Ben Aguiñaga at the U.S. Supreme Court
Ben Aguiñaga has been enjoying some well-deserved downtime in recent months.
Since wrapping up his clerkship for U.S. Supreme Court Justice Samuel Alito during the 2018-19 term, the 2015 LSU Law graduate took a three-week road trip with his wife and puppy over the summer, and has spent recent weeks at home working to perfect pork belly, brisket and ribs on his new smoker.
“I was surprised to learn that the court has its own smoker—complete with a gavel atop the smokestack,” he says when asked if anything about his experience at the Supreme Court came as a surprise. “I may or may not have smoked my first briskets and pork belly on it.”
Aguiñaga was also pleasantly surprised to find just how friendly and cordial everyone is at the Supreme Court, from the justices and clerks to police officers and elevator operators.
“It was not uncommon for me to wander into random clerks’ offices to snack on their Oreos or Jolly Ranchers and chat about a case,” he says. “It was also not uncommon to run into a justice and exchange pleasantries and thoughts on the court’s work. In a way, it was like wandering about the LSU Law Center to talk to classmates or professors about a class discussion or assigned reading.”
Of course, a highly coveted clerkship at the Supreme Court isn’t all smoked brisket and Jolly Ranchers. The work is as intense as it is important, and the attention to detail it requires can be all-consuming at times.
“What you see in the U.S. Reports is the result of hours and hours and hours and hours of rigorous work,” he says of his daily work alongside Alito, whom he describes as “a lawyer’s lawyer, a judge’s judge, a servant’s servant” and “one of the most humble and kind humans I’ve ever met.”
As his downtime draws to a close and he prepares to join Jones Day at its Washington, D.C. office this fall as an attorney in its Issues and Appeals group, Aguiñaga—who’s only the second LSU Law graduate to ever clerk for a Supreme Court justice—recently reflected on his time at the nation’s high court.
In an extensive and enlightening Q&A, Aguiñaga discusses his day-to-day duties as a clerk; shares step-by-step advice to law students who aspire to follow in his footsteps; expands on how his experiences at the LSU Law Center and subsequent clerkships prepared him to work for Justice Alito; and talks about some of the “truly memorable experiences” he had at the Supreme Court—including locking eyes with Arnold Schwarzenegger and seeing Justice Sonia Sotomayor playfully pinch Justice Neil Gorsuch.
How were you informed that you had been selected to be a clerk for U.S. Supreme Court Justice Samuel Alito during the 2018-19 term, and what was your immediate reaction?
I was working at the Department of Justice late one Friday afternoon when my phone rang. I answered and Justice Alito’s assistant told me that the justice apologized for the delay in getting back to me—it had been seven months since my interview—but he wanted to offer me a clerkship.
I remember stumbling over all three letters of the word “yes,” before I hung up the phone and darted across the hall to a bathroom to splash my face with cold water. I then walked to our conference room, J. Edgar Hoover’s old office, and sat at the table where I said a quick prayer of thanks and tried to process what had just happened. It was a surreal moment.
Give us some insight into your day-to-day duties as a clerk and how they evolved as the term progressed.
A clerk typically has about four buckets of work over the course of the term. At first, your only responsibility is to wade through hundreds of cert petitions that pile up over the summer. You’re looking for clean vehicles that meet the court’s cert criteria and might pique a justice’s interest. And cert work remains ongoing as new cert petitions are filed during the term.
A little later you encounter the second bucket of work, which is helping your justice prepare for oral argument. This often involves writing detailed memos, laying out the arguments in your cases and suggested ways to resolve the cases, and ultimately talking through the cases with your justice.
After arguments, you add a third bucket of work, which is the opinion drafting process. Clerks’ involvement varies from chambers to chambers, but at a general level, a clerk often helps his or her justice with the intense research and writing that goes into a majority, concurring or dissenting opinion. What you see in the U.S. Reports is the result of hours and hours and hours and hours of rigorous work.
And then the fourth bucket of work is the emergency docket—sometimes motions for stays of executions and sometimes requests for stays of lower court injunctions or other similar actions. These are usually time-sensitive, high-stress matters that begin and end in short order. By about November, you’re going at full steam in all four buckets of work—and the workload increases and increases until the last opinion is released the following June.
How closely were you able to work with Justice Alito, and what were the greatest lessons you took from him?
Law clerks typically interact with their justices on a daily basis, especially as the end of the term draws near. You might dart in and out of your justice’s office multiple times in one day as you finesse an opinion, or you might have to call your justice late at night to brief him or her on an execution. There are many situations that demand prompt, constant and clear communication.
I was lucky to watch Justice Alito approach this demanding job with the utmost care and dedication. He is one of the most humble and kind humans I’ve ever met. He poured hours and hours into his work until he was sure that he had arrived at the correct result. And despite the often-consuming nature of the court’s work, he cares deeply about his clerks and made sure that we were able to balance work responsibilities with our personal lives.
He’s a lawyer’s lawyer, a judge’s judge, a servant’s servant. It was a tremendous honor to learn from his example the importance of humility, dedication and compassion in the judicial role.
Prior to your clerkship with Justice Alito, you clerked for then-Texas Supreme Court Justice Don R. Willett and Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. How did those experiences prepare you to clerk at the U.S. Supreme Court?
Judge Willett and Judge Jones are exceptional jurists to whom I owe a great debt of gratitude for the trust and confidence they placed in me, both in hiring me and in recommending me to Justice Alito.
When I began each of those clerkships, I knew that I would have to work extremely hard to meet the standards of excellence that you can see in their opinions. And it was in one-on-one meetings in their offices as we went over draft opinions and memos that I began to refine my views on what separates good writing from bad writing, good reasoning from bad reasoning and so on.
They are very kind, thoughtful people who thankfully didn’t hesitate to set me straight. Of course, I’m not a perfect writer or thinker and never will be, but at least when I arrived at Justice Alito’s chambers, I had eliminated a few bad habits—all thanks to my early judicial mentors.
Was there anything about the experience of being a clerk at the U.S. Supreme Court that surprised you?
On a serious note, I think many people think of 5-4 cases when they think of the court, and thus they tend to assume that the court as an institution must itself be bitterly divided. As an empirical matter, 5-4 cases are nowhere near a majority of the court’s docket.
But even beyond the numbers, I was struck by how friendly and cordial everyone was—from the justices to the clerks to the police officers and elevator operators. It was not uncommon for me to wander into random clerks’ offices to snack on their Oreos or Jolly Ranchers and chat about a case.
It was also not uncommon to run into a justice and exchange pleasantries and thoughts on the court’s work. In a way, it was like wandering about the LSU Law Center to talk to classmates or professors about a class discussion or an assigned reading.
And if you ever have a chance to witness oral arguments at the court, you might catch clear examples of the collegiality—Justice Breyer whispering a joke to Justice Thomas who’ll laugh uproariously, or Justice Sotomayor pinching Justice Gorsuch. It happened!
On a less serious note, I was surprised to learn that the court has its own smoker—complete with a gavel atop the smokestack. I may or may not have smoked my first briskets and pork belly on it.
What were your favorite cases to work on during your term with Justice Alito?
Unfortunately, confidentiality rules prevent me from disclosing what I worked on, but I can tell you about a few of the more memorable public-facing moments of the term.
One occurred during the partisan gerrymandering oral arguments when Arnold Schwarzenegger was escorted to a seat about eight feet from mine. We locked eyes, he nodded at me, and I felt like I could retire happy right then and there.
And there were several other notable events during the term unrelated to the docket: I saw the president and first lady when they came to the court for Justice Kavanaugh’s investiture, and again when they came to pay their respects to Justice Stevens; I took a picture with the Stanley Cup, which came for a visit after the Capitals historic season; and I stood in line on First Street outside the court late one night to pay my respects to President George H.W. Bush, who was lying in state at the Capitol Rotunda. These were truly memorable experiences.
You grew up in Pearland, Texas, and earned your undergraduate degree at Baylor University. Why did you decide to come to LSU to earn your law degree?
I was born in Metairie, and a part of me always thought that it would be great to head back to Louisiana later in life. When LSU offered a good scholarship, I thought this might be the right opportunity.
During my LSU research, I discovered Michelle Stratton’s story—how she made history by becoming the Law Center’s first graduate to clerk at the court. I was under no pretense that I could do anything like that, but it was inspiring to see evidence that LSU graduates could compete on a national stage.
And I would be lying if I said that the chance to witness good football firsthand didn’t factor into my decision. As it turns out, Michelle would become a dear friend and I would live close enough to Death Valley to walk its parking lots at night while reading my outlines and listening to oral arguments.
During your time at the LSU Law Center, you served as production editor of the Louisiana Law Review and a board member of the Moot Court program, among other activities. What courses, activities and experiences at LSU best prepared you for your clerkships?
Every writing-intensive experience at LSU made me a better clerk than I otherwise would’ve been. Typing furiously but carefully during time-limited exams was excellent practice for cranking out analyses in emergency memos. Writing briefs for moot court was excellent practice for dissecting cert-stage and merits briefs. And writing a law review note was excellent practice for producing well-researched, well-supported and well-structured memos and draft opinions.
My constant advice to undergraduate and law students is to write as often and as well as possible; that’s the only way to become a better writer.
Were there particular faculty members at the LSU Law Center who especially inspired and mentored you?
Among many lessons I learned from other LSU faculty members: Professor Devlin taught me to withstand withering questioning; Vice Chancellor Smith taught me that humor is perfectly acceptable in law; Professors Coenen and Sullivan gave me an infectious enthusiasm about the law; Professors Brooks and Simino spent hours pushing me to be a better advocate; and Vice Chancellor Cheney Joseph, a wonderful man gone too soon, taught me that there was no hypothetical too absurd for Special Forces Heidi.
You are just the second LSU Law alumni who has clerked for a U.S. Supreme Court justice. What would your advice be to current LSU Law students who aspire to become the third?
Clerking at the court feels like a lightning strike kind of experience. There are hundreds of brilliant young attorneys—file cabinets full of stunning applications—who could do an outstanding job. But Vice Chancellor Diamond once told me that even though it’s almost impossible to be struck by lightning, you can at least increase your odds of being struck by lightning—say, by walking with a metal rod held high in an open field during a pouring rainstorm. The challenge is setting yourself apart and getting your application pulled for a close look.
My mentors passed down four goals to me. Your first goal should be to earn the best grades possible. Even if you were coming from Harvard or Yale, you would need the best grades to maximize your potential.
Your second goal should be to clerk for lower court judges who have previously sent clerks to the court. It’s not impossible to clerk at the court coming from a non-feeder judge, but remember, this is all about increasing your odds.
Your third goal should be to befriend any former clerks you come across—professors, summer associate mentors and the like. They can help you go where they’ve been.
And your fourth goal should be to do good work, and be kind and humble wherever you go. Your reputation is important and it precedes you, especially in these kinds of endeavors. I can’t tell you that doing these things will guarantee you a clerkship, but it can at least increase your odds!
What have you been doing since the end of the 2018-19 U.S. Supreme Court term, and what might your next career step be?
My wife and I kicked off the break by taking a three-week road trip with our golden retriever puppy, Cooper—who has asked that I note his Instagram account: cooped__up. We put 4,300 miles a rented truck as we traveled through the Shenandoah Valley to Charlottesville, Outer Banks, Asheville, Nashville and Little Rock, and then Tulsa and Houston to visit our folks.
I have also missed Texas barbecue, so I recently bought a smoker and ordered a cord—fancy jargon for a heck of a lot—of oak. Over the past few weeks, I have been smoking brisket, ribs, pork belly, mac ‘n cheese, and several other heavenly items. In the fall, I’ll join Jones Day in D.C. as an attorney in their Issues and Appeals group.
