Eliminating the law clerks 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 heartily agree!
No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her....
Justice Harry Blackmun’s papers show that, especially in his later years, clerks did most of the opinion writing and the justice often did little more than minor editing, as well as checking the accuracy of spelling and citations. Ginsburg, Thomas, and Anthony Kennedy reportedly have clerks write most or all of their first drafts—according to more or less detailed instructions—and often make few substantial changes. Some of O’Connor’s clerks have suggested that she rarely touched clerk drafts; others say she sometimes did substantial rewrites, depending on the opinion.
There’s no reason why seats on the highest court in the land, which will always offer their occupants great power and prestige, should also allow them to delegate the detailed writing to smart but unseasoned underlings. Any competent justice should be able to handle more than the current average of about nine majority opinions a year. And those who don’t want to work hard ought to resign in favor of people who do.
June 6, 2006
First, fire all the law clerks.
Stuart Taylor Jr. and Benjamin Wittes think the Supreme Court Justices have too much free time -- what's with O'Connor taking 28 junkets in '04 and publishing 3 books in 4 years? -- and it's making them arrogant. (Link for subscribers to The Atlantic... or use this link, which is good for 3 days.)
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I heartily support the aim, although I hesitate somewhat at the means. I would suggest that going back to two clerks - perhaps three for the Chief Justice - would be more appropriate than a single clerk.
This is an imperfect solution that attempts to do an end-run around a thorny problem: the writers, I suspect, would much rather impose term limits on Justices, but since that involves a messy amendment process, intimidation works too.
In general, though, not a bad idea. Needs modiciation, but not a bad idea.
twwren: For the reason Justice Stevens gives -- quoted in the article -- for drafting his own opinions: “Part of the reason [I write my own drafts] is for self-discipline … I don’t really understand a case until I write it out.” In legal analysis, which is very complex, you have to write to think -- you think by means of the process of writing. You can't just have a hunch and let someone else wrestle the materials into shape for you. You have to pursue the hunch, by reading the materials and crafting the sentences that use the materials and frame your arguments. You have to see when the opinion won't go where you thought it would go. You have to face the reality that the precedents and the facts of the case don't fit together the way you thought they would. It is only by doing your own work that you deal with this reality.
A legislator looks at a text and decides whether to vote for it. His vote is the act of making it law. A judge has no comparable power. He must be held to the discipline of using the tools of legal analysis.
TRJ
"To that, I would say that those branches should tighten it up, too. The legislative branch, in particular, would do well to do away with much of the publicity-hound nonsense and get down to actually legislating."
That is precisely why I would ideally like to remove all electronic recording devices from the Hall of the House and the Senate Chamber. As a compromise, I'd be willing to start with simply removing cameras from the Senate, and let's see how that goes.
Of course, if I had my way, electronic media in the Senate would be a redundant concern, to some extent. But one step at a time.
By the way, I agree with Stevens on this. I was very disappointed to discover that Our Hero has lapsed from the habit of writing first drafts, for precisely the reason Stevens and Ann note. Rehnquist wrote two things back in the 80s that were very influential on me: he wrote in his book on the Supreme Court that there's something about getting an opinion printed - of standing there with it in your hands - that makes you take it a lot more seriously. Whenever I write something of any length now, I draft it until I'm happy, and then I print it to a PDF file, so that it can't be changed easily. There's something about the seeming permanance of it which forces you to take the process more seriously. Rehnquist also wrote that his view of Conference was that it was best that each person stated their views, and that the differences were better hashed out in writing, rather than verbally, around the Conference table. "It'll work itself out in the writing," I think, is a very strong argument.
You can have an idea in your head that makes perfect sense until you actually sit down to write it, at which point it turns to mushy. Most of the time, that has the salutary effect of forcing you to tighten your reasoning; in a few cases, it has the invaluable effect of making you realize that you had missed something important, and sometimes even something dispositive.
This is actually why I had high hopes for the internet: that it might re-instaurate the written word, or at least, put a new premium on the ability to write clearly, pursuasively and concisely. Sadly, faced with the certain doom of that awful prospect, certain folks who will remain anonymous invented things such as "Flash", and demanded that the web must have more "dynamic" content, which is to say, more dynamism and less content.
And no more research assistants for lawprofs!
John: I heartily agree! I don't hire a research assistant. I have in the past occasionally hired a student, but only to collect materials and to write background memos. I've never had anyone else draft any part of any of my articles (or blogposts!). I don't much see the point of having someone else read or write for you. You have to do your own reading or nothing gets into your head. And you have to do your own writing in order to think and in order to have the writing represent your thoughts.
And let me add that I heartily resent having to read anything ghostwritten. It galls me no end that the cases we are reading and studying so closely are written by recent law school graduates and not the judge who's signed his name to them.
I should probably be putting this on one of Ann's other threads (guess which one) but doesn't one of you ex-SCT law clerks want to argue for the value of the "guild approach" where the masters trained the up-and-coming apprentices by actually having them "do" the work (to which the masters would then affix their signature)?
Ricardo: You're reminding me that way too many of the people who should be criticizing the Justices on this are themselves former clerks who therefore have a conflict of interest. The Justices are given way too much deference by lawprofs. They are willing to criticize Justices whose results they don't like, but they are insufficiently critical of the institution and its practices.
My position? Every U.S. Supreme Court Justice should have a dozen law clerks, at least. They're fun to have around, they carry stuff, and they cost almost nothing! The kids are happy to have the work and something to put on their resumes. Everybody's happy and what's wrong with that?
What the heck. I'll let everyone here in on a little secret: Research and writing has nothing to do with it. That's right. Judicial outcomes are determined by immutable political prejudice (or by coin flip, in the case of dedicated swing voters) and opinions are assembled by randomly cutting and pasting clippings from the briefs.
It's true!
"...too many of the people who should be criticizing the Justices ... have a conflict of interest."
Ann: You're making an excellent point. It's hard to get people to criticize things they grew up in, were indoctrinated in, are in some way working for, are in awe of, or are scared of. But isn't this exactly what is needed, if our prime goal is to hold institutions to high standards? And who better than the people most intimately connected to the institutions?
This is odd: "It galls me no end that the cases we are reading and studying so closely are written by recent law school graduates and not the judge who's signed his name to them."
Reading this thread reminded me of the New Criticism that florished before more fashionable "-isms" arrived from France. Back then, the rallying cry was that it's all about the art (book), not the artist (author). Today, I suppose, that view seems a bit old fashioned.
While I largely agree with what Ann has to say on this thread, there is still a good bit of wisdom in the New Criticism as applied to judicial writings. Before getting too caught up in the "they don't work hard enough" meme, let me suggest a different thought -- perhaps the SCOTUS judges who don't write their own opinions know something we don't about their own ability to communicate clearly and concisely.
Whether the judge grows in wisdom and understanding through the process of writing opinions is nice if it happens. But the point of the exercise is to generate a sound decision by means of an opinion that makes sense of the law so that future cases raising the same issue can be decided similarly. If the judge's writing skills aren't so great, it's just as well that he relies on clerks to handle that task, at least to the extent of generating a first draft (by the way, that's also how most of the briefs written in large firms get generated -- young lawyers write drafts that senior guys edit). How that relationship -- judge and clerk -- works in each instance is, I think, best left private. What matters is the quality of the opinion, particularly at the appellate level, that results from the collaboration.
That Stevens drafts his own opinions is fine, but doesn't make them anything special to look forward to. Does anyone really think that a typical Stevens opinion is that much better than what comes out of the chambers of Ginsburg or Thomas? Kennedy is different because his opinions, particularly on big cases, are so often disappointing exercises in bloviated rhetoric -- and, sadly, I think the bloviation (the kind of stuff Scalia mocks as the "sweet mystery of life" passages) are added by Kennedy when he is editing whatever the kids give him as a draft.
So, Ann, perhaps we would be better off if Kennedy used a bit more of the kids' drafts, and added a little less of his own special touch. Just a thought, as I have no inside information about how any of the justices manage their relationship with their clerks.
Ann,
I'm impressed that you do all your own work. I was at a law firm for many years, and had a hard time delegating research on briefs. After a few years, however, work became impossible without it, and one developed reliable helpers. But I always wondered every time whether we'd missed some case...
Of course we, er, never did.
Here's an AP story from just a couple days ago about the low number of cases heard by the Supreme Court.
"they can make things vague enough to keep petitioners keep coming back to them for further instructions, and they have."
This can be achieved by narrow rulings, too. Justice O'Connor is frequently praised for preferring to write narrowly, but I tend to think that whatever grounds you defend that practice on, don't say it's "modest". It isn't. It means that future cases must come back to the Court; it means that neither lower courts nor yourself in future cases are bound by learly-enunciated rules. That isn't to say there is no justification for minimalism, but that those advocated by Sunstein et al are fairly unconvincing.
"you'd need to provide for a fixed term in the constitution, or at least provide for a delegation to Congress of the power to fix such a term. Some people have proposed this, but it is generally viewed as a very long shot."
I'm loathe to tamper with it, but I have to admit, the idea of a fixed, non-renewable eighteen year term does have its attractions.
Ann said: "A legislator looks at a text and decides whether to vote for it."
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Since when do Senators actually read the nonses in what they vote for? We are continually inundated with stories about how 800 page Christmas tree bills are printed at midnight, and voted on at 8 AM, then followed by all the stories for the next year from legislators lamely explaining that they just hadn't had the time to see the sole-source earmarked language providing for a pygmy elephant training facility in Wishek, North Dakota to improve tourism.
Maybe if they actually read the bills, and took reading comprehension tests before being authorized to vote, there would be less time for mischief.
Law clerks provide cheap labor, which they provide in return for building their resumes.
David Blue raises an interesting issue. Would the quality of opinions decline if there were fewer clerks?
Certainly the opinions would be shorter and have fewer footnotes. They would probably be both less clever and less pedantic. They would be less like the writings of law professors and more like the writings of lawyers.
I'm not sure it's a net loss.
Marghlar
Art. III Sec. 1: "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour...."
Arguably, judges who have clerks write their opinions for them are not engaging in good behavior. That is a very elastic criteria and gives Congress a great deal of latitude, if they chose to use it.
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