Clerks of Court
The Judiciary Act of 1789 authorized the Supreme Court and the judge of each district court to appoint a clerk to assist with the administration of federal judicial business in those courts. The clerk for each district court was to serve also as clerk of the corresponding circuit court. The Judiciary Act required each clerk to issue the writs summoning jurors and “to record the decrees, judgments and determinations of the court of which he is clerk.” The clerks quickly assumed a broad range of other functions relating to the administration and operation of the judiciary, such as screening the writs and other documents submitted by litigants in the federal courts to ensure that they complied with legal requirements and court rules; supervising jury selection; drawing copies of the courts’ records and making those records available to the parties; and keeping track of the names, signatures, and character references of the attorneys admitted to practice in the federal courts. Congress added several non-judicial duties as well. The clerks recorded naturalization petitions pursuant to the Naturalization Act of 1790 and accepted claims for copyright protection of printed works under the terms of another act of the same year.
Following the practice in colonial and state courts, the clerks collected fees from litigants for their services, and the clerks retained these fees as compensation in lieu of a salary. Shortly after passing the Judiciary Act, Congress prescribed that the fees in federal proceedings would be the same as those allowed for the supreme court of the state in which the respective federal court sat. In 1841, Congress limited the annual amount of fees the clerks were allowed to retain to $4,500 and required that any surplus be turned over to the Treasury Department. The following year, the clerks’ maximum annual income was lowered to $3,500, and clerks were required to submit biannual reports of their fees to the Secretary of the Treasury. (In 1849 the newly created Department of the Interior assumed supervisory responsibility for the clerks’ accounts.) In 1853, Congress enacted a uniform schedule of fees for clerks, thus eliminating a major source of regional disparity in the cost of litigating in the federal courts. When the circuit courts of appeals were established in 1891, the clerks of those courts were given a fixed salary but their counterparts in the federal trial courts continued to collect fees, even after the marshals and U.S. attorneys of those courts were placed on salary in 1896. In 1919, the clerks of the district courts finally became salaried officials.
The Judiciary Act was silent on the question of the tenure of the federal court clerks, but in 1839 (Ex Parte Hennen, 13 Pet. 225) the Supreme Court rejected a clerk’s challenge to his removal from office by a district judge and declared that each clerk served at the pleasure of the judge or judges of the appointing court.
In 1870 the Department of Justice was established and assumed responsibility for supervising the clerks and their accounts. Until the establishment of the Administrative Office in 1939, clerks provided the Department of Justice with statistics on filed civil cases and the number of criminal prosecutions brought in the federal courts. With the creation of the Conference of Senior Circuit Judges (later the Judicial Conference) in 1922, and the requirement for annual reports to the conference from the district judges, clerks gained the principal responsibility for compiling and reporting detailed information about the scope and nature of the federal judicial docket in their respective districts.
Most recently, the clerks have overseen the implementation of automated systems for docketing, case-filing, and document retrieval. While these functions, along with the supervision of the modern jury system and the management of an ever-increasing body of court personnel, are now shared with the circuit executives, the responsibility for managing the documentary records of the federal courts remains that of the clerks.
Messinger, I. Scott. Order in the Courts: A History of the Federal Court Clerk’s Office. Washington, D.C.: The Federal Judicial Center, 2002.
Judicial Administration and Organization