Endangered Elitist Species

In defense of the Supreme Court law clerk.

Poor Supreme Court law clerks.

Most of them finish doing the coolest job they will ever have when they are 26 years old. All they will have to remember it by is a framed photo of some old white guy in a black dress, and a bajillion-dollar signing bonus from their law firms. They aren’t allowed to canoodle with the press. And they spend months killing themselves to craft pitch-perfect, meticulously blue-booked decisions that they can never, ever claim as their own. (“Hey, know that Kennedy opinion in Lawrence? Dude. I totally wrote that!”)

And now, everybody is trying to take their jobs-of-a-lifetime away from them.

This month in the Atlantic, Stuart Taylor and Benjamin Wittes proposed to fire all the Supreme Court’s law clerks because they make the job of their justices far too “cushy”—resulting in way too much judicial travel and speech-giving and not enough tedious grunt work. The justices delegate a “shocking amount of the actual opinion writing to their clerks,” Taylor and Wittes scold. And like others who have brandished the get-to-work whip before them, they single out a few lazy-ass justices for asking clerks to write first drafts.

A week earlier, reviewing two new books that trace the history of the Supreme Court clerkship ( Sorcerers’ Apprentices, by Artemus Ward and David L. Weiden, and Courtiers of the Marble Palace, by Todd C. Peppers), Judge Richard Posner similarly argued in the New Republic that more clerks haven’t meant better work on the court’s part. Posner suggests that the advent of the contemporary clerkship—which began in the 1940s—has not corresponded with any improvement in the quality of the court’s work. He also dismisses the notion that cases today are more complex than they used to be. And like Taylor and Wittes, he points out that the court today decides fewer than half the number of cases that it used to (about 80 per year compared to more than 160 in 1945). Posner attributes the rise in the number of clerks (to four per justice since the 1970s) to simple bureaucracy run amuck.

It’s strange that many of the same critics who argue that the court is over-involved in the life of the nation also complain that the court should be hearing more cases. Do they simply want the court to hear more boring cases? Apparently. Taylor and Wittes chide the justices for “leaving unresolved important, if dust-dry, legal questions that are largely invisible to the public.”

But the main quibble Posner, Taylor, and Wittes have with contemporary law clerks is that they wield too much influence over their justices’ opinion-writing. Artemus, Weiden, and Peppers broaden this concern to the clerks’ influence on the thinking of the justices about how to decide cases. But their books offer little evidence of such abuse. There’s no news here of nefarious power-mad clerk cabals—if anything, the books belittle the charges Edward Lazarus levied on that score in his 1998 book, Closed Chambers.

Artemus and Weiden tried to measure such influence by polling past clerks. Twenty-four percent of those who responded said they’d “sometimes” changed their justice’s mind on a case or issue. Another 24 percent said they’d never done so, 51 percent said they seldom had. Only one clerk reported “frequently” having had such influence. And that was probably now-Chief Justice John Roberts.

Aren’t the numbers Artemus and Weiden report about the level of give and take one would hope for on the courts? These clerks don’t think they’re running the show. But most of them speak up when they have something to say, and some even get heard. Clerks are smart and by definition fresh on the job, since they generally stay only a year. They should be sounding boards for their justices, and they should sometimes voice countervailing views. If it seems undemocratic or unwise to concentrate vast power in nine unelected brains, isn’t a system that decentralizes all that authority among 40-some unelected brains an improvement?

The value of putting more than one brain to work on a problem is why senior lawyers work with teams of more junior ones, as Stanford law professor Janet Alexander points out in this SCOTUSblog post. It’s also why members of Congress have staffers. Taylor and Wittes deride the justices for writing books, giving “silly speeches,” and traveling too often. Would it be better if they were shackled to their desks? It’s not quite fair to bitch about excessive secrecy and mystification on the court and then deride the justices for speaking or writing in the public arena.

John McCain, R-Ariz., has written four books as a senator. Sen. Joe Lieberman, D-Conn., took 11 private plane trips in 2005. Let’s curtail their extracurricular activity as well, and take away Beer Fridays while we’re at it. Government work should always be as grim and no-frills as salt mining.

The strongest point that Posner, Taylor, and Wittes make is that by asking clerks to write first drafts, justices lose an opportunity to make their opinions their own. If every justice took the initial crack at putting thoughts to paper or keyboard, as does Justice John Paul Stevens, their opinions might come out sounding somewhat different. But would they really differ in substance? If you give clear and detailed direction for a piece of writing, laying out its argument, order, and building blocks, and then you edit it extensively, you’re the one in control. That’s reportedly the norm on the Supreme Court. And it was how work proceeded in the appeals court chambers we each worked in.

Would it be better if permanent secretaries did those first drafts, or if the justices relied more heavily on lawyers’ briefs for their initial ideas? Or do the clerk critics have some mechanism in mind that would force justices to write first drafts from scratch?

If Supreme Court justices had to go it alone (or with one rather than four clerks each, as Taylor and Wittes allow for), they’d all finally learn to use the legal research tool called Lexis. They’d give fewer speeches. They would also stagnate alone in chambers with diminishing access to new ideas. They’d undoubtedly survive. But they’d be more isolated and less likely to chase down a hunch, or look at a broad range of historical or lower court sources. They’d likely find the Internet porn cases awfully confusing, too. Maybe they would also retire earlier, which is, perhaps, the hoped-for subtext of all these complaints.

Supreme Court justices have taken some bruising hits in the past few years from conservatives and members of Congress who think judicial independence is an idea that should be eradicated. Now Posner, Taylor, and Wittes want to make them toil long, lonely hours to boot. Way to take all the “fun” right out of defunding the courts.