Disenclerking the Supreme Court

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.

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