Adam Liptak’s New York Times article on Supreme Court law clerks suggests that there is something troubling about the fact that the career paths of conservative and liberal Supreme Court justices’ clerks have diverged over the last 20 years. Liptak is a knowledgeable and generally fair-minded legal reporter. In this case, however, I think he is portraying a positive as a negative.
Justices have always tended to hire clerks who reflect their own ideological leanings. Prior to the 1980s, the ideologies of different judges’ clerks didn’t differ much because there was little ideological diversity among the justices themselves. Until the appointment of several conservative justices by Ronald Reagan and George H.W. Bush, William Rehnquist was the only clearly conservative justice on the Court; Chief Justice Warren Burger was also conservative on some issues, but far from consistently so. Richard Nixon and Gerald Ford did appoint some justices that were more pro-prosecution on criminal law than the Warren Court was. But most of the Nixon and Ford appointees stayed well within the liberal post-New Deal consensus on other big issues before the court, such as race, gender, property rights, federalism, regulatory law, and the like. Two of the five Nixon-Ford appointees (Blackmun and Stevens) actually ended up voting with the Court’s liberal bloc on nearly all the important cases that came up in the 80s and early 90s. It isn’t surprising that these Republican justices ended up hiring clerks with views that didn’t differ much from those of the Court’s most liberal members. Scalia, Thomas, and — to some extent — O’Connor and Kennedy, were much more willing to challenge liberal judicial orthodoxies, and tended to hire more genuinely conservative clerks. Thus, the divergence between those clerks’ later careers and the ones pursued by clerks for liberal justices.
In my view, the pre-1980s Supreme Court had serious flaws in its jurisprudence, and was badly in need of greater ideological diversity. I say that even though I oppose important elements of the conservative judicial ideology that came into prominence at that time. Liptak writes that the new polarization “is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.” Perhaps not. But the previous homogeneity wasn’t politically neutral either. Rather, it reflected the fact that for several decades after World War II, the Supreme Court was dominated by a relatively homogeneous center-left legal elite that hired clerks cast in its own image. As both right of center and left-wing radical critics pointed out, that establishment’s view of the law was far from incontestably correct, nor was it free of political bias.
Today’s Supreme Court has many flaws. But it is a better institution for having more genuine ideological and jurisprudential diversity among its personnel. I admit that that judgment is partly based on my strong disagreement with many of the positions taken by the old-style liberal justices. But even if you think that their decisions were mostly correct, that is very different from claiming that they represented judicial decision-making that was somehow apolitical in a way that today’s more conservative justices and clerks are not; most of the earlier decisions closely tracked the political preferences of the moderate and liberal legal elites of the time. And even aside from the merits of particular decisions, it’s also important to recognize that small ideologically homogenous groups are vulnerable to deliberative pathologies such as groupthink that are less likely to arise in more diverse settings.
Andrew says:
Looks like this Liptak article has already been the subject of another VC post today. In any event, I suggest that Congress immediately drop consideration of the health plan, to address this pressing crisis regarding ex-clerks. :-)
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December 21, 2009, 10:15 pmMark Field says:
I’m not sure I understand this point. In, say, 1976, diversity ran from Rehnquist, Burger, and Powell on the right through Stevens in the middle to Brennan and Marshall on the left. Today the diversity runs from Ginsberg and Stevens on the “left” through Thomas, Scalia, Roberts and Alito on the right.
How can you claim that there’s more diversity today? The variance was clearly greater in 1976 than now. What your post did was re-define Justices like Burger and Stevens from “conservative” and “moderate conservative” to something else. That’s just moving the goalposts.
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December 21, 2009, 10:26 pmgladiator says:
I wonder, too: do judges do themselves a disservice by hiring mostly clerks who agree with them? Why make your own workplace an echo chamber, when you can have some energetic kid try and poke holes in your arguments every once in a while. I clerked for an appeals court judge who was way more liberal than me and found it worked well, at least for me. Few cases were ideological though; whereas at the supreme court, most decided cases are. Perhaps at that level, you get people smart enough to grapple with the other side’s arguments; but the combat with your colleagues is so constant that you want your own chambers to be a little nook you can rest in.
Just speculating.
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December 21, 2009, 10:28 pmDave N. says:
I agree the Court has moved right — but that is because the left block on the Court was much further left than the left block is today.
Justices Douglas, Brennan, and Marshall were all much further left than the Justices who replaced them, which says quite a bit since Justice Douglas was replaced by Justice Stevens and Justice Brennan was replaced by Justice Souter.
The difference I see is that prior to the appointment of Justice O’Connor, there really were three blocs on the Supreme Court: the liberals (Douglas, Brennan, and Marshall); the conservatives (Rehnquist, Burger, and on many issues, White); and the centrists (Stewart, Powell, and Stevens). Now there are two (with Kennedy usually voting with the conservatives but not always).
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December 21, 2009, 10:37 pmIlya Somin says:
I’m not sure I understand this point. In, say, 1976, diversity ran from Rehnquist, Burger, and Powell on the right through Stevens in the middle to Brennan and Marshall on the left. Today the diversity runs from Ginsberg and Stevens on the “left” through Thomas, Scalia, Roberts and Alito on the right.
My point is simple: Burger and Powell were much closer to Brennan and Marshall than Scalia, et al., are to Ginsburg and Stevens. That was not true of Rehnquist, but until the 1980s, he was isolated on the Court.
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December 21, 2009, 10:52 pmOrin Kerr says:
Mark Field,
I assume Ilya’s point is greater diversity in the sense of more evenness in the number of Justices to the left of American center versus to the right of American center. But I agree with you that the Court today is less ideologically diverse than it was in the early 1970s in the sense of broadest range of views from far-left-to-far-right. I also suspect that whether you see ideological diversity as a good or a bad thing on the Supreme Court has a lot to do with whether your views are underrepresented. .
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December 21, 2009, 10:54 pmIlya Somin says:
I agree the Court has moved right — but that is because the left block on the Court was much further left than the left block is today.
Justices Douglas, Brennan, and Marshall were all much further left than the Justices who replaced them, which says quite a bit since Justice Douglas was replaced by Justice Stevens and Justice Brennan was replaced by Justice Souter.
I don’t think that’s true. There are very few issues where Souter and Stevens vote further to the right than Brennan, Marshall, and Douglas (e.g. — they would only almost completely ban the death penalty, as opposed to abolishing it totally). And these are balanced by other issues (e.g. — gay rights, national security law), where the new liberal justices are further to the left than their predecessors.
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December 21, 2009, 10:54 pmMark Field says:
Heh. This seems to be corollary 1 to Kerr’s Law.
I can see how that might be true, though I think it’s a more complex argument than the post lets on. And in light of his response at 10:54, I’m not sure he’s actually making that argument anyway.
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December 21, 2009, 11:02 pmSoronel Haetir says:
And even here things break down because in addition to conservative/liberal there is the formalist/pragmatist split. The two sets, at least on the current court, are basically independant in terms of membership determination.
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December 21, 2009, 11:41 pmDavid Nieporent says:
I think that’s pretty much correct. In a vacuum, one might say that Souter and Stevens are much less liberal than Brennan/Marshall/Douglas; if you simply used a time machine to flip them, Souter and Stevens would not have voted the way B/M/D did, and B/M/D would be trying to push the law rapidly to the far left now much faster than Souter/Stevens actually did. But court decisions aren’t made in a vacuum; stare decisis means that court decisions build on a pre-existing framework. Souter and Stevens were building from the precedents set down in the 60s and 70s.
In other words, relative to existing precedent, B/M/D were far more liberal, but in absolute terms, Souter and Stevens were just as liberal.
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December 22, 2009, 12:00 amtvk says:
I find it at least mildly problematic that on one hand you are praising ideological diversity, but on the other you see it as a positive that Justices are hiring only those clerks that agree with them–thereby ensuring that their chambers and internal discussions will be subject to precisely the “deliberative pathologies” that you find problematic.
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December 22, 2009, 2:17 amtvk says:
There are very few issues where Souter and Stevens vote further to the right than Brennan, Marshall, and Douglas.
I think you are being misled by availability bias, in that you simply forgot how much more liberal Brennan and Marshall were. A very quick search on Wikpedia for cases where Brennan and Stevens were on opposite sides shows these examples (I think every one is clearly a blockbuster), and I am sure a more detailed search will find much, much more:
1. San Antonio Independent School District v. Rodriguez.
2. UC v. Bakke.
3. Employment Division v. Smith.
4. Strickland v. Washington.
5. FCC v. Pacifica.
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December 22, 2009, 3:14 amIn Defense of Supreme Court Law Clerk Polarization | Liberal Whoppers says:
[...] post: In Defense of Supreme Court Law Clerk Polarization Share this [...]
lgm says:
Yes, it’s natural that conservative justices choose conservative clerks. Statistical evidence of that would not have prompted such a negative article from Liptak. What makes the article negative is the polarization in career paths post clerkship, not judicial ideology. Conservatives are under represented in academia while liberals are under represented at conservative think tanks and in Republican administrations.
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December 22, 2009, 8:57 amSara says:
I agree that Ilya makes a poor historian, at least, to these older eyes. The Warren and Burger courts were more ideologically diverse than the Robert’s court but at least there are woman on the Court now, unlike when I graduated from law school.
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December 22, 2009, 9:33 amASlyJD says:
Ah, yes, because our breasts make huge difference in the thought processes of the court.
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December 22, 2009, 9:38 amSara says:
What? I don’t think you read what I wrote about ideological diversity.
For me its enough to know “[your] breasts” don’t exclude you from the Court. Although, the fact that you want to discuss them probably should.
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December 22, 2009, 10:03 amMJG says:
While Ilya praises the “greater ideological diversity” on the court, his other comments reveal what he means: “Finally, we have some Justices (and their clerks) who agree with me/get it right.” (No pun intended.)
That’s totally fair, the argument that the court is ideologically “better” than it was because there are fewer liberal lions and the centrists have moved right (and Rehnquist has been joined with other steady right-leaning votes). But it’s not the same thing at all as praising “ideological diversity.”
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December 22, 2009, 10:16 amwm13 says:
It certainly isn’t disturbing that presidential administrations are politically skewed to one side or the other. The president and his executive branch appointees are meant to represent a particular political point of view. The same goes for ideologically-oriented think tanks. It’s arguably disturbing when judges’ chambers are so skewed, depending on one’s views of how law operates.
It’s definitely disturbing when avowedly non-partisan societal institutions, such as the universities, the armed forces, the evangelical churches, etc. become so skewed, because it weakens the ties of trust and sympathy which permit a diverse and contentious people to live together in harmony.
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December 22, 2009, 11:34 amArthurKirkland says:
Prof. Somin appears to prefer, and perceive greater ideological diversity among, the Supreme Court as more Republican-appointed, conservative justices are seated.
Can anyone predict what a libertarian would prefer?
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December 22, 2009, 12:48 pmASlyJD says:
Sara,
I just don’t think that having a woman on the court is that much of an accomplishment, especially compared to the far more important accomplishment of being able to attend law schools and get jobs. I’m more interested in ensuring women have equal opportunity to go for the brass rings. Worrying about whether they get them — that out of the millions of lawyers at least one (or two, or three) of the nine most important is a woman — is valuing equality of outcome more than equality of opportunity.
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December 22, 2009, 1:56 pmSara says:
I find that most unfortunate and am certain that no woman in my law school class, the class of ’66, would agree.
I do apologize for my intemperate remark earlier but if you only demonstrated a realization of what a different world it is from then, I would be much less provoked.
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December 22, 2009, 2:43 pmlgm says:
If conservative lawyers were as sharp as liberal lawyers, they would be equally represented in law school faculties. You are calling for affirmative action by law schools. In all my years in academia (science, not law) I have never witnessed nor heard of a good department voluntarily choosing the diversity candidate over the one deemed best qualified in terms of core competence.
I’m sympathetic to your argument. But I want to make clear what you are saying.
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December 22, 2009, 2:45 pmDuffy Pratt says:
What I’m missing here is what any of this discussion has to do with the career paths that clerks chose after they finished clerking. This is what the post said that it was about, but that subject seems to have little to do with the post itself, and basically nothing to do with the comments.
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December 22, 2009, 3:28 pmPLR says:
Libertarians would not require a court at all, they would simply contract with Guido for enforcement of legal obligations, and the stronger Guidos would eventually drive out the weaker.
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December 22, 2009, 4:47 pmTodd Peppers says:
I wanted to take issue with a few points discussed above. First of all, it’s simply not true that the “Justices have always tended to hire clerks who reflect their own ideological leanings.” In the early decades of the 20th century, law clerks were many stenographer clerks and cite checkers. The ideology of the law clerk was simply not relevant. It was not until the 1950’s and 1960’s, as law clerks assumed more and more substantive job duties, that ideology arguably became relevant.
Second, I would challenge the statement that “prior to the 1980s, the ideologies of different judges’ clerks didn’t differ much because there was little ideological diversity among the justices themselves.” Leaving aside the point regarding justice ideology, one could argue that ideology was relevant — if a moderate justice had a chamber of four conservative or four liberal law clerks, and that justice had delegated the review of cert. petitions, the drafting of bench memos, and the drafting of judicial opinions to the law clerks, then one could legitimately argue that clerk ideology was important because of the concern of inappropriate levels of law clerks influence over decision-making. For those of you who roll your eyes whenever you hear claims of law clerk influence, I would humbly direct you attention to the following law review article: Todd C. Peppers & Christopher Zorn,Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DePaul L. Rev. 51 (2008).
Finally, the law review article that Liptak discussed raises the question of whether the justices are hiring ideological clones as part of a plan to send these former clerks out into the world to pursue the justices’ ideological preferences. This itself is an interesting twist on the clerkship model. It’s one thing for former clerks to burnish the justices’ legacy with sappy law review testimonials and gushy biographies; it is something else for former law clerks to be (directly? indirectly?) to be pursuing policy changes on behalf of their former employers. I don’t know if this is truly happening, but it’s an interesting claim.
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December 22, 2009, 7:14 pmCJColucci says:
at least there are woman on the Court now, unlike when I graduated from law school.
Ah, yes, because our breasts make huge difference in the thought processes of the court.
I can think of (but won’t name — I have to work in this town)a number of male judges about whom that is true.
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December 22, 2009, 7:40 pmTweets that mention The Volokh Conspiracy » Blog Archive » In Defense of Supreme Court Law Clerk Polarization -- Topsy.com says:
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wm13 says:
And if liberals were as patriotic as conservatives, they would be equally represented among military officers. But they aren’t.
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December 22, 2009, 10:01 pmRandom Commenter says:
“If conservative lawyers were as sharp as liberal lawyers, they would be equally represented in law school faculties. ”
And if blacks and hispanics were as sharp as whites, they would also be equally represented in various white collar occupations. Because it’s not as if there are other possible explanations. Right?
It amazes me that people think academic departments behave differently from, say, machine shops. People tend to hire those who look and think as they do.
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December 23, 2009, 1:17 amCorpus Juris Vol. I » First Thoughts | A First Things Blog says:
[...] “In Defense of Supreme Court Law Clerk Polarization” (Professor Ilya Somin @ The Volokh Conspiracy) [...]