January 8, 2018

"Getting rid of law clerks would eliminate the harassment problem and get judges doing their own work."

"Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court’s members 'are almost the only people in Washington who do their own work.' That’s not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones."

Writes Glenn Reynolds in the Wall Street Journal.

It really is a very creepy and elitist system, and the unreadable cases — do the judges even read their "own" cases? — are a form of corruption.

On my suspicion that judges have lost track of what's in their own opinions, here's a passage from Woodward and Armstrong's "The Brethren" (which I've blogged before):
[A] clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” [Thurgood] Marshall retorted. He had never said that.

Yes, the clerk insisted.

No, never, Marshall was sure. “Show me.”

The clerk brought the bound opinions.

Marshall read the relevant section.

“That’s not my opinion, that’s the opinion of [a clerk from the prior term],” he declared. Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

61 comments:

Bay Area Guy said...

My rough, uninformed understanding is that it's very prestigious to become a SCOTUS clerk.

You get to pow-wow with the Justice and other sharp clerks on abstract legal theories for a year; then you get a big-ass partner-track job at a big-ass lawfirm with a big-ass bonus.

What's there not to like?

PB said...

They'd retire sooner, too.

Mattman26 said...

The clerkship is about as good as the judge is, and the same is true of the opinions that come out of the judge.

I clerked for a judge on the Sixth Circuit (not the most prestigious circuit by a long shot) after graduating reasonably high up in my class from a state law school with a pretty decent reputation. But this was not No. 1 at Harvard on his way to the Supreme Court.

My judge was a great guy to one and all, who did his level best to get it right, and would never--not in a million years--allow a ruling to go out unless he was on board with every word of it.

And the clerkship was an absolutely great job to have. I learned a ton, undoubtedly became a better lawyer than spending that year reviewing documents at a law firm would have made me, and got at least a minor leg up for future career opportunities.

Win-win, as far as I can tell. (I like to think I served ably.) I'd hate to think we'll cancel out those job opportunities because some judges will defer excessively to clueless youngsters (which essentially means those judges suck), or because some judges will behave inappropriately toward those youngsters (ditto).

Amexpat said...

There should be a term limit of 18 years for SCOTUS Justices. To make it fair, every two years a new Justice should be appointed. That way, absent death or premature retirement, every President would get 2 appointments during a 4-year term.

Mark said...

With the thousands of cert petitions filed, one can easily see the need for the assistance of clerks in going through them as a practical matter. One can also see the absolute denial of justice when the person(s) passing on the merits of cases are not the judges/justices, but unappointed, unconfirmed, inexperienced newly-graduated people who never practiced law a day in their life.

Big Mike said...

(which essentially means those judges suck)

Careful there! You’re talking about Saint Thurgood Marshall.

Chuck said...

The main illustration by Althouse, was ssuredly an aging/incompetent Thurgood Marshall problem, and not a law clerk problem.

Virtually every working judge of any consequence in America -- state and federal; trial and appellate; Article I or Article III -- works with law clerks. Glenn Reynolds seemed to place an inordinate and inexplicable focus on the US Circuit Courts of Appeal and the Supreme Court. Has he been in a state court lately? A trial court?

I'm a big fan of Reynolds' and Althouse's legal commentaries, and the WSJ column by Reynolds is interesting. But it's not any sort of serious solution. I'm not quite sure what the problem even is.

Tommy Duncan said...

"Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

The man was a genius. Can we have another "genius" thread featuring Thurgood Marshall?

Vance said...

It's not just a problem with the Courts. I work a lot in worker's comp, with a commission and a bunch of administrative law judges that, frankly, suck. And the peon who writes the Commissioner's opinions knows less about the law than I do about Oprah Winfrey's snack habits.

--Vance

lgv said...

Opinions written by clerks!!!!! This is my shocked face.

Written opinions are so ridiculously long they couldn't possibly be written by the judge. Somehow, we've come to accept that the longer the opinion, the more thoughtful the judge, when it more likely the opposite.

Are clerks any different that graduate assistants? While in grad school in the 80's, a professor hired me to write a text book. It was going to be an online version. He was paying me some god awful hourly amount, like $25/hour, to do his work. I think it was half of what his contracted rate was. I had a low opinion of this professor's aptitude, but he was smart enough to figure out how to make $25/hour for doing almost nothing. It was a nice gig, but I hated it. Writing an accounting text book is a living hell for someone like me. I got an internship with a real corporation and gave the gig to a permanent Phd student. In hindsight I should have subbed it out to her for $12/hour.

I'm pretty much convinced the judge says, "I'm voting this way. Here's why in three sentences or less. Go write my opinion. I've got to eat this sandwich, write some blog posts and take a nap."

Paddy O said...

I imagine it's a wonderful opportunity for new graduates. What an amazing chance to work with judges and other elite legal minds.

Yet, is the purpose of the courts to provide job opportunities for elite law school graduates?

It's another element of how the legal profession seems unique having it's youngest participants be in charge of the intellectual contributions. Law students are editors for legal journals. Is there any other field where graduate students do that kind of work?

Law clerks, which is essentially a post-doc, write major court opinions. I guess post-docs in science do major research and publish with their faculty sponsor/mentor, but even still, it seems a massive amount of responsibility to be given to the, by definition, least experienced members of the profession. Even if they're the best and brightest of the least experienced.

It's like making an Annapolis graduate the captain of a frigate.

To me it suggests that court opinions involve more gamesmanship in law than applied legal knowledge gained over the course of a long career.

Paddy O said...

lgv, makes the helpful analogy with writing text books. That's a good comparison in part. Writing a textbook, however, isn't about building constructive research, it's a way of providing basic information for those learning a new field. It's good exercise for teaching what has been done.

A better analogy for law clerks writing Court opinions would be if professors had graduate students write monographs of original research.

robother said...

From John Marshall crafting his own opinions to Thurgood Marshall, clueless as to what's in his opinions. The Constitution's in the very best of hands.

Jake said...

Chuck - Article I judges?

Matthew Sablan said...

I hear if you do a good job as a clerk, you can even become the ruler of the Queen's Navy.

Matthew Sablan said...

"That way, absent death or premature retirement, every President would get 2 appointments during a 4-year term."

-- The entire point of the lifetime appointments was to make it less partisan.

gspencer said...

". . . the older opinions are shorter and more intelligible than the newer ones."

Today's law clerks (beginning in the mid-1970s) have to prove to the bien pensant, in which they number themselves, that they thoroughly know The Bluebook: A Uniform System of Citation.

robother said...

Wait'll some future clerk tells Roberts about his opinion that the taxing power of the Constitution gives Congress plenary authority to substantively regulate every activity of Americans, whether or not it effects interstate commerce.

jimbino said...

I see the heavy involvement of law clerks as a good thing. It can't help but lend diversity to the deliberations and judgments on a court that consists of a bunch of humanities majors with little expertise or advanced training in STEM or economics, all of whom but Gorsuch are not only monotheistic in declared belief, but limited to Jews and Roman Catholics. Any justice that atheists, humanists, agnostics or freethinkers hope to get may well depend on involvement of the clerks.

traditionalguy said...

Fake Law! That explains why I lost those sure fire appeals. It wasn't the Judge taking bribes, it was his clerk.

Mark said...

If you are a litigant, screw you. But at least a handful of brand new law school grads have a nice job.

Nonapod said...

Are Law Clerks generally unpaid?

MikeD said...

What PB said at 11:14! win,Win.

Luke Lea said...

Youth and inexperience are problems. A few years ago clerks were arguing that polygamy might ought to be made legal. Ditto for cousin marriage. Why not? https://goo.gl/q18ekk

n.n said...

The first solution addresses a symptom and it is a de facto solution. The second addresses the concern that the judge, not the clerk, was elected on merit.

The first should be addressed through a religious/moral (i.e. behavioral) or voluntary protocol. The second should require the judge to have full knowledge of "his" opinion before signing it, and the clerk keeps his position either as an assistant or intern (i.e. vocational training).

n.n said...

clerks were arguing that polygamy might ought to be made legal. Ditto for cousin marriage. Why not?

Ostensibly, there is no reason at all, other than political congruence. These orientations are political unfavorable or unprofitable, so they were selectively excluded from advocacy and activism.

readering said...

Not an expert on the Supreme Court but a few observations. The number of petitions filed in the Supreme Court has gone up exponentially since the turn of the 19-20th C. And the number of amicus briefs has also gone up exponentially in the past half century. I think one reason why there used to be more opinions each term is there used to be more categories of cases the Court was required to hear, until Congress amended the statute to increase discretion.

And then there is the fact that the Supreme Court feels duty bound to cite its own precedents, which requires more and more research and more and more requirements to reconcile/distinguish/reconsider its prior decisions.

Ironically, the makeup of the Court hiring all these clerks is becoming more and more specialized, with academics, sitting court of appeals judges and the appellate advocate bar making up the entire court (and all educated at Harvard/Yale). The closest to an exception is Clarence Thomas, who was appointed at an unusually young age, with only a brief tenure on the court of appeals before being elevated to meet the affirmative action wishes of the GHWB administration.

Birkel said...

The problem so many lawyers have is that they believe they are part of a guild. Bull shit. They're part of a scam. They're lobbyists who convince state legislatures to draft laws that require people to pay lawyers. It's a racket.

And the opinions of the judges are often so damned convoluted as to be incomprehensible to average people. That makes the law an ass. It makes the assumption that people know the law idiotic. Nobody can decipher the law and nobody can follow it either.

But here I am only speaking of the federal courts and state appellate courts.

You're often lucky to find competence in a local trial court judge.

Paul McKaskle said...

While Reynolds makes good points, I'm afraid the justice system has grown so large that the volume overwhelms the ability of even good judges to keep up with the workload. The number of trial judges could be increased to cope with the demand and even increase in the number of appellate judges is possible (but more problematic). But this would simply result in more cases being appealed to the Supreme Court. However, at the Supreme Court level (both federal and state) there can be only a small number of judges and increasing their number would increase the difficulties in arriving at consistent opinions. This is why at present so many clerks are required to winnow through the huge number of petitions for certiorari made to the Supreme Court--someone once estimated that if a Supreme Court Justice read all of the petitions filed it would take him or her more than the number of waking hours in the year just to complete this task leaving no time at all for deliberating on the merits or writing opinions (or convincing other justices of the merits of the proposed opinions).

The California Supreme Court uses, primarily, permanent or career clerks and some become so close to understanding his or her judge as to be thought as an alter ego. This eliminates the the variability which often results from having annual clerks. Whether this is better is a matter of debate but it has worked reasonably well in the past for the California Court.

I agree with the problem of long and complex opinions. The complexity of statutory law (and an increasing number of appellate opinions which have to be reconciled or distinguished) does mean opinons can't be as short as in the past but when I assembled opinions for a Civil Procedure casebook I found that short opinions often illustrated major points more accurately than more recent, longer opinions. The quality of the judges is important, if all Justices had the writing ability of Justice Robert H. Jackson, the problem of length and clarity would be greatly reduced.

To digress on Jackson's writings, what could be clearer yet short than: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein;" or "But when notice is a person's due, process which is a mere gesture is not 'due process';" or "Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. A citizen's presence in this locality, however, was made a crime only if his parents were of Japanese birth. ... Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable."

Birkel said...

readering:

We note your casual racism.

Birkel said...

Paul McKaskle: " The complexity of statutory law (and an increasing number of appellate opinions which have to be reconciled or distinguished) does mean opinons can't be as short as in the past..."

Nonsense.

Courts should write opinions that say the following, repeatedly, until the legislature writes more clearly (and thus removes so many of the treacherous clauses added to advantage some group over another):

No reasonable person could be found to have understood this law. Since there is no way a reasonable person could understand this law, this law is unenforceable.

Lather. Rinse. Repeat as necessary.

Force the legislature to legislate. Separation of powers could begin with any of the three branches. The judicial should do its part.

readering said...

I agree that opinions don't have to be long. As someone who has practiced in both California and New York I have long been struck by the difference between the two highest courts. The typical California Supreme Court opinion is very long and the typical NY Court of Appeals opinion much shorter, although the gap has been narrowing of late.

Brando said...

My main takeaway from that book was that Thurgood Marshall was the lightweight of the court, relying entirely on his clerks and just milling about.

I think clerks are fine for the legal research, but the writing and analysis should be left to the judge. But then I also would like a lot of things that will never happen.

gspencer said...
This comment has been removed by the author.
Gabriel said...

@Paddy O.:It's another element of how the legal profession seems unique having it's youngest participants be in charge of the intellectual contributions.

The hard sciences work this way too. Older scientists are more likely to be directing research than carrying it out or writing about it.

Fred Drinkwater said...

But Matthew, it took Sam years of work to get there. It wasn't all screwing other men's wives, kissing Whitehall asses, and hunting for treasure in the Tower basements, you know.
Think today's clerks are up to the task?

William Chadwick said...

Not exactly on topic, but regarding Glenn Reynolds and his Instapundit blog, it's weird to me how, with the rise of the Dumb Trumpkins in the commentariat, even on pro-freedm blogs, his comments draw so many people who are anti-libertarian: i.e., who believe in liberty only as long as people are doing things they want them to do.

EDH said...

Weird, the chief economist of Wisconsin's Revenue Department has the same last name as the IRS Commissioner: Koskinen.

Lem said...

I thought it was a prestigious thing to have in your resume.

Also a way to mentor minorities or something.

Left Bank of the Charles said...

What a clever plan to pack the federal courts, and not just the Supreme Court but the Cicruit Court of Appeals and possibly the District Court too: fewer clerks, more judges, and Trump to appoint them. But Glenn is missing an obvious element that would make his plan genius. The new judges should mostly all be women!

readering said...

Thurgood Marshall as an advocate appeared before the US Supreme Court 51 times. He was the winner 43 times.

Inga said...

My youngest daughter clerked for Justice Prosser, she said he behaved in an exemplary fashion.

Dust Bunny Queen said...

They'd retire sooner, too

THIS. If you are too old to be able to do the work, you need to retire, quit and be replaced.

Having some secretarial help or someone to help proofread for you, is just fine. Hiring people to "make up" your opinions for you. To read the material for you. Then all you do is rubber stamp the work. If it isn't your personal work and personal opinion based on your personal qualifications to be Judge or Justice..... Not acceptable.

If you can't or won't do the job....you are out!

Hagar said...

"Everybody" agrees Marshall was a great advocate. The question is about his performance as a Justice of the Supreme Court.

robother said...

Didn't Thurgood Marshall as advocate benefit in his Brown v Board briefs and oral argument from some ex parte coaching by Frankfurter?

Mark said...

"Everybody" agrees Marshall was a great advocate.

Of course, when it is said that "everybody" agrees (in quotation marks), then you can be sure that a lot of people do not.

If Marshall was a great advocate, he would have adopted John Marshal Harlan's minority opinion in Plessy that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

Instead, the essence of his argument in Brown was that school segregation is wrong because social research showed that it led to bad feelings in black children and they could not learn unless they were surrounded by whites. I suppose that is "great" advocacy since the Court adopted his argument, but it sure as hell is insulting, offensive and condescending to African Americans.

Mark said...

Of course, "bad feelings" was also largely the rationale Kennedy used to invent a right to "same-sex marriage."

Might be great advocacy, but it is crappy law.

hombre said...

When I clerked for a federal judge, we had several prisons in the district. I wrote hundreds of opinions in habeas, civil rights, general civil and criminal cases. The judge provided guidelines at the outset of my employment. If the case was "interesting" we discussed it and every draft I sent him was returned with penciled "suggestions".

The low level of productivity from SCOTUS and other federal judges today results from inventing the law rather than following it. It takes a good deal of paper to rationalize legalizing abortion or gay marriage or to override the President's statutory authority over immigration. It takes very little to acknowledge and follow the law.

Original Mike said...

Bruce Ohr demoted again?

robother said...

Mark: "Instead, the essence of his argument in Brown was that school segregation is wrong because social research showed that it led to bad feelings in black children and they could not learn unless they were surrounded by whites."

Interestingly, even the data underlying the social research that was cited for that proposition contradicted that conclusion. Nothing gets in the way of liberals on a mission, though. Looking back on the fiasco of inner city schools destroyed, inner city blue collar neighborhoods destroyed, billions of education dollars wasted on busing all in the name of a wrong-headed social theory, you have to wonder, will anyone ever admit that it was a total failure?

anti-de Sitter space said...

"It takes very little to acknowledge and follow the law."

Presumably that's why it took so long for McD v Chic.

readering said...

I thought the justification for anti-sodomy laws was punish people for having bad feelings for one another.

Liza Moon said...

dear lady, i am in alt imagining what legal puzzles would make such a short list, whilst cringing at how such a list would be written.

hombre said...

William Chadwick (2:53): "... Not exactly on topic, but regarding Glenn Reynolds and his Instapundit blog, it's weird to me how, with the rise of the Dumb Trumpkins in the commentariat, even on pro-freedm blogs, his comments draw so many people who are anti-libertarian: i.e., who believe in liberty only as long as people are doing things they want them to do."

Lefties have invaded the Instapundit "commentariat"? Who knew?

William Chadwick said...

The Dumb Trumpkins just have a different form of hostility to a free society, hombre. Story old as time.

Douglas said...

I don't know what Marshall was like in his earlier years on the Court, but by the early 1980s, his clerks were writing his opinions without any editing input from him. That's why his opinions read like homogenized law review student notes - they were written by law clerks whose entire legal experience to that point consisted of writing law review notes. I don't think Marshall changed even a comma of the clerk's drafts. Now, to be fair, Marshall decided what the result would be and, I believe, what the principal ground for the opinion would be. The rest he left to his clerks. That was not true for any other justice then, or since, so far as I know.

Douglas said...

Paul McKaskle wrote: "This is why at present so many clerks are required to winnow through the huge number of petitions for certiorari made to the Supreme Court--someone once estimated that if a Supreme Court Justice read all of the petitions filed it would take him or her more than the number of waking hours in the year just to complete this task leaving no time at all for deliberating on the merits or writing opinions (or convincing other justices of the merits of the proposed opinions)." My recollection is that Justice Brennan reviewed all the cert petitions personally, not relying on clerks or the clerk pool at all. He needed only a few seconds for most of the petitions: he could tell usually just by reading the question presented whether it was a matter that ought to be heard by the Court. That's the result of experience and judgment. One might think that all the Justices would have sufficient experience and judgment to do the same thing.

PackerBronco said...

""Opening the volume flat, he tore the page out. “There. It’s not there now, is it?”

================
Ah, the physical manifestation of the liberal method of interpreting the constitution.

Mountain Maven said...

Term limits and mandatory retirement for all elected and appointed fed employees. Say 24 years and age 80. But we're stuck with dummy hacks like Sotomayor forever.

Steven said...

Ditto for cousin marriage. Why not?

Cousin marriage is legal in 19 states (and DC). 11 more explicitly allow you to dodge the state prohibition by getting married in another state without changing your state of residence (30). And only 10 of the remaining 20 explicitly don't allow you to use the cross-state-lines-to-marry-your-cousin dodge.

Cousin marriage is also legal in every other majority-English-speaking country on Earth, every other country in the Americas, every other OECD country except South Korea, and almost every European country (only excepting Bulgaria, Croatia, Montenegro, Romania, and Serbia).

So, yes, why not?

readering said...

That's why I read Althouse comments. For the cousin marriage laws in the Balkins.