academia and the federal court system, including the Supreme Court, where four current justices clerked. Tilleman worked for both retired Chief Justice Warren Burger and Justice Clarence Thomas in 1992–93 (known in courtspeak as October Term 1992). But while Tilleman had hung up his Canada jersey, his new job involved more basketball than expected.

Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court. A pair of plexiglass backboards (wood until 1984) hang from the ceiling, which is just 14 feet and four inches above the playing surface, a pristine hardwood installed during a 2015 renovation. At roughly 78 feet long and 37 feet wide, the court is smaller than the regulation 94-by-50 feet, with walls hugging the sidelines and the eagle of the Supreme Court seal spreading its wings across midcourt. Near the entrance a sign warns: PLAYING BASKETBALL AND WEIGHT LIFTING ARE PROHIBITED WHILE THE COURT IS IN SESSION.

If the gym seems an afterthought, that's because it was: The building's architect, Cass Gilbert, designed the room for storage. At an unknown point in the 1940s—the building opened in 1935—an unknown person transformed it into a gym. According to the 1965 book Equal Justice Under Law: The Supreme Court in American Life, Cass Gilbert Jr. suggested the makeover, but the Supreme Court curator's office hasn't verified that account. Early on, Justice Hugo Black used the room as a makeshift tennis court, but basketball has become the house game. Security guards, cafeteria workers, clerks, librarians and the occasional justice head upstairs for ragged games of pickup. The original floor was concrete and unforgiving, the room cramped and the ceiling far too low—but that has only added to the quirky charm of what's known as the Highest Court in the Land.

As a clerk Tilleman was thrilled to have easy access to hoops. He started playing regularly with his fellow clerks and others, even though the low ceiling neutralized his long-range shooting. But more than anything, he wanted to run with Thomas. For months he badgered the justice to no avail.

Finally, in April, Thomas agreed to a game with his clerks, who included future Fox News host Laura Ingraham (of "shut up and dribble" fame). They were thrilled, especially after the justice showed he could ball. Thomas, who joined the Court in 1991, was 44 at the time, and Tilleman was struck by the skill of the most junior member. But after a half hour of hooping Thomas grabbed his left leg and fell to the ground, writhing on the floor. This is not happening, Tilleman thought in horror.

Illustration by Art Lien

Thomas had torn an Achilles tendon. He underwent surgery, and the following week he was hobbling around the building on crutches. As the term came to an end, Thomas and Tilleman had a picture taken together. The justice told the photographer to make it a full body shot, so that it would include his walking cast.

"Karl," he whispered to his clerk with a smile, "I want you to remember for the rest of your life what you did to me." Tilleman, now a partner at a law firm in Phoenix, has the portrait hanging in his office, above his computer—next to a picture of himself being guarded by Michael Jordan.


For those who balled on the Highest Court as clerks, it's no doubt sweet to check back in as a Supreme. During October Term 1993, Brett Kavanaugh—the D.C. Circuit Court of Appeals judge and President Trump's nominee to fill the seat of the retiring Anthony Kennedy—not only clerked for Kennedy but also stood out for his smooth jump shot and athleticism. "For a bigger guy like me, it was great having him on the team," says Stephen Smith, a law professor at Notre Dame and a Thomas clerk that term. "I could just get rebounds and throw fast breaks to him. That minimized the amount of times I had to go up and down the court."

If confirmed, Kavanaugh may soon be receiving outlet passes from the much taller Neil Gorsuch, the newest member of the Supreme Court and a clerk for Kennedy and Byron White in 1993–94. During last year's confirmation hearing, Senator Ted Cruz of Texas wanted to know whether Gorsuch had been "lucky enough" to hoop with White. (Says Cruz of his own defensive style, "The hand was a part of the ball, and so was the elbow, the arm and even the jaw.") Gorsuch said the justice, who had recently retired, would sometimes play H-O-R-S-E, and that his signature shot was a backward fling from the free throw line.

At the time of his appointment in 1962, White was best known by his nickname, Whizzer. The runner-up for the Heisman Trophy while at Colorado in '37, where he was a three-sport star, he earned the first of his two NFL rushing titles three years later for the Lions while on leave from Yale Law School. Eight months after his appointment SPORTS ILLUSTRATED called White "the greatest athlete of his time," which made him, beyond reasonable doubt, the preeminent sportsman among members of the Supreme Court.

Illustration by Art Lien

While White tried to distance himself from his gridiron glory days, he remained ferociously competitive as a justice and often joined clerks for games of two-on-two. In an email, Chief Justice John Roberts, a clerk for William Rehnquist in 1980–81, describes White as "solid granite, with very large hands that enabled him to control the ball with ease." (As for his own game, Roberts puts a self-deprecating spin on former Arkansas coach Nolan Richardson's credo, calling it "forty minutes of what the hell.") Sheer physicality distinguished White's approach even more than his incisive passing and gifted shooting. The 6'1" justice would do anything to get a rebound, and his elbows bruised many a hapless law clerk.

"He liked nothing more than to give you an elbow if you were close to that wall and knock you into it, almost like a hockey check," says Richard Cordray, who clerked for White in 1987–88. "Then he would laugh. And you needed to laugh too, to take it in stride."

During October Term 1971, White injured himself on the Highest Court and was forced to use crutches for a few days. But he didn't want his clerks, several decades his junior, to go easy on him. Kevin Worthen, who clerked for White in 1983–84, was initially perplexed by how he should go about guarding a nearly 70-year-old Supreme Court justice. Worthen is 6'5" and played center at the College of Eastern Utah, so he defended White softly at first, irritating his boss. "It was pretty clear that my effort to sort of lay off a bit and give not only my boss, but someone who I esteemed, a little extra space and be a step slow intentionally was not something he wanted to have happen," says Worthen, now the president of BYU. "He was a little bit aggravated that it was happening."

Adds David Kendall, another White clerk and a longtime lawyer for the Clintons, "He would not have respected you if he thought you were intimidated by him." White brought a similar attitude to the courtroom, where he aggressively questioned lawyers, wrangling their arguments and developing a reputation as a menacing presence on the bench. Whether enrobed on the second floor or in sweats on the fifth, White defied stereotypes—of the neatly ideological justice, of the dumb jock.


Cordray not only had the honor of facing White, who served until 1993, but also current justice Elena Kagan, who was appointed in 2010. Kagan clerked for Justice Thurgood Marshall in the 1987–88 term, when Cordray served under White. Cordray, the former Consumer Financial Protection Bureau director who's now running for Ohio governor, was one of the best players that year, but he was determined to facilitate scoring opportunities for his teammates, including the 5'3" Kagan, whom Marshall called Shorty. "I would follow Rich around, and he would set a pick," she says. "And I would think, 'O.K., Rich has now set a pick for me. I will try to hit a jump shot.' And very occasionally, I would do that."

Of the 113 justices in history, Kagan is only the fourth woman. Even today, clerkships are disproportionately given to men: In 2017, the National Law Journal found that since '05, twice as many males as females had received one of the coveted spots, even though half of law students are women. Men have likewise controlled the basketball court. Kagan felt comfortable playing as a clerk because several other women also played, while Robin Lenhardt, who clerked for Justice Stephen Breyer in 1996–97, participated in otherwise all-male games during her term. A forward in high school, Lenhardt held her own. Renee Lettow Lerner, a clerk for Kennedy that year, competed with only women. Penda Hair, who worked under Justice Harry Blackmun in 1979–80, asked to join in after some initial hesitation.

"I was conscious of the place of women in the building and in the legal profession," Hair, a civil rights attorney in Washington, recalls. "So I did not think that there should be an all-male basketball game. I knew that I wasn't as good a player as they were. They graciously said yes."

Sandra Day O'Connor, appointed in 1981 as the first woman justice, understood that male dominance of the building extended to the fifth floor. She started reserving the gym for a morning aerobics class, encouraging other women in the building to attend. Kagan enjoyed playing basketball, so she stuck to hoops—until she fell victim to the gym's unyielding surface. Kagan landed awkwardly and hurt her leg, sending her to the hospital and a crowded injured reserve. (Kagan recalls Chief Justice Rehnquist, who enjoyed playing tennis with his clerks, had to scramble for subs for his doubles game that term because of injuries sustained in basketball.)

One day, hobbling down a hallway, she encountered O'Connor, who asked what had happened. Kagan said she had hurt herself playing basketball.

O'Connor shook her head sadly and replied, "It would not have happened in aerobics."


James Duff played on the Highest Court in the Land for the first time more than four decades ago, but its familiar, idiosyncratic confines still beckon him. Duff—a walk-on to Kentucky's basketball team in 1971, the last year freshmen were ineligible to play varsity—never clerked, but he's been around the building as an aide and a counselor. "Jim Duff could shoot the eyes out of the basket," recalls Paul Shechtman, a Burger clerk in 1979–80. Once, Duff executed a perfect bounce pass to Justice White between two opponents on a fast break. White laid it in with his left hand. "That was a great pass, Duff!" he shouted back. Says Duff, "It was just a pass, but it's one I'll never forget."

In 2015, Roberts appointed Duff as the director of the Administrative Office of the U.S. Courts, the agency responsible for supporting and managing the federal judiciary. Duff previously held the position from 2006 to '11, and when he restarted the job, one of the first places he visited was the Highest Court. He still returns on Friday nights from time to time, shooting alone. Memories come flooding back. He thinks about bonding with Justice White over basketball, forging lifelong friendships through hours of games.

For generations, the gym has served as a sanctuary from pressure, long hours and partisan politics. In the spring of 1980, Bill Murphy, who worked for Blackmun, organized a tournament among all nine chambers, with each team composed of four players, at least one of them a woman. The Blackmun chambers, sporting green HAB'S 79ERS shirts (a nod to the justice's initials), faced Burger's squad in the final. On court before the game, which Blackmun watched from one of the few available spectator spots along the walls, the Blackmun clerks unfurled a giant BEAT THE CHIEF banner. Burger's chambers narrowly prevailed, however, behind stellar play from clerk Neil Eggleston, who would later become President Obama's White House counsel. He would also marry one of his opponents that day: Penda Hair.

"That was a very stressful time of year around the court, because the arguments are winding down, but there's a backlog of opinions to be worked on and circulated and to be completed," Murphy says. "But [the tournament] was a nice diversion and distraction."

For some, the haven of the Highest Court was never more welcome than when the justices adjudicated capital cases. On those evenings Noah Feldman, a clerk for Justice David Souter in 1998–99, would go upstairs, often alone, to shoot as he waited for documents, decompressing and considering the gravity of the moment. "It's impossible to overstate the seriousness of how that is taken by all the personnel of the Court, including the clerks. And rightly—a human being's life is in the balance," Feldman says. "Your cortisol is pounding, you want to do everything right and make sure justice is done. And when that was going on, you really needed a break."

On the fifth floor ideological differences dissipate; strict constructionists don't square off against living constitutionalists, nor do liberals take on conservatives for the right to Kennedy's (or, now that he's retiring, Roberts's) swing vote. "It was sort of a place where everyone took off their uniforms and you couldn't tell who was who," says Nikolas Bowie, who clerked for Justice Sonia Sotomayor in 2015–16. "You were just playing basketball."

In our current political reality, when the judicial branch often feels like the federal government's last bastion of normality, the Highest Court in the Land embodies Washington as many Americans wish it were: nonpartisan, impartial and amicable. There are no alternative facts in basketball—there are winners, and there are losers. There is justice.

 

 

 

HOLE YARDS PAR R1 R2 R3 R4
OUT
HOLE YARDS PAR R1 R2 R3 R4
IN
Eagle (-2)
Birdie (-1)
Bogey (+1)
Double Bogey (+2)