I’ve just finished reading one of the two new books on Supreme Court clerks, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David Weiden It’s kind of hard to offer a comprehensive review of the book: Being a recent clerk myself, my perspective is skewed. Plus, for confidentiality reasons I can’t really say where I thought the book was accurate or inaccurate. With those caveats made, here are some general thoughts on the book. I’ll start with two strengths, and then suggest a significant weakness.
I think the most important contributions of the book are the results of the authors’ survey of former clerks. The authors contacted a random sample of 600 of the 1500 former clerks out there, and 28% of the 600 clerks responded to the survey (for a total of 160 responses). The authors don’t identify the clerks, but they do say that “the respondents ranged from a clerk who worked for Justice Harlan Fiske Stone in the 1930s to clerks who served as recently as the late 1990s.” The survey results let the authors assemble some interesting results — nothing earth shattering, but interesting.
Second, the authors assembled some very interesting data about the groups of clerks themselves over time, such as where they went to school, who they clerked for at the appellate level, race/gender, and the like. Again, nothing earth shattering, but still pretty interesting.
One weakness of the book is that some of the information appears to be a bit dated. The information is dated for two reasons. First, my sense based on the book as a whole is that the clerks most likely to complete the survey were those that clerked a while ago. Second, parts of the book rely heavily on the Blackmun and Powell papers, and in particular on the relationship between those two Justices and their clerks.
The fact that some of the information is a bit dated is relevant, I think, because there has been an important shift at the Supreme Court in the last 15 years or so: The size of the Court’s merits docket has been cut in half. The Court used to decide about 150 cases a year on the merits, and in recent years has decided only about 80 or so. I suspect that the smaller docket has altered the role of clerks; in particular, I suspect it has lessened the influence of clerks. When the Court decided 150 cases per year, each Justice might be assigned 16 or 17 majority opinions per year; now that the Court decides only 80 cases, each Justice averages only about 9 majority opinions. This doubles the amount of time that Justices can give to individual merits opinions, and I would guess that this tends to decrease the amount of clerk influence over those opinions. Ward and Weiden seem to miss that dynamic, as their sources are mostly focused on the era when the Court decided 150 cases a year.