The problem with the clerks

Posted: Aug 01, 2005 12:00 AM

"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.

 Once upon a time, Supreme Court opinions were widely read and understood by interested citizens. Now, they're mostly read by law professors and by practicing lawyers who get paid $500 an hour or more to do so -- and by law professors and law firm partners who are making hiring decisions, and want to know which opinions their applicants have written. All this has resulted in opinions that complicate rather than clarify the law and encourage litigation rather than set clear rules which everyone can follow.

 I am not the only one to conclude that the proliferation of law clerks has resulted in a proliferation of opinions. This was one conclusion of political scientist Bradley Best in his 1995 book "Law Clerks, Support Personnel and the Decline of Consensual Norms on the United States Supreme Court, 1935-1995." Best concludes that the increase in clerks has led to an increasing independence among the justices -- or, in everyday language, justices now schmooze more with their clerks than with each other.

 David Garrow, reviewing Justice Harry Blackmun's papers, finds that Blackmun increasingly allowed clerks to write his opinions, sometimes without even letting them know his own position, and "increasingly ceded far too much of his judicial authority to his clerks."

 I don't think that's the case with any of the current justices, who all seem highly intelligent and learned in the law.

 I have hopes that a Justice John Roberts might reduce the reliance on law clerks, though he was one himself. Roberts clearly knows his own mind and is capable of drafting his own opinions. He has served on the D.C. Circuit on which former Chief Judge Harry Edwards and his successor, Douglas Ginsburg, have encouraged unanimity and discouraged dissents and separate concurrences. In cases Roberts has heard, there have been few separate opinions.

 Moreover, Roberts, while showing respect for differing views, has shown a penchant for making crisp decisions and enunciating clear rules. Let's hope he and the other justices put the clerks in their place.