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?

US Supreme Court Law Clerks: Part I

Is there declining diversity in the law clerk hires since the appointment of John Roberts and Samuel Alito?

Perhaps there is as Linda Greenhouse writes in a not-so-recent memo regarding the declining numbers of female law clerk hires by USSC justices.

Take a look at the article below:

Everyone knows that with the retirement of Justice Sandra Day O'Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country's new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O'Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O'Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O'Connell twice, there were 16 women among the 43 law clerks hired by last term's justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices' individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Who are these young lawyers who are the subject of such interest? They do not, contrary to myth -- propagated in part by law clerks themselves -- run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.

While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.

In interviews, two of the justices, David H. Souter and Stephen G. Breyer, suggested that the sharp drop in women among the clerkship ranks reflected a random variation in the applicant pool.

But outside the court, those who care about what goes on inside are thirsting for more than statistical randomness as an explanation.

A post on one popular legal Web site, the Volokh Conspiracy, asked, ''Why so few women Supreme Court clerks?'' and drew 135 comments during a single week in July. The answers included the relative scarcity of female students among the top editors of the leading law schools' law reviews -- an important preclerkship credential -- and the absence of women among the ''feeder judges,'' the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks.

Some speculated that Justice Antonin Scalia, who hired only two women among 28 law clerks during the last seven years and who will have none this year, could not find enough conservative women to meet his test of ideological purity. (Justice Clarence Thomas will also have no female clerks this year, but over the preceding six years hired 11.)

In a brief telephone interview, Justice O'Connor said she was ''surprised'' by the development, but declined to speculate on the cause.

Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which she also observed with obvious regret that ''I have been all alone in my corner on the bench'' since Justice O'Connor's retirement in January.

Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.

One who is in that position, Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.

In recent years, more than a third of Justice Souter's law clerks have been women; since women rarely make up as much as a third of the applicant pool, he said, they have been somewhat overrepresented among his hires.

''I've found that a mix is a wonderful thing,'' he said, speaking from his home in New Hampshire.

Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year's applicants.

That was also the assessment offered by Justice Breyer, who nonetheless has hired his usual total of two women for his four law clerk positions.

In the last seven years, Justice Breyer has hired more women than any other member of the court; more than half his law clerks, 15 of 28, have been women, a result, he said in an interview from his chambers in Boston, not of any conscious effort but of choosing the best available candidates.

With the number of women in clerkships high by historical standards until now, attention has been focused on a lack of ethnic and racial diversity among the clerks. There are no reliable figures, but the clerkship cadre remains overwhelmingly white.

It was not until the 1940's that any justice hired either a female or black law clerk.

Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.

Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.