Marisa C. Maleck
2016 Temple Bar Scholar Report
The Temple Bar scholarship provided us scholars with a once-in-a-lifetime experience that I will never forget. That our journey in London happened to coincide with the Brexit fallout and our own fast-approaching Presidential elections was a fantastic coincidence. Both events enabled us and our English compatriots to take stock in our shared histories and cultural experiences—as well as our diversions—and how they had led our countries to embrace a nationalistic populist sentiment. I will forever remember those conversations and experiences that highlighted our similarities and differences, which have continued past the program’s end.
The first week in London was incredibly fast paced, but we still had time to discuss and experience our different approaches to law. What stands out for me most that week was our diverging views about the role of religion in law—and in particular how our countries viewed the establishment of a formal religion and the free exercise of religion. I was struck by how our countries appear to take the exact opposite approach.
With respect to the establishment of a formal religion, one perhaps obvious point is that England has an official state church, and the United States forbids it. How this played out was quite interesting for me. Although our countries have a similar tradition of celebrating the opening of the legal year, the ways we celebrate that tradition could not be more different. I was immensely surprised that the Opening of the Legal Year in London took place in a church, and was celebrated through prayer and hymns, with much pomp and circumstance. It was unlike anything I had experienced in the United States—at least outside a church-sanctioned event!
But with respect to the free exercise of religion, I was equally taken aback by conversations about religious freedom in England, which struck me as less protected than in the United States. One lawyer told me he was horrified by our religious-freedom cases involving photographers and bakers who felt a religious objection to providing service in certain circumstances. Another explained a rule called the cab-rank rule, which requires barristers to accept any work in which they profess themselves competent to practice, at a court at which they normally appear, and at their usual rates—regardless of their feelings toward the particular matter at hand. When asked if a British barrister who was pro-life would be required to represent a pro-choice position, the resounding answer appeared to be “yes.” I cannot imagine that a similar rule would be popular in the United States!
During the second and third weeks, we were assigned to individual barristers’ chambers. Again, the similarities and differences were immediately apparent. As to the similarities, it appeared to me that a lot of the cases were similar to what an associate in the United States would work on. The cases I worked on or observed included challenges to agency rules, complex commercial cases, and a case involving a covenant not to compete. I also enjoyed attending a hearing on one of the most high-profile cases in London, involving how Brexit would be effectuated. The barrister I shadowed represented Scotland’s interests, and it felt like I was among legal luminaries back home, who were arguing a blockbuster case.
As to differences, there were many. I was impressed by the barristers’ sense of independence. Unlike firms where work is divided up between partners and associates, barristers are independent contractors who take the work they can get. Barristers also seemed to have a very different style than their American counterparts. Compared to American lawyers, barristers seemed to give much more informative, rather than persuasive, arguments. I was also tickled by the fact that barristers can act as “deputy judges,” as a way to decide whether to apply to be a judge themselves. One of the barristers I shadowed even invited me to sit on the bench with him as he issued a judgment as a “deputy judge.”
Our final week was particularly special for me. That week, we spent observing the work of the Supreme Court of the United Kingdom. We felt incredibly welcomed by the Justices and their judicial assistants. Again, there were many similarities and differences.
As to similarities, the sentiments of civility and respect struck me as quite similar to sentiments that the United States Supreme Court bar shares. And the judicial assistants appeared to share the same sort of special relationship that American clerks have with their Justices.
There were also three main differences that stood out to me. First, the style of argument was extremely different than what I was used to. Arguments are much longer and comprehensive in England than in the United States. Whereas cases seem to be routinely “won” or “lost” on the briefing in the United States, I had the sense that the U.K. Justices had not made their minds up until after argument. Second, the judicial assistants appear to have less of a substantive role than do American judicial law clerks. The U.K. justices were quite shocked to hear that American law clerks often write the first draft of an opinion, which they call judgments. Third, in some ways, the U.K. Supreme Court felt much more transparent. For example, we were asked to attend a meeting in which a panel of the Justices determined which cases to hear—a meeting we never would have been invited to when we were clerking on the United States Supreme Court.
That last week was also special to me because I have continued to be able to have conversations with some of the U.K. Supreme Court justices and other contacts even after the program. For example, Lord Hodges accepted my invitation to attend the Federalist Society’s annual dinner; he was able to learn more about our legal system and hobnob with our best and brightest legal minds. I also have been in contact with Lord Wilson, who has written me a handful of emails about Brexit and the election of President Trump. I was also recently interviewed by BBC radio regarding the Supreme Court nomination process.
Ultimately, the Temple Bar program has left me with a much better understanding of the British legal system, a sense of our countries’ intertwined, yet divergent histories, wonderful contacts, and life-long friendships. I will forever be grateful to the American Inns of Court for the opportunity to make such wonderful connections, to the British Inns for their hospitality, to the barristers whom we shadowed for their generosity, and to the Justices of the U.K. Supreme Court for their warmth. I am also grateful for the opportunity to have strengthened my relationships with my fellow Temple Bar Scholars, whom I still talk to weekly.
Marisa C. Maleck is law clerk to Associate Justice Clarence Thomas. She attended the University of Chicago Law School, where she received her J.D. with honors. She was a 2010 Hinton Moot Court Competition Semi-Finalist, and was awarded the Thomas R. Mulroy Prize for Appellate Advocacy as well as the Ann Watson Barber Outstanding Service Award. Maleck is a graduate of Amherst College, where she earned a bachelor’s with honors in political science and women and gender studies. She received several prizes for debate and public speaking. She has also clerked for Judge William H. Pryor, Jr., of the U.S. Court of Appeals for the Eleventh Circuit, and Senator John Cornyn of the U.S. Senate Committee on the Judiciary.