Supreme Recruits: Max Etchemendy Recounts His Time Clerking for Justice Anthony Kennedy

This is Part 2 in a series spotlighting V&E’s former Supreme Court clerks. To read the introduction to the series, click here.

It’s safe to assume that not many people discuss the Magna Carta with their bosses. But for V&E senior associate Max Etchemendy, who clerked for Supreme Court Justice Anthony Kennedy from 2013 to 2014, talking through the provisions of the Magna Carta was nothing out of the ordinary.

In fact, Etchemendy says some of the highlights of his clerkship involved early morning meetings with Justice Kennedy when they would chat about law, philosophy, and history — from Plato’s metaphysics to the enduring influence of the Magna Carta.

“To share the history of our Anglo-American legal tradition with one of the justices on the most influential and powerful court in the world was really special,” Etchemendy said.

From an early age, Etchemendy wanted to pursue a career that would make a positive impact on the world. That goal would lead him to law school and ultimately to Justice Kennedy’s chambers.

After graduating from Stanford University with a B.S. in symbolic systems and a B.A. in philosophy, Etchemendy worked briefly in marketing before deciding that his verbal skills and his ability to craft compelling arguments were better suited for a legal career.

While studying at Stanford Law School, the dean at the time, Larry Kramer, recommended that Etchemendy clerk. Etchemendy went on to secure a clerkship with Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit.

“I was always interested in more academic, theoretical aspects of law, so the Court of Appeals was a good place for me,” he said.

After completing his clerkship, Etchemendy entered the highly competitive race for a Supreme Court clerkship and Justice Kennedy made him an offer. The experience would turn out to be the most valuable professional year he has had to date. At the same time, he described the clerkship as daunting.

“You’re part of the process as the Court is resolving these incredibly important and difficult cases. And you’re involved in helping produce opinions that will set nationwide precedents,” he said. “It’s a lot on the shoulders of a young person just starting a legal career.”

Among the most high-profile cases during Etchemendy’s year as a SCOTUS clerk was the landmark Hobby Lobby case. Justice Kennedy was among the majority that ruled that requiring closely held corporations to provide insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners is unlawful because it violates the federal Religious Freedom Restoration Act.

“Justice Kennedy’s concurring opinion reflected much about his distinctive approach to the law,” Etchemendy said.

“He filed a very short concurring opinion. He noted some of the limitations on the scope of the decision, and also why the issue was important in light of certain longstanding constitutional values. It’s a very Justice Kennedy thing to do,” Etchemendy said. “I think one of the great things about Justice Kennedy is that he really cares very much about seeing all sides of an issue and perceiving the underlying, competing values that make cases important to people.”

When it was time to plan his next step, Etchemendy decided V&E was the right fit for a number of reasons. The firm was already on his radar screen thanks in part to V&E Appellate partner Jeremy Marwell. Moreover, the relatively small size of V&E’s Appellate practice meant he would likely have more opportunities to shine early on.

Sure enough, Etchemendy’s instincts were correct. Since joining V&E in 2017 – he completed a PhD in philosophy following his Supreme Court clerkship – he’s been involved in numerous Supreme Court cases, including Quarles v. United States, which Marwell recently argued before the Supreme Court.

Etchemendy had a rare opportunity to argue a case before the en banc Eighth Circuit, which unanimously overruled a contrary Eighth Circuit precedent and ruled in his client’s favor.

“It was a great win,” he said.