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...justices', 'para-judges', 'puppeteers', 'courtiers', 'ghost-writers', 'knuckleheads' 'little beasts'. recent study of the role of law clerks in the United States Supreme Court, political scientists Artemus Ward and David L Weiden settle on a new metaphor. In Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court, the authors borrow from Johann Wolfgang yon Goethe's famous poem to describe the transformation of the institution of the law clerk over the course of a century, from benign pupilage to 'a permanent bureaucracy of influential legal decision-makers'. (1) The rise of the institution has in turn transformed the Court itself.
Nonetheless, despite the extravagant metaphor, the authors do not set out to provide a new expose on the internal politics of the Supreme Court or to unveil the clerks (or their justices) as errant magicians. (2) Unlike Bob Woodward and Scott Armstrong's The Brethren (3) and Edward Lazarus' Closed Chambers, (4) Sorcerers' Apprentices is not pitched to the public's right to know (or its desire for scandal). Instead, it is presented as a more scholarly contribution to the debates--sparked especially by those books--about the influence of Supreme Court clerks on US law. Employing the methodology of 'new institutionalism', they describe an institution transformed at several historical junctures--sometimes predictably, often reactively--to acquire its current incarnation.
This transformation has opened up three main opportunities for clerk influence--in reviewing petitions for certiorari to the Supreme Court, in assisting justices in the decision-making process, and in drafting opinions. Ward and Weiden also examine the background process of selecting law clerks, the increasing competition to secure the clerkship, and a rough profile of the young law graduates who are now entrusted with this role. In the course of this review essay, these claims are described, assessed and finally contrasted with the institution of the judge's associate in the High Court of Australia.
II
The most obvious potential for influence by US Supreme Court clerks lies in their responsibility to review petitions for a writ of certiorari. Known colloquially as 'cert', the grant or denial of certiorari is a matter of judicial discretion, and is the primary means by which cases come before the Court. (5) Supreme Court clerks initially scan cert petitions, provide memoranda on their merits, and recommend that cert be either denied or granted, exercising an important part of what commentators have described as the Court's 'agenda setting' power. (6) Over time, clerks' responsibility has grown in line with the number of petitions to the Supreme Court--which has expanded sevenfold over the course of the 20th century. (7) In the 2005 term, the Court's docket numbered 8236 filings, resulting in 78 grants--a success rate of just under one per cent. (8) Ward and Weiden trace the increase in clerking responsibility to the creation, in 1935 by Chief Justice Charles Hughes, of a 'dead list' of petitions no longer discussed by judicial conference, after which many justices gradually began to delegate the initial review of all petitions to their clerks. (9) Clerking practice changed more dramatically in 1972, when Justice Louis F Powell Jr suggested a system of pooling clerks to provide a single memorandum per petition, in order to meet the workload of the 'ubiquitous things [which] will be with us always'. (10) At the time, five justices agreed to participate--the number has now increased to eight, with only Justice Stevens' clerks working outside of the pool. (11) As a consequence, only two pairs of clerks' eyes may determine whether a petition is brought to the justices' attention--and perhaps only one, once Justice Stevens' tenure comes to an end. (12)
Beyond the certiorari process, clerks enjoy a certain degree of influence in judicial decision-making, by acting as go-betweens for potential concurrences and by persuading their justices to adopt particular arguments, which they are free to propose in private discussions, bench memoranda or more focused, follow-up research. (13) The extent of this influence is difficult to measure, and is perhaps prone to over-exaggeration in the memory of clerks themselves (a drawback of the clerk survey methodology in Sorcerers' Apprentices). (14) Yet Ward and Weiden argue that current clerks are better able to influence the outcome of judicial decision-making because of a series of institutional changes. They suggest that the rise in the number of clerks (now four per justice), the greater time they have to spend on cases, and the number of opportunities they have to trade gossip, strategies and even case assignments all lead to an escalation in clerking influence. (15) Moreover, they describe a more forthright and independent coterie, with 'recent clerks more likely than their predecessors to give their personal beliefs about cases to their justice, to attempt to convince their justice about cases or issues, and to disagree with their justice'. (16) This conclusion is perhaps overdrawn, due to the small survey sample of clerks' testimonies, (17) and even smaller source of justices' responses. (18) As well as bias problems, the authors are thus unable to address more complex changes in clerks' roles during differently constituted courts and during the periods of especial disharmony between justices. (19) If collective influence is their suggestion, it is also curious that Ward and Weiden do not address more explicitly the polarisation and constraints operating between clerks themselves. (20)
Finally, clerks are responsible for drafting the written opinions for many of the justices. The surge in this practice is linked to the Supreme Court's equality principle in opinion assignment, adopted in 1950 first by Chief Justice Fred Vinson and more fully by Chief Justice Earl Warren, to even out the workload of each justice, with clerks taking up the slack for the more 'methodical' justices. (21) In order to distinguish between writing responsibilities, Ward and Weiden produce a typology of clerk opinion-writing. This categorises practices of:
1 delegation: where the justice assigns the opinion to the clerk and later revises the draft;
2 retention: where the justice writes the opinion and the clerk provides citations, footnotes and editing; and
3 collaboration: where both justice and clerk work in tandem toward the construction of the opinion. (22)
They contend that, since 1950, practices of retention have given way to delegation, and cite one commentator's description of the attempt by a justice to draft his or her own opinion as 'something of a quaint idiosyncrasy'. (23) In Chief Justice William H Rehnquist's own words, justices' chambers have become 'opinion writing bureaus'. (24)
As well as providing the detail and origins of these trends in clerking, Ward and Weiden extend their research to law clerk selection. They document the increasing competition to secure one of the coveted 36 places (now numbering over 1000 applications per term), and the rather homogenous coordinates along the path to a clerkship, which includes admission to an elite law school (traditionally Harvard, but increasingly broadened to other schools), (25) excellent academic performance, law review membership and having undertaken a prior clerkship for the right court or judge. (26) In this latter respect, they examine how a few trusted 'feeder' judges supply a disproportionate number of clerks to the Supreme Court, by recommending their own selected (although not yet employed) clerks. (27) In true US style, the authors provide a ranking of feeder justices on their placement success rate, with the top spot going to Fourth Circuit Judge J Michael Luttig (who by 2002 had placed 30 of his clerks on the Rehnquist Court). (28) The authors also discuss the ideological congruence between 'conservative' and 'liberal' feeder judges and their beneficiary justices. (29)
This picture is made more complete by Ward and Weiden's 'outing' of the hiring practices of all justices. They provide data on the overwhelming trend of employing young white males, the slow and uneven appointments of women and racial minorities (beginning in 1944 and 1948 with the first female and African-American law clerks respectively, followed by 1966 and 1967 for the second). (30) They also reveal surprising data, such as that Justice William Brennan never hired an African-American clerk in the three decades he spent on the bench. (31) Amongst the current Court, gender diversity is now important to a few justices, although only Justice Stephen Breyer has reached a 50 per cent rate of employing female clerks, (32) and the rest of the Court is very much out of step with the present reality that nearly 50 per cent of all law school graduates are women. (33) Racial diversity is reportedly important to all justices, yet the percentage of clerks from racial minorities remains low. (34)
According to Ward and Weiden, the evolving role of the Supreme Court clerk has undergone a number of key temporal 'breaks' or 'transformations': in particular, in 1918-19, 1941-42 and 1969-70. (35) These dates are notably unconnected to the watershed terms of 1937 and 1954 (of the New Deal 'switch' (36) and of Brown v Board of Education of Topeka (37) respectively), or the overtly partisan judicial appointments of the 1930s and 1940s (by Democrats) and the 1980s and 1990s (by Republicans). (38) At base, these breaks occur when the number of clerks per justice was expanded by statute--from a single clerk for each justice, funded by Congress, in 1919, to two in 1942, to three (and later four) in 1970. (39) At each juncture, Ward and Weiden claim that clerks have enjoyed an ever greater collective influence, and are now 'turning the process of judging on its head'. (40)
If their major thesis is law clerk transformation, Ward and Weiden's minor theses are equally bold. During the course of the book, they attribute the number of separate opinions in the Court to the clerks themselves, contending that this practice began to rise after clerks' time was freed up by the cert pooling system. (41) They suggest that the increased length of judgments, their overburdened footnotes and their sometimes equivocal tone all stem from delegation to novice lawyers. (42) The authors also suggest that the pooled cert memoranda are less likely to result in a grant of cert by the Court, not only because of the clerks' timidity in writing for many justices, but also because of the clerks' deliberate omission of dissenting views in lower courts, which they attribute to an unchecked partisanship. (43) This leads them to claim that 'the expansion of the cert pool is largely responsible for the steady decrease during the Rehnquist Court of the number of cases granted review and subsequently decided.' (44) These claims seem overstated. Some of the trends in the Supreme Court's output--such as an increasing number of separate opinions and longer judgments--are themselves contested. (45) The declining caseload is as striking as it is undisputed--and yet it is more reasonably traced to factors not mentioned by Ward and Weiden, such as the lesser conflicts between circuit courts in recent years, itself a result of many consecutive Republican appointments or, as one participant recently described it, an increased 'professionalism' and 'centrism' in lower courts. (46) Alternatively, the declining case load may...
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