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Wednesday, September 8, 2010


The New York Times reports that liberal and conservative justices are increasingly picking like-minded clerks. Why are clerks -- who have only recently graduated from law school -- so important?

“The reason why the public thinks so much of the justices,” said Justice Louis D. Brandeis, who served from 1916 to 1939, “is that they are almost the only people in Washington who do their own work.”

These days, respect for the court must be grounded on other factors. Opinion writing is largely delegated to clerks, and Chief Justice Rehnquist candidly acknowledged that the justices’ chambers were “a collection of nine autonomous opinion-writing bureaus.”

With the departure of Justice Stevens, it appears that none of the justices routinely write first drafts of their opinions. Instead, they typically supervise and revise drafts produced by their clerks.

A few decades ago, the court decided 150 cases a term. That number has dropped by about half, meaning each justice must write about eight majority opinions a term. Yet the practice of entrusting much of the drafting to clerks remains entrenched.

“We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices,” Professor Garrow said.

The justices forbid their current clerks to talk to the press, and most former clerks refuse to discuss the work they performed for living justices in any detail. But Artemus Ward and David L. Weiden received responses from 122 former clerks to a question concerning the drafting of opinions for their 2006 book “Sorcerers’ Apprentices.” Thirty percent of the clerks said their drafts had been issued without modification at least some of the time.

Reviewing the book in The New Republic, Judge Posner, a close student of the court, wrote that “probably more than half the written output of the court is clerk-authored.”

The trend toward polarization may not be good for deliberation. Like-minded clerks may end up reinforcing a justice's views instead of challenging them in a way that encourages deeper thought.

The article does overlook an important element of the story: the emergence of a network of conservative legal scholars, law students, and practicing attorneys. Steven Teles masterfully explains this development in The Rise of the Conservative Legal Movement.