US Supreme Court Law Clerks: Part II

How much power do law clerks really have? The question is quite interesting given the fact that the justices who sit on the Court do have the power to "say what the law is." How much say do law clerks having in creating the law of the land?

FindLaw's Edward Lazarus (who used to clerk for Justice Blackmun--shown above with his family) thinks that there is some evidence that law clerks do participate too much in the writing of opinions that are issued by the Court. In his article he writes that this level of involvement may also not be good. He says, "After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed."

His whole article can be found at the link above or below in full:

Is Too Much of the Justices' Work Delegated to Their Law Clerks?

On a parallel track, a growing number of Court watchers have started to criticize the justices for the way they go about their work - and, in particular, the degree to which they have delegated the Court's work to a bureaucracy of young law clerks.

The debate on this subject heated up last year when Pulitzer-Prize-winning historian David Garrow accused Justice Harry Blackmun of being the most irresponsible justice ever because, according to Garrow's analysis of Blackmun's papers, Blackmun delegated a very substantial part of his opinion-writing to his clerks. (Full disclosure: I myself was once one of Blackmun's clerks.)

Meanwhile, two new political science books have thrown gas on the fire by arguing that Blackmun was by no means aberrational in his approach. Instead, they conclude -- based on extensive empirical study -- that almost all the justices relegate opinion drafting to their clerks. Moreover, these books claim, a fair number of the justices are fairly light editors of the drafts the clerks produce.

Critics ought to be remember, though, that even if this is true to some extent, the clerks are usually drafting according to the Justices' specific instructions, and subsequent to their deliberations with colleagues - and thus, they are still carrying out the Justices' visions. By and large, clerks are like apprentice architects filling in the boss's blueprint.

Still, it was not always thus. Decades ago, Justice Louis Brandeis famously remarked that the justices earned their high reputation in significant part because they were the only officials in Washington who genuinely did basically all of their own work. Then, it seems, Justices were both architects and apprentices.

A number of prominent commentators have started pining for the days when Brandeis's observation was still accurate. Reviewing the two books on law clerks, Judge Richard Posner, perhaps the smartest judge in the country, argues that the growth of the clerk bureaucracy has done nothing to advance the quality of Supreme Court opinions or decision-making; in fact, he suggests, it's just the opposite, and quality has diminished as clerk involvement has grown. After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed.

It's not as shocking as it might sound, then, that two other well-respected Court followers, Stuart Taylor and Ben Wittes, have gone so far as to propose that the whole institution of Supreme Court law clerks - the hotshot recent law grades for whom clerking is a ticket to the legal elite - be abolished. In their view, the justices of the current era have unforgivably abdicated their most important responsibility - namely, crafting the specifics of the arguments that support and justify the nation's most important legal decisions.

In reality, the whole system of law clerking is far too entrenched for Taylor's and Wittes's suggestion to gain much traction. And I doubt that such a wholesale approach would be a good idea anyway. Law clerks, when deployed as they ought to be, perform all kinds of salutary functions, including bringing energy and new ideas into an otherwise exceedingly insular institution.

But as is true of all Swiftian "modest proposals," the Taylor/Wittes idea of doing away with law clerks entirely does raise important questions about the Court's functioning. How engaged are the individual justices in the crafting of the particular language used in their opinions? And if they're not very engaged at all, how much sense does it make for the lower courts to closely parse their every word choice? Does the clerk bureaucracy allow justices to stay on the Court long after their prime has passed? Has the proliferation of law clerks improved the Court's work and, if not, why not? Are there ways the use of law clerks could be reformed, but not abolished?