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A Modest Proposal For Supreme Court Reform

In the latest Atlantic Monthly, Ben Wittes and Stuart Taylor suggest that Congress should not provide funding for Supreme Court law clerks. They write:

Eliminating the law clerks would force the justices to focus more on legal analysis and, we can hope, less on their own policy agendas. It would leave them little time for silly speeches. It would make them more “independent” than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.

I think this is exactly right. Just look at the modern-era Justice who never relied on his law clerks: William O. Douglas. Without clerks to help him, Douglas had no time for a policy agenda. His opinions are pure golden legal analysis. And Douglas’s tenure was an extremely brief 36+ years, ending quickly just a few short years after his massive stroke. If Douglas had relied on law clerks, I’m sure he would still be alive and judging today.

And why stop with law clerks? For example, why do Supreme Court Justices need secretaries? Eliminating secretaries would force the Justices to arrange their own schedules, keeping them from their debilitating reliance on staff assistance. Perhaps best of all, it would effectively shorten their tenure by forcing them to do all of their typing and filing, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.

Next, what’s the deal with oral argument? Today’s Justices sit around all day in their very nice robes in their very nice courtroom listening to lawyers yap-yap-yap about their cases. With nine Justices and only one lawyer speaking at a time, it’s a total waste of taxpayer money. It would be much more efficient to send one Justice to the courtroom to ask questions while the rest of the Justices hit the library and learned some real law.

Finally, who came up with the idea of letting litigants and amici submit written briefs? Think about it: Corporate interests and activist groups like the ACLU hire twenty-something law school graduates to give the Justices model opinions for them to follow. With a crutch like that, Justices don’t even have to learn the law themselves: they can just pick a side and then cut-and-paste what the activists and major corporations say the law is. If no briefs were allowed, the Justices would have to find the law on their own without lobbying from shady outside groups.

In sum, if Congress banned the filing of written briefs, fired the secretaries, and limited oral argument to one Justice at a time, the Justices would be forced to be really independent and study the law without the influence of partisan twenty-something know-nothings trying to take over America. And we would all be the better for it.