What’s the Problem with SCOTUS Clerks? (Redux)

By Amy Howe
on Jun 8, 2006 at 6:22 am

Last week, I wrote here about Judge Posner’s intriguing review of the two new books on Supreme Court clerks. As I mentioned there, although Posner apparently would prefer that Justices draft their own opinions, he does not argue that that would result in an improvement in the quality of Justice-penned opinions. The only possible advantages that Posner identifies are that Justice-written opinions would likely be shorter and less “scholarly.”

Following up on that, Stuart Taylor and Ben Wittes have now published a short piece in the Atlantic arguing that the number of law clerks should be reduced to one per chambers. Like Posner, they think there’s little excuse for Justices not writing their own opinions. But also like Posner, they do not explain why Supreme Court Justices are differently situated from, say, Presidents, or legislators, or law-firm partners, etc., when it comes to drafting what gets published under their name; nor do they offer much reason to believe that the work product of the Court would be appreciably different if Justices did most of the heavy lifting.

Taylor and Wittes suggest that the principal benefits of their proposal are that it would give the Justices “little time for silly speeches,” and that it would make the Justices’ jobs harder and more tedious, thereby inducing them “to retire before power corrupts absolutely or decrepitude sets in.” (Sort of like Justice Holmes, I suppose, . . . or Justice Stevens, whose seat on the Court has, as of Monday, changed hands only twice in the past 90 [not a typo] years.) As Orin Kerr playfully but pointedly asks, if those are the objectives, why stop at law clerks?

To be fair, Taylor and Wittes do hint at a more substantive reason for the proposed reduction in the number of law clerks, one related to the quality of the Court’s actual work: They quote Justice Stevens to the effect that one reason he writes his own draft opinion “is for self-discipline … I don’t really understand a case until I write it out.” This is certainly a good reason for Justices to draft their own opinions, at least in cases where they are genuinely uncertain about the outcome or rationale. But is it a sufficient reason for Congress to impose such discipline on Supreme Court Justices by cutting off clerk-salary appropriations?

NOTE: Although Taylor and Wittes’s article reads as though their proposal is a sincere one, there is a swift reference suggesting that they, like Orin, might be writing tongue-in-cheek: “We have a modest proposal: let’s fire their clerks.”

UPDATE: On a ConLaw listserv, Professor Janet Alexander writes:

Practicing lawyers deal with the very same legal issues that judges do, and for courts at all levels — including the Supreme Court — they perform the foundational level of research, analysis, and framing of issues on which judges rely. Elite law firms become and remain so because of their success in analyzing and explaining (to judges and juries) complex legal issues. Sophisticated consumers of legal services take a great deal of care in selecting their lawyers, and it is no accident that for complex cases they overwhelmingly hire law firms rather than sole practitioners. They get a better product that way. And it is no accident that the market for legal services has produced the elite law firm, in which lawyers work in teams. Teams are able to develop and critique alternative analyses, and the most senior and experienced lawyers are spending their time on the tasks that no one else can do. (There is a very small market, the Supreme Court bar, in which business goes primarily to one “name” — but the person who does the oral argument does not single-handedly write the briefs.)

So it should not be surprising that justices and judges, most of whom have practiced law, organize their work in the way that American lawyers have found most effective. Obviously the tasks are different. But judges can perform the task of judging while still using clerks to write first drafts, incorporate revisions, and do research. I don’t think anyone ever complained that John Roberts would have been a more effective Supreme Court advocate if he had done all the research and drafting on his cases.

Law professors and other legal academics are pretty much unique in “hand-crafting” their work. Legal scholarship is not nearly as close to the judge’s job, however, as is the practice of top litigators. (It would be surprising if this were not the case, because litigators’ audience is judges and that is not the case for legal scholarship, because on the whole judges do not find most legal scholarship helpful.) Some may find this view outrageous, but our work is valuable too. It’s just not necessarily the model to which all legal writing should aspire.

In fact, the problem with reliance on law clerks who are fresh out of law school is that Supreme Court opinions are written way too much like law review articles. The solution has to be for justices to recognize that long excursions into doctrinal history or amateur history should be kept to a minimum.

And in the Comments section of Orin Kerr’s post, Sam Bagenstos writes this about the practices in Justice Ginsburg’s chambers, in respopnse to Taylor and Wittes’s claim that Justices Ginsburg, Thomas, and Kennedy “reportedly have clerks write most or all of their first drafts—according to more or less detailed instructions—and often make few substantial changes”:

Maybe things have changed in the 8 years since I clerked for her, though I doubt it, but my experience was: I wrote a lot of words. A lot of them made it into the final opinion. But they did so only when I had accurately captured Justice Ginsburg’s ideas. (How did I know those ideas? Because she told me. We’d always have a conversation in which I got my marching orders, and it was often accompanied by an extensive memo and/or outline that she had prepared herself.) And they always ended up surrounded by lots of Justice Ginsburg’s words. Sometimes I and my coclerks would go home at night while working on an opinion and come back to work in the morning to find that Justice Ginsburg had, in the middle of the night, drafted a section of the opinion (sometimes, virtually all of the opinion) and left it on the dictaphone tape for her secretary to type up. I’d say she was a lot more involved in the drafting than even highly-involved senior partners in sophisticated appellate practices. (The last bit suggests why I think the whole Wittes-Taylor idea is ridiculous. I think lawyers, of all people, should recognize that a piece of written argument and analysis can be the senior partner’s product even if s/he doesn’t write the first draft.)