Today, we extend our earlier posts (here here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity.
In 1957 a young Arizona lawyer wrote an article in U.S. News and World Report entitled, “Who Writes Decisions of the Supreme Court?” Noting that Supreme Court clerks are “an intellectually high-spirited group . . . imbued with deeply held notions of right and wrong,” the author charged that, as a group, clerks were “to the left” of the typical American or member of the Court. Perhaps not intentionally, but “unconsciously” they slanted their advice to the Justices.
The author of the article, himself a recent clerk, was William H. Rehnquist. It is fair to say, in the recent words of another Supreme Court clerk, Kenneth W. Starr, “the role of the clerks is a hearty perennial of an issue.” For decades, observers have complained that clerks exert an unhealthy ideological influence on the members of the Court.
Our point is somewhat different: we argue that clerks have undermined the judicial character of the Court and fueled the celebrity status of individual Justices. The Court now resembles nine discrete law firms, each with a managing partner whose ego is stroked, and whose most arduous labors are often performed, by a cadre of bright and eager twentysomethings.
(In canvassing the rise of Supreme Court clerks, we rely heavily on Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Clerks (2006), and Artemus Ward & David Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the Unite States Supreme Court (2006).)
The first Justice to employ a clerk was Horace Gray, who took his seat in 1882. At least until 1919, however, most clerks were assigned work that would today be regarded as secretarial. Justices Brandeis, Holmes and Gray departed from this rule to some extent, attracting top law students, typically from Harvard.
Until the mid-1940s, clerks played a growing, but still relatively limited role. Chief Justice Stone was the first Justice to hire two law clerks, but the practice was not immediately followed. Few Justices permitted their clerks to take the lead in opinion writing, but all of them eventually tasked their clerks with drafting certiorari memoranda, most expected clerks to edit opinions, and some required bench memoranda.
During this period, some Justices seem to have forged closer bonds with their clerks than with their colleagues on the Court. A Frankfurter comment is noteworthy in this regard: “They are, as it were, my junior partners—junior only in years. In the realm of the mind there is no hierarchy. I take them fully into my confidence so that the relation is free and easy.” Law clerks made perfect colleagues, it seems, or at least better colleagues than the other Justices.
In the 1960s, Associate Justices still had only two clerks each, but a rising flood of petitions and appeals soon led most Justices to hire a third. In 1972, Justice Powell requested an additional clerk, pleading his own lack of background in criminal and constitutional law. Soon, they were all entitled to have four clerks.
The importance of the clerks over the past few decades is highlighted by J. Harvie Wilkinson’s comment that “Justice Powell often said that the selection of his clerks was among the most important decisions he made during a term.” It is nowadays taken for granted that clerks play a large role in the opinion-writing process. One Justice reportedly told a clerk who asked for elaborate guidance in drafting an opinion, “If I had wanted someone to write down my thoughts, I would have hired a scrivener.”
With their growing prominence, it should not be surprising that the clerks have attracted a measure of criticism. It has long been alleged that clerks exert too much influence on how Justices cast their votes and craft their opinions. A less disputable claim is that clerks play an influential role in determining which cases the Justices choose to decide. By their own admission, many Justices seldom review certiorari petitions, relying instead upon the summaries and recommendations of the clerks.
The effect of the clerk filter is likely to increase the selection of cases in areas most familiar and interesting to recent graduates of prestigious law schools—especially constitutional law. Such clerks, notwithstanding their intelligence and diligence, have little awareness of the issues genuinely vexing the legal community, which are not always the kind of cases that roil the legal academy. That fact, plus a prevailing norm that sternly punishes clerks who “improvidently” recommend certiorari grants, while imposing no tax on errors in the opposite direction, inevitably biases the selection process toward cases whose significance is apparent even to recent law school graduates.
As employed today, clerks have contributed to the erosion of the Supreme Court as a cohesive judicial institution. Justices rarely communicate directly with one another about the cases before them; exchanges are typically mediated through clerks. Clerks, moreover, do not see themselves as employees of the Court, but of individual Justices. Clerks fuel the cult of celebrity that infuses the Court, and not just through loyalty and gratitude to the Justice who was wise enough to select them from a very impressive pool of candidates. Incredible as it may seem, some clerks cravenly or strategically flatter their Justices in a manner wildly inconsistent with the clerk’s private views. Frankfurter may have taken his clerks fully into his confidence, but one may doubt that the clerks always reciprocated.
The simplest solution would be to strip the Justices of all their clerks. We think such a step is unnecessarily radical. Instead, we propose that Congress reassign the clerks (perhaps in reduced numbers) to the staff of the Court’s Librarian. The Librarian would choose and supervise the clerks, who would not be permitted to draft legal opinions. Individual Justices would submit research requests to the Librarian, and the results of the research would be shared with all the Justices. Law clerks would thus serve more as servants of the Court than of individual potentates within the Court.
As with our other proposals, our intent is not to punish the Court or its members, but to encourage the Court to operate more like a judicial body and less like an academic faculty cum super-legislature. The job would no doubt become more challenging, not only compared with current practice, but also compared with the job of a circuit judge. We think it should. It might cause Presidents to select their nominees on the grounds of legal ability more often than they do now. It might even encourage some mediocre lower court judges to refrain from campaigning for a seat on the high court. The Justices might revert to an older practice of having open discussions with each other, rather than with their hand-picked votaries. And it would almost certainly deter some Justices from remaining on the Court after they have lost the capacity to do much more than hire talented law clerks.
Widmerpool says:
How about if you also chain the Justices to their desks and feed them on bread and water until they finish their opinions? Please be practical.
January 22, 2010, 9:09 amCVMe says:
I don’t understand how the proposed reform would address the cert. pool problem, assuming there is one. Taking away clerks would not give the Justices the time to independently evaluate 8,000 cert. petitions in a year.
Assuming the proposal were enacted, what would prevent the Justices from hiring four unpaid interns to do what clerks do now? Given the $250K bonuses Supreme Court clerks get from private law firms, I doubt the lack of salary would significantly lower the number of applications.
January 22, 2010, 9:24 amsteve s says:
One of the best pieces I have seen on this blog. Resolving the Librarian issue then becomes key. Should this person be chosen by the Court or an outside body? Since the SCOTUS members have lifetime memberships, letting them choose the librarian would reinforce existing bias. I would tend, therefore, towards letting either Congress or the President appoint said Librarian for four year terms. That would more closely reflect national trends. I would also suggest that the Librarian have pretty significant prior judicial experience as a requirement built into any legislation.
January 22, 2010, 9:24 amdcperson says:
It might be worth considering restraining the judges in on the authority they can delegate, but keeping individual clerks so they can choose people who they can trust, get along with, and interact with on a regular basis. For example, instead of letting judges delegate decision-writing to a clerk (a result that frequently ends up in some messy opinions), require the judge to do the first draft. Clerks could still influence the decision by discussing the issues with the judge, but in the long run, it’s up to the judge to be independent and make what s/he thinks is the best reasoned decision.
January 22, 2010, 9:39 amMartinned says:
I have a solution for that one:
I my country, in the Netherlands, only members of the bar in The Hague are allowed to argue cases before the Supreme Court. And since bar membership is in any event much harder to get than in the US, that means that the Supreme Court bar is highly restricted. As a result, those attorneys only take cases that have at least some merit; they act as a filter for the court. (Highly necessary, too, since there is an automatic right of appeal, at least for now.)
Restricting the Supreme Court bar, and limiting the number of cert petitions each of its members is allowed to sign onto would reduce the number of cert petitions by weeding out some of the hopeless cases.
January 22, 2010, 9:59 amMartinned says:
Actually, I had a question as well:
Assume that some of the proposals made by Lerner & Lund are unconstitutional, because they unconstitutionally infringe on the power of the judiciary to arrange its own affairs. (Commenters have suggested this for the idea of requiring opinions to be issued anonymously, for example.) Who would have standing to sue? One of the justices themselves? How would that work? And wouldn’t all other justices have to recuse themselves if the case ever made it to the Supremes? Wouldn’t all that be fun…
January 22, 2010, 10:01 amCVMe says:
Martinned: I think that would be problematic for several reasons. First, in criminal matters, appointed counsel are often obliged to file a cert. petition if there is a reasonable ground for doing so. There are plenty of cases with a reasonable ground in which cert. is, for practical purporses, “hopeless.” Your rule would offend the accused’s right to due process. Second, restricting the bar would do little to curb the large number of pro se petitions and restricting pro se petitions would offend the right of access to the courts. Third, it would be difficult to find a manner of restricting membership in the Supreme Court bar without increasing exponentially the accusations of elitism in that group.
January 22, 2010, 10:09 amNowMDJD says:
This is the one proposal by Lerner and Lund that seems bad.
1. All Article II judges have clerks. They don’t have the celebrity judge problem that Profs. Lerner and Lund are trying to address.
2. This proposal would give tremendous power to the Court Librarian. The research would be tinged by the biases of the clerks chosen by the librarian. Given the resulting importance of the librarian, his or her appointment would be subject to political pressure, and the librarian might come to serve as a choke point to direct constitutional law into channels favored by the librarian and his or her sponsors.
Were I a justice, I would want my access to information in the hands of people I chose, trusted, and who had a connection to me.
January 22, 2010, 10:13 amSkyler says:
The key part of the Justice’s role is the decision he makes and the opinion he signs. How he comes to forming that opinion and decision is irrelevent. He is still the one responsible and he can always choose to ignore any advice given by a clerk, his mother-in-law, or the man on the moon.
Just because someone else formed the words is irrelevent. Most judges at lower levels simply sign orders written by the winning counsel, and at appellate levels they crib extensively from the briefs presented to them — as do these evil law clerks. I don’t really see the problem.
If the Justices do not wish to talk with each other (and I’m not sure that really is the case) then that’s their business. They are given the power to vote and write opinions. They are not required to make friends — or conform to the Lerner and Lund school of how to be a Supreme Court Justice.
January 22, 2010, 10:28 amMartinned says:
OK, that makes sense. Still:
- I’m not sure how keeping hopeless petitions away from the Supreme Court hurts anyone’s due process rights, or how anyone’s attorney can be required to file a frivolous cert petition, but OK.
- Indeed, unlike its American counterpart, the Dutch Supreme Court has mandatory represenatation. No pro se petitioners.
- I’m not sure how the US Supreme Court could possibly get any more elitist than it already is. That’s what they keep saying in the OP: how all those Harvard gruate clerks don’t screw up the cert system.
(I’m pretty sure the Dutch Supreme Court justices and the Dutch Supreme Court bar have, between them, attended just about every one of the 7 (?) law schools we have here. I suspect an equivalent group in and surrounding SCOTUS would have attended fewer different schools than that, if not in absolute terms, then at least relatively speaking.)
January 22, 2010, 10:32 amTerrivus says:
As someone who has some familiarity with the subject of this post, I read it with great interest and would appreciate your addressing, in a separate post, some follow-up questions:
1. As CVMe states, how would your proposals resolve the cert pool problem? You (rightly) note that pool work is skewed by (a) clerks’ relative lack of familiarity with “real world” legal issues, as opposed to interesting academic issues; and (b) clerks’ reluctance to recommend a grant that might later be found improvident, vs. no tax in the opposite direction. But how would moving them all the library, unassociated with a particular Justice, fix these problems? It sounds like the problem is the cert pool, not the clerks themselves or their associations with individual Justices. Unless, of course, you are advocating that the Justices themselves deal with all the cert petitions, which is, under almost any scenario, impractical.
2. You write, “It has long been alleged that clerks exert too much influence on how Justices cast their votes and craft their opinions.” But you later write, “Incredible as it may seem, some clerks cravenly or strategically flatter their Justices in a manner wildly inconsistent with the clerk’s private views.” So on the one hand, clerks imprudently use their private views to influence their Justice; but on the other hand, clerks imprudently fail to use their private views to influence their Justice. Which is it?
3. The broader argument in your work is that Justices should be less ideological and more attuned to the underlying merits of each case, and the nomination process should focus more on ability rather than (unspoken) ideology and satisfying particular interest groups. Good ideas all. But aren’t these goals better met when each Justice has four additional voices informing him on each case — voices that will necessarily be different than his or her own, and that may even disagree with his or her initial (read: ideologically influenced) instincts? Why take away these other voices and leave each Justice to his or her own instincts? Maybe your answer is that, under your plan, each Justice has the opportunity to be influenced by other Justices, not clerks. But on that note, is there not some benefit to having an annually rotating, continually spirited chorus of voices, as opposed to the same people year after year after year?
4. It’s true that most S. Ct. clerks don’t have much of an idea of what questions are important in the “real world” or to actual parties and practitioners. But what makes you think the Justices have any better idea? Some of them haven’t been in the real world for decades (Justice Stevens). Some, when they were, never actually practiced law (Justice Breyer). Some practiced predominantly in the government (Justice Alito), others in the public interest sector (Justice Ginsburg). Yet in having clerks, each Justice gets the opportunity to choose individuals who might bring different experiences to bear in chambers, or at least a “freshness” to fields, approaches, and other decisionmaking criteria that the Justice may not even be aware of, much less have any expertise in. On an even more elementary level, how about just the fact of having a 27-year-old recent law school graduate in chambers when one is, I don’t know, an eightysomething government employee? How does a Justice Stevens address a Grokster suit when he hasn’t ever heard of file-sharing or mp3s?
January 22, 2010, 10:39 amMartinned says:
I agree that in the end only the vote matters, but in your final paragraph I think you’re going too far. Surely making law, which is what the justices are doing, should be a deliberative process. It’s something you’d want the justices to talk to each other about. You’d want them to approach each problem with as much of an open mind as they can manage, and work through all the angles until they are satisfied with their conclusion. However, brilliant these law clerks might be, talking to them is no substitute for talking with the other justices.
That applies to ideological colour too: Since these clerks are meant to help write the opinion, you’d want them to be close to their justice ideologically. But for the deliberation that precedes the writing of the opinion, you need diversity of opinion. Some justices – I can’t remember who, but for some reason the name of Frankfurter pops into my head – used to hire clerks they disagreed with for that very reason: to have someone to argue with. But isn’t that what the other justices are for?
January 22, 2010, 10:44 amGramarye says:
I’m actually more interesting in the passage from the above post that suggests “a prevailing norm that sternly punishes clerks who “improvidently” recommend certiorari grants, while imposing no tax on errors in the opposite direction, inevitably biases the selection process toward cases whose significance is apparent even to recent law school graduates.”
How does this work? Make one recommendation that gets denied, and the rest of your recommendations for the term are all dead meat? This is the only part of the above post that I found actually troubling. The so-called “celebrity” culture of the justices, the fact that they speak with their clerks more than each other, etc., wouldn’t even bother me if it were true. The notion that a clerk could be socially punished for sticking his neck out in favor of a cert grant on a dry or technical legal issue with real but non-obvious consequences is more troubling, because it suggests that technical questions in the most technical or arcane fields of law aren’t getting the attention they deserve.
January 22, 2010, 10:45 amDavid Bernstein says:
But if we adopt your proposal, what becomes of the power and prestige of the former clerks who help choose the current clerks? How will Above the Law readers and others determine the hierarchy of recent law school graduates? How will law schools know which recent law school graduates are worthy of teaching constitutional law? You are talking about chaos, gentleman, utter chaos! Anarchy!
January 22, 2010, 10:45 amD.R.M. says:
The power of the purse is a serious thing. No law allowing money to be drawn from the treasury for clerks, no clerks. No money for office space, office supplies, or anything like it for unpaid clerk-interns, no unpaid clerk-interns.
Modifying the proposal above, though, go ahead and allow funding for individual clerks, to avoid the librarian bottleneck. Just make it a condition of the money that no person holding a professional/postgraduate degree may hold a clerk position. Paralegals should be able to handle research and clerical functions just fine, while deterring overreliance by Justices.
January 22, 2010, 10:48 amSparky says:
Did Kenneth W. Starr really say “the role of the clerks is a hearty perennial of an issue”?
‘Cause I think he meant “hardy perennial.” Or maybe he just doesn’t do much gardening.
January 22, 2010, 10:51 amCJColucci says:
Justice Brennan used to ignore the cert. pool and review petitions himself. He thought he could more quickly and accurately determine what was cert.-worthy than some kid out of law school.
January 22, 2010, 10:57 amGJohnston says:
It is interesting that no one seems to recognize the importance of a law clerk in keeping a Judge/Justice’s knowledge of certain areas of the law current. Complete reliance on clerks is certainly not the norm, but, an abhorrent aberration.
January 22, 2010, 11:10 amSkyler says:
Martinned presented:
Says who? If a justice chooses not to deliberate, isn’t that his right? He would be pretty ineffective, but his role is not effectiveness, his role is to defend the Constitution, develop the common law, and interpret statutory law.
That being said, I hardly think that the deliberative process is dying. Each justice wants his opinion to prevail, of course, and will attempt to convince the other of the merits of his position. I don’t see this as not occurring.
Finally, no matter what clerks do or don’t do, they serve at the pleasure and under the supervision of the Justice. It is not anyone’s place to tell them how to supervise them.
A justice is perfectly free to name Queen Elizabeth or Mikhail Gorbachev to write everything and then sign it. He is even free to go to Tahiti for a couple years and mail in his opinions that he drafted while sipping mai tais and getting foot massages. I just don’t see it as either our business or a problem that they have clerks. The clerks have no power, except that which a justice chooses to delegate to them and it is revocable at every instant only by that justice.
January 22, 2010, 11:15 amPintler says:
Well, they are employees, and their employer (you and I) can set various kinds of policies about how our employees do their job. I may find committee meetings boring, but I can’t assert a right to not participate in them.
January 22, 2010, 11:33 amSkyler says:
Pintler, justices are not employees. They are officials. They have their powers and responsibilities defined in the Constitution and in statutes.
But barring impeachment and conviction, they can do their job however they see fit. That’s kind of the purpose of how it was set up, they are supposed to be outside of our control and meddling.
January 22, 2010, 11:36 amMartinned says:
Yes… and the proposal(s) made in the OP involve changing the statutes…
January 22, 2010, 11:45 amTerrivus says:
A follow-up on the cert pool question. If you want each Justice to review each petition — thousands per year — then isn’t that taking an extraordinary amount of time away from the deliberative process of thinking about the case, talking with fellow Justices, and drafting, circulating, and revising opinions — all of which, under the authors’ view, should be the primary focus of Justices and the Court?
In other words, if you think Justices don’t put enough time into opinions now, leading them to be driven by ideological or other “inappropriate” instincts, just wait until they have to crank them out in a matter of several days because the laborious task of reviewing cert petitions takes up 85% of their waking hours. Justice Douglas used to crank out opinions by himself, while on a plane to Washington state, in a couple of hours — and those opinions were completely unmoored from any conceptions of the law other than his own. Is that really the result we want?
January 22, 2010, 11:48 amJay says:
Skyler–You’re assuming the conclusion. That is how it works now, but Lerner and Lund are arguing that there are reasons for it to work differently. I’m sure the authors realize their proposals are more likely to provoke debate than be adopted, but it’s not really much of a response to just point out that their proposals aren’t actually a description of current practice.
January 22, 2010, 12:05 pmPintler says:
Well, they’re not at will employees, for sure :-); more like employees with a strong union that can only be fired for very good cause.
But ethically, when you take someone’s money to do a job, I think that implies surrendering a little bit of freedom. It is my right to worship the god of my choice – ethically, it’s not even a teency weency bit your business. When I agree to take your money in return for my services, I think you get a vote in how I do that. We decide a lot of things about how the court works, e.g. where their office is, what their salary is, and so on. If we in our collective wisdom say ‘because of recent security breaches, all justice’s work computers will keep their antivirus software up to date’ or for that matter ‘while in session, justices shall wear black robes, not pastels’, I don’t see those rules as violating anyones rights.
I should hasten to add that micromanaging senior people is usually a dumb idea; my objection is to the use of the term ‘rights’. Taking the king’s shilling means accepting duties, not gaining rights.
January 22, 2010, 12:11 pmSkyler says:
I shudder to write this, but in effect they are not taking the king’s shilling. In a limited sense, they are the king. They alone in this nation are intended to be completely unreachable and uncontrollable except via impeachment and conviction. Their powers are limited, but their actions in the use of those powers are not.
Martinned, yes Lund and Lerner would be changing statutes, but the justices can still do the same thing without federal funding. They can hire their own clerks or get the teenager down the street to clerk for them after mowing their lawn.
January 22, 2010, 12:34 pmlgm says:
The problem of celebrity justices is caused by the fact that judicial opinions are important. You don’t change that by taking away their staffs.
Go back to the Roberts justice as umpire analogy. Umpires hot-dog their calls to entertain a stadium full of fans. Making calls anonymous (suggested yesterday) might change this, and maybe make calls more accurate.
But Supreme Court decisions are rarely simply factual findings involving things like where the ball was. They involve judgements, such as which causes are “probable”. Some are philisophical, such as whether to attempt absolutist adherence to the letter of the law or (as urged by Posner) to based on adding up weights on both sides, including economic impacts. It is natural that we should seek justices who will engage these issues deeply and at length in opinions.
What we can do without is justices who can’t figure out how to disagree with an opinion without insulting its author. You know who I’m talking about (whom?).
January 22, 2010, 12:35 pmAnonsters says:
O RLY?
I remember a post here a while back about how Scalia (or was it Thomas?) likes GMU grads.
Presumably because they bring a different point of view.
Unless you’re suggesting that life experience should matter to how cases are decided? That’s right heresy in these here parts.
January 22, 2010, 12:42 pmTerrivus says:
Through the magic of the internet, it took me 10 seconds to learn that between the two of them, Scalia and Thomas have had a total of one (1) clerk from George Mason. So not only do you have no support for your recollection that Scalia/Thomas “likes GMU grads,” but that very proposition is refuted by their own hiring history.
Oh, and the kicker is that that single George Mason clerk was — wait for it — seven years removed from law school when he started clerking. So if, in fact, there were any clerk who had “real world” experience, it would have been that clerk.
And nobody’s making the proposition that “life experience should matter to how cases are decided.” The proposition is that clerks with great real-world experience may have a better understanding of (a) actual problems facing practitioners and parties, thus increasing their recognition of certworthy cases; or (b) facts that are simply not familiar to cloistered, elderly Justices.
“O RLY?” More like: epic fail.
January 22, 2010, 1:00 pmT says:
Wow, i can’t speak for SCOTUS, but on the circuit court on which I clerked, reassigning clerks centrally would have been a train wreck. too much camaraderie would be stripped. each judge has too many individual quirks that take time to learn, and there would be too little time to get to know your judge. the clerks at least would hate it, as would the judges who would get work product that makes them less happy.
January 22, 2010, 1:11 pmSoronel Haetir says:
On the topic of the Court taking or not taking dry technical cases, I fail to see how that can even be argued in a serious manner. Look at all the ERISA, immigration, tax and bankruptcy cases the justices hear. Even AEDPA in its way. Are folks seriously going to contend that these are not often technical in nature?
Like the question of whether a deadline is still a deadline even when the presiding judge misstates it. Or does a limitations period reset when a state allows for the reopening of direct review. I know I would prefer that the Court not be so death obsessed, but I don’t think it would work out to somehow mandate that the Court take more non-capital cases.
I know over the last decade SCOTUS got around to resolving a bunch of patent law issues where the Federal Circuit gave screwy interpretations. Is there some specific area of law that is now getting ignored?
As for how the justices go about their jobs, I’m not sure if nine distinct law firms under one roof is really worse than Oliver Wendell Holmes’ “nine scorpions in a bottle”; by all accounts the Court has become much more cordial. That may well be a good thing, let the professional disagreements remain just that.
Also, about writing opinions. I’ve looked at opinions from the 60s and earlier. They tend to be short and not very explanatory. I don’t know if that has more to do with modern drafting tools simply allowing for more and faster output, if getting more scholarly judges is responsible, or other factors, but I find the modern Court product to be of much higher quality. I’m not at all certain that the changes you propose would allow us to keep those improvements.
January 22, 2010, 1:19 pmAnon21 says:
How I’ve heard it explained by a former clerk is not that the stigma comes from making a recommendation for a grant which ultimately isn’t accepted by the Court. The stigma comes from recommending a case which is in fact granted, but is later dismissed as improvidently granted due to a vehicle problem. That (supposedly) shows a lack of care in sizing up the petition’s merits and procedural posture in the first instance, and is something that the clerks apparently live in dread of.
January 22, 2010, 1:19 pmJay says:
“Martinned, yes Lund and Lerner would be changing statutes, but the justices can still do the same thing without federal funding. They can hire their own clerks or get the teenager down the street to clerk for them after mowing their lawn.”
That really seems likely to you? We get it; you’re cynical about the judiciary. None of what you say speaks to the merit of Lund & Lerner’s proposals, just your view that they’re impossible to implement. But of course they won’t be, if discussion of them is barred in favor of your eyerolling and annoyed sighs.
January 22, 2010, 1:21 pmAnonsters says:
Huh. Well, +1 to the intarwebz.
And a certain little crankypants needs to lighten up, methinks.
January 22, 2010, 1:37 pmJay says:
“Wow, i can’t speak for SCOTUS, but on the circuit court on which I clerked, reassigning clerks centrally would have been a train wreck. too much camaraderie would be stripped. each judge has too many individual quirks that take time to learn, and there would be too little time to get to know your judge. the clerks at least would hate it, as would the judges who would get work product that makes them less happy.”
This seems like an odd statement, considering that circuits already do have a central repository of clerks in the staff attorneys’ office. I agree that it would be a change in the status quo, but I’m guessing the days of circuit judges going around with a coterie of four clerks are even more recent than SC justices having that many, so I’m not sure why it would necessarily be a disaster.
Plus, (speaking as a former one) I kinda find the whole world of court of appeals clerking bizarre and somewhat unmoored from reason. Unlike district courts, where career clerks and clerks with more post-law school experience are much more common, virtually every COA judge seems to want to hire current LR editors from the most prestigious schools possible. But the job (of being either an appellate judge or clerk) really isn’t that hard. My time there was certainly easier than my previous job clerking at a district court. There’s a higher proportion of interesting legal issues to tedious factual ones, a lot of the job is essentially rubber stamping work done by staff attorneys or the clerk’s office, there’s more time to do your work, and much more of the work is already done for you if the case is briefed well at all. I’ve always been mystified by the business about Kozinski’s clerks working 14 hours a day, or whatever–what on earth do they do? Anyway, that’s all a long-winded way of saying that I in some respects think that circuit judges’ having a stable of eager, fairly smart elbow clerks is even less justifiable than the SC situation, where there is at least more often a need for truly deep research (beyond WL searches), and the people hired tend to be genuinely of the very highest caliber.
January 22, 2010, 1:43 pmSoronel Haetir says:
I would also add that I find it somewhat bizarre that SCOTUS clerks are hired every term. It would seem like a reasonable position to just hire someone and be done with it. I suppose there is an issue with the sort of top tier first-in-class graduates folks the justices look for not wanting to do that sort of work for a significant portion of their career. However, if it were to become a long term prospect, I would also think it’s the sort of job that a year or two of experience doing the work would make up for a lot of educational deficiencies.
One question I would ask: There is a perennial complaint that law school does not prepare the student for the actual practice of law. How well does law school prepare the graduate for the work a court clerk does?
January 22, 2010, 2:11 pmPeter Haberlandt says:
There is a possible separation of powers problem with Congressional action restricting justices’ ability to assemble their staffs.
January 22, 2010, 2:22 pmMartinned says:
a) No there isn’t. Congress gave SCOTUS the budget to hire so many clerks in the first place, so they can always take that money back.
b) Who would have standing to sue over it? The Court itself? Before which court would they bring their case? And where would they take the appeal if they lost? And where would the case go after that? 28 USC 2109 doesn’t seem like a lot of fun…
January 22, 2010, 2:44 pmConnecticut Lawyer says:
I clerked for a Justice a long time ago but I doubt things have changed all that much.
Some Justices do most of the heavy lifting. Some act like senior partners in a law firm, assigning work, heavy editing, etc. Some let their clerks do everything except vote and decide on the principal reason for the case. It’s not that hard to tell if you read opinions closely. Individual voice and style stand out versus homogenized law review writing with digressive footnotes.
The professors’ suggestion – a clerks pool – is in fact used by some courts. I believe the DC Circuit has (or at least used to have) a motions clerk who drafts motion orders for all the judges. While that’s a fun job, it doesn’t begin to compare to the experience of working closely with a Justice, and I doubt that if the Court were to adopt a similar practice that it would continue to attract the same level of applicants. I think that some courts (especially foreign courts) even use – horrors – experienced attorneys as pool clerks.
At the end of the day, I think the professors are right that the Court would be a better institution if the Justices relied less on their law clerks, but I don’t see how their solution would make things any better.
January 22, 2010, 3:12 pmConnecticut Lawyer says:
Soronel,
January 22, 2010, 3:15 pmBelieve it or not, law school prepares students quite well to be law clerks. They’ve just spent three years closely reading appellate cases and writing about them. Indeed, they are probably better qualified to serve as law clerks (doing research and writing first drafts of appellate opinions) than anything else. Of course, that does not mean that they have the experience or wisdom necessary to be good judges.
Crunchy Frog says:
That makes as much sense as Sigfried and Roy putting their tigers on a starvation diet.
Sure you can do it, but it’ll get you eaten in the long run.
January 22, 2010, 3:19 pmSkyler says:
Of course it’s not likely. I’m using the absurd to point out the absurdity of the recommendation. I didn’t mean to imply it’s impossible, because anything is technically possible in this matter. We can make whatever laws or even constitutional amendments we’d like.
The point is that the opinions are written by the justices. The clerks may assist in writing opinions or sifting through cases to be heard but the decisions of what to hear and what to write in the end are the justices’.
You can’t make justices be responsible or wise. You can only trust them to be so.
So, no, I’m not at all cynical in this regard. I think this is much ado about nothing from people who either want to control their betters, the justices, or who want to control access to them. Perhaps there is jealousy about who gets to be a clerk and how much influence they are perceived to have. I think they should get over it and worry about more important matters.
January 22, 2010, 3:20 pmCVMe says:
Martinned: I once saw a case affirmed under Section 2109 in which the Petitioner had named most of the members of the Supreme Court as defendants. Ironically, his argument was that they should have recused themselves in an earlier proceeding. He got his wish in that they recused in the second case, but that meant that there was no quorum, and since it was not anticipated that the Court’s membership would change sufficiently that there would be a quorum in the following year, the case was affirmed. The Petitioner had set up his case such that Supreme Court review was a logical impossibility.
January 22, 2010, 3:25 pmMartinned says:
Cool, but not quite as cool as the idea of the Supreme Court suing the other branches before themselves. ;-)
January 22, 2010, 3:40 pmJay says:
“The professors’ suggestion — a clerks pool — is in fact used by some courts. I believe the DC Circuit has (or at least used to have) a motions clerk who drafts motion orders for all the judges.”
Every court of appeals has an entire fleet of staff attorneys who not only draft orders on motions (actually, the clerk’s office may do most of that, if you’re talking about unreasoned orders on extensions of time and the like), but actually draft probably a majority of the court’s overall output, although not any of the published opinions. Many of these people are career employees, and quite expert in particular areas such as immigration or habeas, although I think some circuits hire for terms of 2-4 years.
January 22, 2010, 5:01 pmWidmerpool says:
Skyler–you should be chained to your desk and given only bread and water until you start taking Lund & Lerner’s proposals seriously.
January 22, 2010, 5:18 pmSkyler says:
Pool, why do you think I’m not serious? Disagreement is maybe something you don’t accept? Just because ludicrous ideas are proposed doesn’t mean they need to be agreed to. I have given serious reasons why this is a bad idea. They are simple, but nonetheless valid. Simple reasons are usually better.
January 22, 2010, 5:49 pmRich says:
These fellows still haven’t addressed the question of why “celebrity status” matters. Their initial article in this series just glossed over that. Also, to the extent that any of the areas they address involve matters that could actually improve the workings of the Court, the failure to investigate other courts, both within and without this country, is stunning. The drastic and sometimes bizarre solutions they propose simply do not reflect the kind of careful, incremental thinking they want the justices to engage in. Hypocrisy?
January 22, 2010, 5:54 pmSure says:
I look forward to similarly removing legislative assistants from the offices of Senators and Representatives–after all, the elected officials themselves aren’t drafting the bills’ text, are they?–and from Congressional committees. After that, we can have the head of the Smithsonian Institution appoint the President’s speechwriters and various chiefs of staff/policy advisers.
Seriously? Flattery by clerks is the biggest danger faced by Justices? Have you met many Article III judges who are really so weak-kneed that a bit of flattery from a wet-behind-the-ears law school graduate matters even a tiny bit to their decision on cert or cases before the court? Justices aren’t celebrities because they have clerks, anymore than Obama is a celebrity because he has Air Force One.
Also, since when does Congress have the authority (other than via bare-knuckled power of the purse) to tell the Judiciary how to assign work to clerks?
January 22, 2010, 9:10 pmJ says:
@Jay re circuit clerk workload
I obviously don’t know which circuit you worked for, but I am aware that the workload differs greatly among the circuits. The Ninth Circuit is greatly overworked. The district courts in California are also terribly overburdened compared to the rest of the country. Kind of sucks having 18M people per senator.
re the OP: Why can’t justices (and judges more generally) have staff? Congress and the President do. Should they get rid of their staff as well? (edit: Sure beat me to it.) I guess some of this sentiment is driven by experience with courts (like the Supreme Court) that are underworked. There are plenty of courts, esp. in more recently populated parts of the country, that are quite overburdened and the judges couldn’t begin to do it without a clerk staff.
January 22, 2010, 9:19 pmEric Rasmusen says:
I haven’t read all the comments, but I like the general attitude of your article very much. A few thoughts:
1. You can keep the clerk pool idea while also retaining selection by the judges. Just don’t let the judges do any interviewing– just paper-file viewing– and don’t let a clerk know which judge picked him. That will avoid the probelm fo the all-powerful librarian (or chief justice who chooses him).
2. If we are to retain the current system, at least get rid of the kiddie clerks. Use high-powered mature lawyers as clerks. If judges aren’t going to write their own opinions, and merely will put theri stamp of approval, at least let the writing and judgement be good. Also, grown-ups will be less sycophantic, or at least be more efficient about it.
I suppose only custom prevents justices from hiring better clerks even now. Why doesn’t a justice hire a K-Street partner (or even a senior associate) as his clerk, and keep him permanently rather than temporarily?
3. Another advantage of your clerk pool idea is that it would allow for specialization of clerks. Instead of each judge hiring an all-rounder (or more likely, each hiring only specialists in con law), the pool could hire one clerk who knows accounting, another who used to clerk for a patent judge, another who had Wall Street experience, another who’s taken Indian law, and so forth.
4. I don’t know what the social atmosphere of the court is like, but I bet if justices didn’t have their own clerks they’d get lonely at lunchtime and start talking with each other instead of with clerks. That, I think, would be good.
January 23, 2010, 9:14 amConnecticut Lawyer says:
Eric,
My info about the Court is over 25 years out of date, but not all Justices each lunch with their clerks. In fact, I’d wager that most of them lunch with the other Justices.
Of course, Justices could hire experienced K-Street lawyers if they wanted to. Why don’t they? I think they enjoy having young people around, who are bristling with enthusiasm and new ideas. So what if they don’t have any experience or judgment – the Justice has that in spades and he’s not really looking to his clerks for help in deciding cases. Maybe for help in honing arguments, or for anticipating the arguments that other chambers might make, but trust me, no Justice really cares all that much what his 25-year-old law clerk thinks about how a case ought to be decided.
January 23, 2010, 11:49 amSCOTUSblog » Academic round-up says:
[...] the authors have blogged recently about the article on Volokh Conspiracy, see here, here, here, here, here and [...]
January 29, 2010, 3:25 pm