Michael Barone

"The first thing we do is, let's kill all the law clerks." No, that's not exactly what Shakespeare wrote in Henry VI, Part II, but it is a sentiment that you occasionally will hear expressed by observers of our current Supreme Court. And not without some reason.

 Supreme Court justices are entitled to hire four law clerks (Chief Justice William Rehnquist chooses to hire just three). Clerks are usually recent law school graduates -- most Supreme Court clerks have served as clerks to federal appeals court judges first. Three of the current members of the court (Rehnquist, John Paul Stevens and Stephen Breyer) served as clerks to Supreme Court justices, as did George W. Bush's nominee, Judge John Roberts.

 For most of the nation's history, Supreme Court justices got along without law clerks. Early in the century, Justice Oliver Wendell Holmes started hiring law clerks, some of whom became famous or notorious (Alger Hiss), and by the 1940s most justices did.

 In the 1940s, historian David Garrow tells us, some justices started having their clerks write first drafts of their opinions. Now, most of them apparently do. Justice Louis Brandeis said that "the reason the public thinks so much of the justices of the Supreme Court is that they are almost the only people in Washington who do their own work." Not so any more.

 The proliferation of law clerks -- justices got two in 1948, three in 1970, four in 1978 -- has produced a proliferation of separate concurring and dissenting opinions. In the two-clerk era, there was an annual average of 107 opinions of the court, 78 dissents and 33 concurrences. In the three-clerk era, there were 146 opinions of the court, 134 dissents and 73 concurrences. In the four-clerk era, during which the Rehnquist Court started hearing fewer cases, there were 118 opinions of the court, 98 dissents and 65 concurrences.

 In other words, there were 104 separate opinions for every 100 opinions of the court when justices had two clerks, 142 when they had three clerks and 138 when they had four.

 And the opinions got more complex. In the 1920s, Chief Justice Taft encouraged justices to agree on unanimous opinions, and when justices disagreed there was usually just one crisp and clear dissent. Today on many, many cases, we get hundreds of pages of opinions, and justices stating agreement with parts I, II(B) and IV of the majority opinion and disagreement with parts II(A), II(C) and III. You can't read them without making a flow chart showing each justice's position first.


Michael Barone

Michael Barone, senior political analyst for The Washington Examiner (www.washingtonexaminer.com), is a resident fellow at the American Enterprise Institute, a Fox News Channel contributor and a co-author of The Almanac of American Politics. To find out more about Michael Barone, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com. COPYRIGHT 2011 THE WASHINGTON EXAMINER. DISTRIBUTED BY CREATORS.COM