It’s no real secret that Supreme Court clerks aren’t chosen solely for their blue-booking skills. They’re hired mostly for their brains, but also for their political leanings. Justices Antonin Scalia and Clarence Thomas regularly hire people who clerked for smart conservatives like Judge Michael Luttig or Harvie Wilkinson of the 4th Circuit. For their part, the John Paul Stevens and Ruth Bader Ginsburg chambers usually have a healthy helping of reliable liberals.
But, and thank God, the politics and ideology informing the clerkship process has never been quite as predictable or ugly as it is in the rest of the political world. Clerks are recent law-school graduates—tadpoles by Washington standards—who may grow up to be any kind of frog. Free Culture’s Lawrence Lessig was a Scalia clerk. Stephen Breyer, appointed by Clinton, regularly hires clerks from Judges Richard Posner and Michael Boudin, both thought to be conservatives (though neither in the Alito mold). Moreover, most law clerks enter and then exit the Supreme Court without political ambitions. They live vaguely normal lives without ego walls, developing fantasies of appearing on Meet the Press, and the other sad symptoms of Potomac fever.
Yet there are reasons to think that this may be changing. One small sign is a new trend of hiring clerks already trained at the Justice Department’s Office of Legal Counsel, and thus usually primed to defend the positions of the executive branch. Another is Justice Alito’s newest batch of clerks, including clerks of a different kind: They’re more like political staffers than law clerks. They’re older, dedicated movement conservatives with defined agendas. That fact isn’t secret or subtle. In fact, almost as one might see following a presidential election, they scored the job after helping Alito on his 2005 Supreme Court confirmation campaign.
Who cares? Partisan hysteria is unwarranted, and cries of unethical hiring are premature. The real concern isn’t that these clerks are idiots or will spend too much time at Federalist Society meetings instead of playing basketball. But if the nature of clerking comes to resemble staffing, it begins to touch on deeper issues of judicial independence—or the independence of all parts of government from party politics. The clerk-versus-staffer question is a tiny part of a larger struggle over whether the judiciary really keeps its own mind over the Constitution—or whether we are approaching something akin to a party system, wherein the party has the ultimate say over what the Constitution means.
Sometimes foreigners gasp with amazement when they learn that Supreme Court clerks are so young and inexperienced. But there’s some merit to that system—clerks don’t usually arrive with a hardened sense of political loyalty in the sense that White House and congressional staffers do. And since they leave after a year, they cannot become a permanent political force inside the building. Some former law clerks do seek political office or appointments later, but hardly most of them. The youth, inexperience, and even submissiveness of clerks help ensure that it’s the justices themselves, and the Supreme Court as an institution, that remain in charge of the Constitution.
For this and other reasons, there is a long though not inevitable propensity for justices, once appointed, to abandon their parties’ constitutional positions. Justice Felix Frankfurter, Democrat and star of the New Deal, was by the end of his career considered a judicial conservative. Justice Byron White was a Kennedy appointee who had morphed into a moderate conservative by the end of his career. Justice Harry Blackmun was both a Nixonite and the author of Roe v. Wade. And party stalwarts have never forgiven Justice David Souter for being more of a 19th- than 21st-century Republican—defying the evolving tastes of the party of Lincoln.
Party loyalists hate disloyal justices, and some have fought for decades to ensure that only loyal ones are seated. What party loyalists envision is a system wherein the judiciary, like elected representatives, adheres to the party’s vision of the Constitution. And changing the culture of the clerk system is a part of that. At an extreme, you can imagine a transformed future where politically loyal justices—Democrat, Republican, or Mugwump—surround themselves with teams of political staffers to help keep that justice in line with the rest of the party. If things ever go that far, it’s indisputable what will happen: It will become the parties’ constitutional ideas that matter, not the court’s.
While that sounds strange and vaguely Stalinist, it’s actually an idea with a history in the United States. Best associated with the Van Buren presidency of the 1830s, the basic premise was that independent government entities could not be trusted and that the party must therefore serve as the final authority of constitutional meaning. Only the party, the theory went, would retain fidelity to the true spirit of the American Revolution.
While party constitutionalism has its defenders, you don’t have to study Van Buren to see the problems with a system that elevates the party over everything. To say that it isn’t what the framers had in mind is an understatement. The main reason is that a system of party loyalty undermines the constitutional arrangement of checks and balances. Here’s an example: Many, including Slate’s Jacob Weisberg and conservative George Will, have argued that President Bush’s constitutional theories create too much unchecked executive power. But if party loyalties among clerks and justices demand agreement with the president’s views, then the power of the court as a constitutional check disappears.
The other problem with systems of party loyalty, in the judiciary and elsewhere, is what Bruce Reed calls the problem of hacks versus wonks. Too much loyalty leads to ugly results on the ground, because what is good for the party is often bad for the country. While we’re not the Soviet Union, the United States is not immune to such problems. Arguably, excessive party loyalty has already created problems at supposedly technical agencies like the Federal Emergency Management Agency, NASA, the Food and Drug Administration, and the Environmental Protection Agency. Whether they’re setting safe mercury levels, investigating global warming, or approving medicines, each has in recent memory put politics ahead of their technical responsibilities.
None of this should be exaggerated. Justice Alito has hired trusted former clerks, and his choices are only for this term. Hopefully, the practice of hiring political staffers for clerks will end there. And there is some comfort in knowing that most of the rest of the justices—including the new chief justice—are still hiring the old way: finding nerdy clerks with little political experience, whose fantasies include someday fashioning a better-working ERISA statute.
Ultimately it is true that the Supreme Court, like every part of the U.S. government, has since 1800 or so been politicized to some degree. But the question is, to what degree. If the party demands, and receives, more loyalty than the court itself, you don’t really have separation of powers—you have separation of parties. And that’s just not the same thing.