"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?”

"The sincerity of Roberts' intentions can be judged by whether he re-visits Anita Hill's allegations against 'Justice' Clarence Thomas."

"Her testimony was clearly credible and were backed up by a federal judge who remembered Hill telling her about the events at the time they happened."

That's the most-liked comment on the Washington Post article "Chief Justice Roberts says courts will examine protections against sexual harassment." If you order the comments by what is most liked, you'll see just about everything near the top talks about Thomas.

Judge Kozinski announces his retirement... effective immediately.

WaPo reports.

In a statement provided by his lawyer, Kozinski apologized, saying that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike,” and that “in doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace. It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent"....

Kozinski, 67, said although family and friends had urged him to stay on, “at least long enough to defend myself,” he “cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary. And so I am making the decision to retire, effective immediately"...

Sad but true. He could no longer be effective.

There are distinct limits to life tenure.

Political pressure really is a check on power.

It will be interesting to see what Kozinski does with himself now. Presumably, he will take his phenomenal writing and speaking talent and become an important voice in The Reckoning. He's freed from the burden of behaving like a judge at long last. Even as he pushed the limits on how a judge could speak, we can see that the limits were real, and that means that by setting aside the government power he once held, he gets a new power of freer speech, and I want to hear what he says.

"For 20 years, I’ve felt it was too early to speak up about Judge Alex Kozinski. Now I fear it’s too late."

"He Made Us All Victims and Accomplices," by Dahlia Lithwick (at Slate).

I have seen Judge Kozinski dozens of times in the past two decades, moderated his panels, sat next to him at high-powered, high-status events and dinners. My husband will tell you he once fielded a call from the judge to my home, in which Kozinski described himself as my “paramour.” I have, on every single such occasion, been aware that part of his open flouting of empathy or care around gender was a show of juvenile, formulaic bad-assery designed to co-opt you into the bargain. We all ended up colluding to pretend that this was all funny or benign, and that, since everyone knew about it, it must be OK. It never was....

But now it’s 2017....

You don't want to be thought of as a cog in a complicity machine.

Get out!

It's "truly stunning" that the result in the Obamacare case hasn't leaked.

Says Ethan Leib (at PrawfsBlag):

Is it possible that no clerk mentioned what s/he is working on to a spouse?  That no spouse with the information mentioned it to a parent or friend, even accidentally?  That no parent or friend let it leak to a sniffing journalist or day trader in the community?  With an aggressive press corps dying for a scoop, well-connected within the community of people that work in and around the Court, doesn't it seem surprising that a secret could be so well kept? 

Perhaps it seems so amazing in contrast to the way other things have leaked — notably the many national security leaks from the Obama White House. Another way of looking at this picture is with the template that everyone is probably doing what they really want to do. Nothing is actually an impressive feat of maintaining secrecy. People can keep secrets. We're surprised when they do only because of the rarity of wanting to keep secrets.

Just an alternate theory.

"One of the issues that [Thurgood] Marshall enjoyed arguing with his clerks was the question of what was obscene."

Write Bob Woodward and Scott Armstrong in "The Brethren":

He loved to take conservative positions with them, maintaining that anything hard-core could be and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.

What about his liberal opinion for the Court in Stanley? his clerks would ask.

He had meant only to protect people’s privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.

But, a clerk once pointed out, “You said that the right to privacy must go further than the home.” “No,” 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?”

Judges and law students experience a free market... or as the NYT calls it, "a lawless terrain."

It's clerkship time. I mean, it was, when it was, which was not when they said it was. Which was oh-so-stressful for some really terribly elite characters in the legal world. The NYT empathizes, unsurprisingly.

Jan Crawford interviews Justice Scalia at the Federalist Society annual dinner.

David Lat reports:

Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.

Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.

“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.”

On the subject of putting Supreme Court oral arguments on video, Scalia said he disapproved. He thought it would mainly lead to out-of-context clips. He thought he'd look great in those clips though: "I could ham it up with the best of them on television... I’d do very well." Lat calls that boasting, but I see modesty. Best of them implies that he doesn't think he is the best oral-argument entertainer. But he is!

On the subject of attending the President's State of the Union Address, he said: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”

On the subject of hiring clerks from Harvard and Yale law schools:

"The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber."

I should reprise that Vonnegut quote from my 10:20 post. What if you had to argue that they do get dumber? I'll bet you could.

Lat says:

Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.

I must chide Lat for not seeing the political incorrectness of saying "the best minds." Or has Allen Ginsberg's "Howl" made "best minds" seem like a standard phrase? "I saw the best minds of my generation destroyed by madness, starving hysterical naked...." That's not innocuous. "Best minds" should prick up our attention and make us feel that something is not right.

Surely, the applicants that Harvard and Yale smile upon are not really our "best minds." Perhaps they are the "best minds" that are applying to law school in any given year, but I don't think even that is true. You have to do too many things right, too diligently, too early in life to hit the law school application sweet spot and get into the most selective schools. The best minds will have resisted acquiring the conventional indicia of career promise.

Come to think of it, Lat is also wrong to say that "highest ranked" is the preferred terminology for law schools. In academia, "highest ranked" implies highest ranked by U.S. News, and it is the proper thing to loathe U.S. News. It lacks the nuance to perceive the subtle qualities that make our favorite law schools so damned special.

Seriously... I think Scalia, being a good writer and speaker, simply believes that short, simple words are... best.

Clarence Thomas loves to hang out with law students "at their joints, with dead animals on the wall, and old tags... and food I can't eat."

And for law clerks he chooses "the kids I like," with "a preference for non-Ivy League law clerks," because "I'm not part of this new or faux nobility."

ADDED: The discussion of law clerks begins about 39 minutes into this video of Thomas's remarks at the University of Florida Law School. He says he thinks it's important to have diversity, and his idea is to concentrate on his circuit, the 11th Circuit. So he'll look for law students who are near the top of the class in schools in that circuit (which includes Florida).

He's explicitly scornful of the bloggers who refer to the students at the less highly ranked law schools as "TTT" or "third tier trash." It's interesting to me that he's paying attention to the blogs (and, of course, I'm not one of the bloggers who would ever use that term). He also speaks of wanting to visit law schools in his circuit. He has a touching dedication to the southeastern United States.

By the way, this talk at UF consists entirely of responses to student questions, and the questions are excellent. If you go to that 39 minute mark and watch the part about law clerks, keep going. The next question — at about 42:30 — is about natural law.

AND: The material about hanging out with law students is at about 46:30 in the video. He goes on to say "I don't dislike the professors, but I come to law schools to see the students." He doesn't like big events, and he thinks it has something to do with his desire, long ago, to be a priest. He speaks with a real passion for spending time with students.

John Roberts says: Under Rehnquist "the method of analysis and argument shifted to the more solid grounds of legal argument."

"Whether that 'seismic shift,' as Roberts described it, was a good thing is up for debate, though there's little question that Rehnquist was behind the move."

I'd like to see the whole text of that speech. Why did Roberts say that it might not be a good thing? When I first saw the quote that I put in this post title, I thought: Well, that's typical of how each side characterizes what it is doing. We're the judges who are doing real legal analysis, and those others are result-oriented and pursuing their own personal preferences and acting like a legislature. But apparently, it wasn't one of these we're-good-you're-bad remarks. It sounds as though he probably said that everyone on the Court has switched to writing opinions with carefully elaborated legal arguments, and the difference is not between the liberals and conservatives (and centrists) on the Court, but between the Court now and the Court before the Rehnquist. I was just teaching Griswold v. Connecticut the other day and thinking: They would never write this opinion this way if it came up today. It looks so carelessly slapped together by today's standards, yet you can tell by the tone that they thought they were doing a fine job.

But what was good about the old style of opinion-writing? What are we missing? Without more of the text of the speech, I can only guess at what Roberts may have said, but I'm thinking that what we miss are the opportunities for insight into what made the Justices think about things the way they did. There's an immediacy to those old cases. The reader doesn't feel that a squad of bookish law clerks has replaced all human feeling and intuition with properly scholarly verbosity. All that verbiage distances us and makes the layperson think: It certainly looks like they know what they're doing. In fact, it may be utter nonsense, but good luck figuring that out.

It's tiresome, workmanlike, and uninspiring. In such an environment, who will care much about the role of the Constitution limiting whatever it is government decides to do to us?

If Rehnquist represents something Roberts is ambivalent about, does Roberts aspire to his own seismic shift?

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:

The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.

Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.

Justice Alito opts out of the cert. pool.

He's rejecting the efficiency of the system of shared law clerks in which clerk writes a memo relied on by Justices using the pool to decide whether to grant the petition to the Supreme Court to hear a case.

A petition accepted that must later be dismissed as “improvidently granted” is a significant embarrassment to the clerk in question. On the other hand, it is hard to get into trouble, [Pepperdine School of Law dean Kenneth] Starr said, by recommending a denial. “The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” he wrote.

The justices decided 67 cases last term, about half the number in an average year two decades ago. But Justice Alito has said the rise of the pool and the size of the docket are unrelated.

Starr's theory implies that they are related, and Alito's statement was made last year. Perhaps he's changed his mind.

The interpretation of carpeting.

Remember the way Jeffrey Toobin — in "The Nine" — belittled Justice Anthony Kennedy through the interpretation of carpeting?

[Justice Anthony] Kennedy's vanity was generally harmless, almost charming -- sort of like the carpet in his office.

Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches -- O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit is "called shot" home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars -- garish touches that made the office a sort of tourist attraction for law clerks and other insiders.

When I read the book, I wrote:

What the hell? So what if Kennedy has proletarian taste in carpet? Does that mean anything about him? And, supposing it does, why would a man who likes thick carpet and bright colors be less suited to make decisions for us than someone with high-class, refined tastes? Who are these asinine clerks who are trying to take the justice down a peg because of his carpet?...

[Toobin is] promoting the theory that Kennedy -- as the next sentence reads -- "tried hard, maybe too hard, to impress"... Kennedy is a ridiculous man, don't you know...

I'm thinking about that now, as I eat breakfast in the elegant restaurant in a beautiful, historic hotel in Austin, Texas and stare at the floor:



Maybe it's not so much about high and low class taste as it is a matter of Eastern and Western taste. Yes, I know Sacramento (Kennedy's home town) and Austin are far from each other. This hotel reflects the styles of 1886 and the tastes of a cattle baron. Sacramento was a gold-rush town in the 1800s. But some rough, adventurous people got rich in the 19th century. Shouldn't east-coasters like Jeffrey Toobin — he was a New York City preppie — and — I'm thinking — those law clerks — show a little respect for the sweep of American culture?

About Justice Kennedy's garish carpet and the way his desk is wedged in a corner.

Let's take a look at this passage from Jeffrey Toobin's book "The Nine: Inside the Secret World of the Supreme Court," page 147:

[Justice Anthony] Kennedy's vanity was generally harmless, almost charming -- sort of like the carpet in his office.

Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches -- O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit is "called shot" home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars -- garish touches that made the office a sort of tourist attraction for law clerks and other insiders.

So, let's see. Some law-clerk source of Toobin's was all... Omigod, you should see the carpet in Kennedy's office. It's all red like thick red like something you'd put in a theater set and it has like these garish stars all over it, so whenever our friends come in late at night we always go into Kennedy's chambers. I am always all you have got to see these garish stars like festooned all over the thing. I mean, like O'Connor has these really tasteful Native American thingies and Ginsburg has all this really high-class opera crap, and Stevens has that Babe Ruth thing because he actually saw Babe Ruth. My friend was all O'Connor and Ginsburg and Stevens all have stuff that like represents actual interests, you know, represents who they are. So it's like Kennedy is thick red carpet with gold stars, you know what I mean? Now, we all say that to each other whenever we want to crack up. It's always good when you want to roll on the floor laughing to have this really thick, plush, Kennedyesque, red carpet with garish stars to roll on.

What the hell? So what if Kennedy has proletarian taste in carpet? Does that mean anything about him? And, supposing it does, why would a man who likes thick carpet and bright colors be less suited to make decisions for us than someone with high-class, refined tastes? Who are these asinine clerks who are trying to take the justice down a peg because of his carpet?

And what the hell is a "theater set"? If you mean the carpet seemed like the kind you'd find in the aisles or lobby of a theater, that is not the set. The set is up on the stage, and the kind of carpet that would belong in the set would depend on what the play was. We're not using plush red with gold stars for "Long Day's Journey Into Night" or "Waiting for Godot."

Back to the passage that is irking me so bad:

All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection.

Now, what's the problem? He's got the good taste to pick the best paintings? Or do you think he's hogging paintings that the National Gallery would like to have on display for the general public? I'm willing to bet that the National Gallery is lending paintings that would otherwise be in storage. So now you're knocking Kennedy because he likes art? That makes him inferior -- more grandiose -- than the justices who display their personal memorabilia? Why?

What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of the room to shake his hand.

Who's imposing that interpretation of the placement of the desk? There are any number of reasons why you might choose to position your desk in a corner. In fact, if Toobin wasn't in the middle of promoting the theory that Kennedy -- as the next sentence reads -- "tried hard, maybe too hard, to impress," most readers would probably think the corner was a rather humble position for a desk. Or maybe the light is better over there. But Kennedy is a ridiculous man, don't you know. He has red carpet, paintings, and a desk in the corner. Q.E.D.

Jeffrey Toobin on the 3 most important revelations in his new book "The Nine: Inside the Secret World of the Supreme Court."

"[A]t descending levels of specificity."

Inside the Secret World of the Supreme Court -- that's the subtitle -- so this better be pretty revealing.

The theme of the book – not exactly a revelation, I suppose – is the growth of the conservative movement and its effect on the Court.

Right: That is in no way a revelation.

I start with the birth of the Federalist Society shortly after President Reagan’s election and show how young conservatives like John Roberts and Samuel Alito were drawn to Washington and flourished there. To see that story spelled out over twenty-five years was – to me, anyway – a revelation.

That's not inside the Supreme Court either. (Where, I've heard tell, it's a secret world.)

Second, the book contains the first detailed, behind-the-scenes reconstruction of what happened at the Court during Bush v. Gore – a case which obsesses and fascinates me. As time passes, I believe the significance of the case cannot be overstated.

Hey, I feel like I already read that book by Jeffrey Toobin. It looked like this. How can this possibly be the "first" anything about Bush v. Gore? Specify a revelation. Jeffrey Toobin has realized, with the passage of time, that the case is really, really, incredibly important, even more important than the last time he wrote a book about it. That may be a revelation, but it's a revelation about the inside of Jeffrey Toobin's head, not the inside of the Supreme Court.

Where's my Secret World?

Third, I disclose that David Souter nearly resigned in protest over Bush v. Gore. That story, in one way, illustrates the magnitude of the case.

That's it! That is the nugget from the inner sanctum. David Souter nearly resigned. Because if he had actually resigned, it wouldn't have been a secret. Good thing he thought twice and kept his seat, because otherwise there wouldn't have been any news from the Secret World.

But wait. Toobin had "interviews with the justices themselves" -- the dust jacket says. Asked about that, he says he won't say how many of the justices he interviewed. And he says some of the law clerks told him to go to hell. So that's something from the Secret World. Attempts by Toobin to gain access are met with curses.

And he did talk to Sandra Day O'Connor, albeit from outside the Secret World. Per Toobin, she's "appalled" at the Roberts Court.

"Harnessing irrational law firm egotism" for the public good.

David Lat has an op-ed in today's NYT, about the giant bonuses law firms are giving to Supreme Court clerks: $250,000, on top of a salary of nearly $200,000.

In recent years, the practice of law at the nation’s largest firms has become much more of a business and much less of a profession. Firms have been squeezing more billable hours out of their associates, abandoning less lucrative practice areas and showing the door to partners who don’t bring in enough business — measures that would have been unheard of in the profession’s more genteel days.

So this bizarre competition among prestige-hungry law firms to collect the most young legal rock stars actually represents a healthy check, however modest, on this profit-maximizing behavior. By harnessing irrational law firm egotism to serve the rest of the profession, enormous clerkship bonuses achieve an impressive, increasingly difficult feat: getting top law firms to contribute to something other than their own bottom line.

You can make up all kinds of theories about why some ridiculous behavior is actually for the good. I'll have to think about this one some more. It may seem hard to care if law firms compete with each other self-destructively, but try.

A $200,000 bonus to Supreme Court law clerks for signing on with a law firm?

No. Don't be silly! That was last year's rate.

Oddest -- and saddest -- reason for paying so much, from the managing partner at Sidley Austin, Carter Phillips: "they're used to working hard. They can't get through their clerkships without putting in significant hours, so you know they can put in 2,200 hours at a firm."

Why not just buy two lawyers?

What's with all those male Supreme Court clerks?

Eugene Volokh asks why are there so many more male Supreme Court clerks than female? His first guess is:

Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)?

Oh, please. I know it's in question form, but really...

Obviously, you have to be very smart to make it to Supreme Court clerk, but the behavioral requirements to make it to that position are extremely demanding. I don't know precisely what one needs to do and not do to make it, but I have observed some things in the recruitment of new lawprofs. I'll begin with a shocking revelation: There isn't a single former Supreme Court clerk at the University of Wisconsin Law School. Why? This is a question I've often asked myself. (Maybe Eugene can help me out.) It's not that we don't interview people with this impressive credential. We often do. It's not that they are snubbing us. We end up not making offers. It's uncanny. I don't want to make generalizations about people, so I'm holding my tongue.... holding my furiously typing fingers.

...

I've just spent 15 minutes trying to write the next sentence to that paragraph. I give up! Maybe if I was the Supreme Court clerk type, I'd have framed that damned sentence. Because you need me to. I say no. I won't. Nooooooooooooo. I don't wannaaaaaaaaaaaaaaaaaaaa.

ADDED: Amber makes a smart comment here, which makes me feel like a jerk for not linking to her blog post, which Eugene linked to, especially since my previous post here is all about clicking on links. That was soooooo wrong of me. So let's go to Amber's place. I mean, go there. Read the whole thing.

An excerpt:

A well-regarded liberal judge on the same circuit reported nearly identical percentages. Since a circuit court clerkship is essentially required for a Supreme Court clerkship, if fewer women clerk at lower levels, then the pool for Supreme Court clerkships will be smaller. (As a side note, I do find it interesting that comparatively few women clerk. Is this because they want to cash in at the firm for as many pre-baby years as possible? Are women less likely to expect a spouse or lover to follow them to clerkships in remote parts of the United States than men are?)

Maybe a lot of judges really don't want persons who might become pregnant to be clerks. Care to share any stories about judges -- maybe even impeccably liberal judges -- who have revealed their prejudice against pregnancy and motherhood? I could recount a shocking one, but I won't.

On the behaviorial point, which we're discussing in the comments, let me speculate about why women might act and feel very different about being a law clerk. I'm much older than those who are doing clerkships now, but for me, being a clerk is too much like being a secretary. A guy may like the feeling of being someone's right hand man. You can say right hand woman, but it's not a normal phrase. Being a close, subordinate assistant resonates with a long line of inferior positions offered to women.

So that's my speculation: clerking doesn't seem so strikingly advantageous to a woman the way it does to a man. We may want do it because we've been told this is the best path to start your career, but something inside says I don't like the look of myself in that position.

ONE MORE THING: Please connect this discussion to an analysis of the style of writing and reasoning found in Supreme Court opinions.

Stop the ghostwriting, let's go back to orality.

We were just talking about Supreme Court clerks here yesterday, and now there's a New Republic piece by Judge Posner, reviewing two new books on the subject:

Today's opinions are longer--a dubious virtue. There are more separate opinions, most of which are ephemeral. Today's opinions are more polished, more "scholarly," and more carefully cite-checked, but these are modest virtues. Neither judges nor their clerks are scholars. The scholarly apparatus of judicial opinions belongs to the rhetoric rather than the substance of judicial decision-making....

Although today's Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten. Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.

To say the least! Editing is not writing. You can try to make it look as though you've written something, but unless you've done the drafting, the ideas did not come out of your head. No touch-up job can compensate for the failure to do the real work of composing, of reading the cases and briefs and fitting the ideas together to see if the answers really lie where you intuitively believed. If someone else fits the pieces together for you, you haven't faced up to the lapses and disconnects. Someone has worked to fill in the gaps and make things look coherent.

Am I right to be so suspicious of the Supreme Court's work? It comes out of a black box, and as Posner says, the Court is preoccupied with confidentiality:

The Court's preoccupation with the confidentiality of its internal workings makes an illuminating contrast with the English judicial tradition (now in rapid decline because of caseload pressures) of "orality." Everything English judges did was to be done in public, so that their performance could be monitored. They did not deliberate, they had no staff, they did not have libraries, they did not read briefs: on the bench they read the cases, the statutes, and the other materials that the lawyers handed up to them. (So appeals might take days to argue, which is why the tradition has eroded.) Our Supreme Court (imitated in this by most other American courts) has gone to the opposite extreme, imposing--or attempting with mixed success to impose--a regime of secrecy on the judicial decision-making process.

So, what do you think? Would you like to see a return to the orality tradition? And, of course, it should all take place on television.

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.)

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.

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.

I heartily agree!