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.
Proof positive of why I do not read Atlantic Monthly and do read this blog.
Nice post. Next step: make the President enforce the law by his own damn self.
These fundamental truths should apply as well to the legislative branch of government
I would add that the substance of the article also calls for limiting the Justices to one clerk each, not firing all of them.
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Michael Barone has made this argument too, I think. But what, I wonder, are credential-obsessed law students to do if not seek out a high profile clerkship to validate their sense of their own academic excellence? Let’s be honest; about half as many of us would seek clerkships if they weren’t relevant to law firm hiring, weren’t relevant to getting a teaching position, and weren’t relevant to professional respect.
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Supreme Court justices often complain about pay. Let’s make everyone happy: Omit one clerk, and add what would have been that clerk’s salary and cost of benefits to each justice’s pay. The justices could opt out of this program.
I’m guessing that’d be a $65,000 – $70,0000 pay raise.
(I’m only half-joking.)
Make them hold court outdoors, in the fresh air and sunshine. Get rid of the building.
Professor Kerr,
I think you are being a bit unfair on Taylor and Wittes. Their suggestion is to eliminate the clerks active role in the opinion writing process but continue to play an active role in reviewing cert petitions. (Although their argument is not persuasively made.) If Blackmun’s papers accurately depict the degree that his clerks played in shaping “his” opinions, or if Taylor and Wittes reports about the “very active” role that Kennedy’s, Ginsburg’s, and Thomas’ clerks have in writing opinions, do you find this problematic? Is Judge Posner’s system the preferred way for a judge to handle opinion writing? Or do you think that the Justices (or judges in general) benefit from seeing a first draft that is produced by the clerks? Simply making fun of their suggestion by offering more outlandish and exaggerated suggestions is not a counterargument; it’s puffery.
[OK Comments: Alex, I'm both at an advantage and a disadvantage in responding to you. My advantage is that I actually know what clerks today do, whereas Wittes and Taylor are just guessing; my disadvantage is that I can't say what I know. With that said, I'm comfortable that my post is actually a pretty fair response on the merits if you get the drift of it. Of course, you'll have to trust me that I'm not just Defending The Guild. Whether you chose to do that is entirely up to you.]
Of course, a little full disclosure couldn’t hurt, right? Something along the lines of, “I should mention that I was a Supreme Court clerk myself.”
[OK Comments: I think readers of this blog know that. Similarly, I assume that readers know that Wittes and Taylor are not former clerks; I assume that they didn't have to disclose that for us to analyze their arguments.]
This proposal seems terribly inefficient. Shouldn’t we keep the clerks and fire the….oh, never mind.
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Your satire actually came close to convincing me that Atlantic Monthly was right.
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The mock is ok but the the role of the appellate level judge seems to have become like that of the gentleman farmer, a role of privilege and as much leisure as he or she wishes. Granted there is a a bit of dabbling in the issues that interest him or her and sometimes they do need to clean up the servants messes (bad clerk!). Lets recall, they have lifetime security, and full pensions…maybe they arent happy w/ the sixdigits that they get, but most law profs and fims dont get half these perks. I clerked in the Court of Appeals, my judge only had 3 clerks yet he certainly managed a full travel, social /schedule while also publishing a book a year. Something we should all aspire to one day.
I agree with Alex. I think your “response” – after the very relevant point about Douglas – does little more than set up a strawman to knock down. Your points are only counterarguments if you take the crux of the Atlantic article to be that justices should work harder. If you take it to be that they should be more ‘hands-on’ in their legal analyses, eliminating secretaries (for example) would be counterproductive; the more time spent making photocopies and scheduling arguments, the less time spent on dealing with cases. Likewise with your snarky comments about eliminating oral arguments and briefs altogether. That “argument” doesn’t follow from their point. I assume – safely, I think – that the article suggests justices should be more hands on in their legal analyses *of the litigants legal arguments.* If that’s the case, oral arguments and litigants’ briefs would be as or more important under the article’s proposal. You may be right, however, that amici briefs would have to go under this proposal, though. In any event, I don’t think the article suggests that the justices should start from scratch on every issue. Your response to this article just shows that the article touched a nerve. A disappointing response.
[OK Comments: Um, like, it was a joke, Kevin.]
I haven’t read the article (I gave up my Atlantic subscription years ago), but if Wittes and Taylor really say (as Alex suggests), that Justice Ginsburg’s clerks have authorial control over her opinions, that’s ridiculous. Maybe things have changed in the 8 years since I clerked for her, though I doubt it, but my experience was: I wrote a lot of words. A lot of them made it into the final opinion. But they did so only when I had accurately captured Justice Ginsburg’s ideas. (How did I know those ideas? Because she told me. We’d always have a conversation in which I got my marching orders, and it was often accompanied by an extensive memo and/or outline that she had prepared herself.) And they always ended up surrounded by lots of Justice Ginsburg’s words. Sometimes I and my coclerks would go home at night while working on an opinion and come back to work in the morning to find that Justice Ginsburg had, in the middle of the night, drafted a section of the opinion (sometimes, virtually all of the opinion) and left it on the dictaphone tape for her secretary to type up. I’d say she was a lot more involved in the drafting than even highly-involved senior partners in sophisticated appellate practices.
(The last bit suggests why I think the whole Wittes-Taylor idea is ridiculous. I think lawyers, of all people, should recognize that a piece of written argument and analysis can be the senior partner’s product even if s/he doesn’t write the first draft.)
If you read Marty Lederman’s post on SCOTUS blog about this topic (see trackback) you will notice that in all likelihood Wittes-Taylor were writing in the same satiric style as Kerr, as demonstrated by their implication of Jonathan Swift’s “A Modest Proposal.”
I just thought that should be highlighted in order to temper the criticisms leveled at Wittes-Taylor.
Orin, if I had to choose between Douglas’s too short legal opinions and today’s sprawling 100 page ones (hyperbole) I would choose the former. Also, if I had to choose between the past in which concurrences and dissents were more rare (or at least less lengthy) versus today where some opinions begin with “Announcing the opinion of the Court for Parts I, II, III-A, III-B, and V,” I would again choose the former.
Also, do not forget that former CJ Rehnquist (and until recently Stevens) had three clerks rather than the full amount they could have. Cutting to one might be too extreme but there may be a case that less is more in this instance.
[ML: The key point, I think, is that it is the Justices themselves who decide how long an opinion is -- and whether an opinion gets a full court majority.]
You know, I didn’t know Prof. Kerr was a clerk for Justice Kennedy until I realized that I first assumed he was a hardcore Republican, then thought he was a hardcore Democrat, and then gave up trying to pigeonhole him. That said, Orin’s posts on Kennedy’s potential vote in Hamdan is worthwhile checking out, no?
Well, I think the most obvious flaw is the presumption that the justices would step up their own work substantially. They have life tenure. They pretty much control how much they work, with or without clerks. In no way would taking away clerks force the justices to work much harder. A justice who only wants to edit could just edit a brief from one of the parties.
Anyone who did not recognize the allusion to “eating babies” needs to put down the computer and pick up something from the Great Books series. Seriously.
ML wrote — “versus today where some opinions begin with ‘Announcing the opinion of the Court for Parts I, II, III-A, III-B, and V’”
That’s so last Term. We’re in the Age of Unanimity, baby. And no footnotes or law review cites either.
Um, like, yeah, I get that it’s a “joke.” But it’s a joke that attempts undermine the suggestion by showing what happens if you take it to its logical extreme, right? And my point is that your comment picks the wrong point to take to that extreme. I’m saying: why not actually engage with the suggestion?
[OK Comments: Kevin, it takes a charitable reading of Wittes & Taylor and an uncharitable reading of my post to conclude that it takes the wrong point to an extreme. You are right that you can chose to read it that way, and if so only two or three of my points in that blog post are persuasive counterarguments. But I have explained why I cannot engage with the suggestion -- given the law clerks confidentiality rules, I can't explain why Wittes & Taylor's assumptions are wrong. So I'm afraid that this will have to do and you will remain disappointed in me.]
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Emily Bazelon and Dahlia Lithwick have added their two cents on the issue here… http://www.slate.com/id/2143628/