The Varying Influence of Clerks

By Charles Lane
Monday, March 6, 2006

The Supreme Court keeps its internal workings a secret, and perhaps no aspect of its operations is more closely held than the role played by the justices' talented, industrious and -- reputedly -- influential law clerks.

Much has nevertheless been written on the behind-the-scenes power of these strong-minded but inexperienced aides, most memorably in Bob Woodward and Scott Armstrong's 1979 book, "The Brethren," and in "Closed Chambers," published in 1998 by former clerk Edward Lazarus.

Now two political scientists have produced their take on the topic, provocatively titled "Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court." The book's authors, Artemus Ward and David L. Weiden, argue that the clerks have more power than they used to have, and probably more power than they should.

The "institution of the law clerk has been transformed into a permanent bureaucracy of influential legal decision makers, scarcely resembling its original incarnation," they write. "Today, voting and editing largely defines the role of a Supreme Court justice. Clerks are now responsible for the raw material that goes into the Court's opinions."

That conclusion is based on questionnaire responses the authors received from 160 (anonymous) ex-clerks from the past 50 years, plus follow-up interviews, a review of past justices' papers, and previously published books.

Ward and Weiden analyzed clerk responses statistically, producing the finding that the average clerk on the Rehnquist Court, which lasted from 1986 until last year, recalled changing his boss's mind only "seldom." Still, that was more often than the average clerk of 50 years earlier, who said "never."

Their study also showed that today's justices farm out far more of the opinion-writing to their clerks than their predecessors. They argue that the change began with a shift in the court's internal practices in the 1950s. Until then, the fastest writers among the justices got the most assignments. But Chief Justices Fred Vinson and Earl Warren thought the workload should be shared equally. Thus, slower writers got more work and, of necessity, their clerks had to pitch in.

Of today's justices, Ward and Weiden report, only John Paul Stevens writes all of his first drafts, and only Antonin Scalia and David H. Souter "regularly" do "some."

The authors cite an unnamed Sandra Day O'Connor clerk from the 1990s who says that she "never" so much as revised his drafts.

Further back in the court's history, liberal icon William J. Brennan Jr. did only "little revisions" during the 1980s, one ex-Brennan clerk told the authors.

Ward and Weiden are candid about the limitations of their study. One is the possible propensity of ex-clerks to inflate their roles.

The authors say that the clerks' influence is greatest on decisions about whether to accept an appeal in the first place, and least on the actual outcome of the cases.

That is a natural outgrowth of the key innovation of the modern court, the "cert pool." For each of the thousands of petitions for certiorari that reaches the court, a single clerk writes a recommendation -- grant or deny -- for all justices' chambers (except Stevens's).

Opinion-writing, while largely delegated, is not unguided. Clerks generally follow more or less detailed instructions from their justices.

"We suggest that the data presented in this book show that clerks are not merely surrogates or agents, but they are also not the behind-the-scenes manipulators portrayed by some observers," Ward and Weiden note.

Still, there is a "danger" that "ambition coupled with passion could lead to self-serving partisanship," they write.

To make that point, they analyze clerk memos from the recently released archives of Justice Harry A. Blackmun. In those documents, clerks gave explicitly political advice to the pro-abortion rights justice when the court was deciding a crucial 1992 abortion case.

"The people of America need someone to tell them the truth," clerk Stephanie Dangel wrote Blackmun.

The authors recommend that the Senate could forestall such problems by questioning future court nominees about their views on the role of clerks.

In their archival research, Ward and Weiden unearthed an Oct. 6, 1963, letter from a recent law school graduate to then-Chief Justice Earl Warren.

"May I take the liberty of submitting this application for a clerkship with you next year?" the young man wrote, listing his credentials as a Harvard Law Review editor and Marshall Scholar. "I plan to return eventually to San Francisco to practice law," he added.

The application to Warren did not pan out, nor did the Bay Area law practice. But another member of the court, Justice Arthur J. Goldberg, did say yes, and the young applicant's career went well enough.

His name: Stephen G. Breyer, who has been an associate justice since 1994.

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