The Atlantic Monthly | July/August
by Stuart Taylor Jr. and Benjamin Wittes
here are few jobs as powerful as that of Supreme Court justice—and few jobs as cushy. Many powerful people don’t have time for extracurricular traveling, speaking, and writing, let alone for three-month summer recesses. Yet the late Chief Justice William Rehnquist produced four popular books on legal themes while serving on the bench. Clarence Thomas has been working on a $1.5 million memoir. And Sandra Day O’Connor, who retired to general adulation, took twenty-eight paid trips in 2004 alone, and published books in 2002, 2003, and 2005.
All this freelancing time breeds high-handedness. Ruth Bader Ginsburg tars those who disagree with her enthusiasm for foreign law with the taint of apartheid and Dred Scott; Antonin Scalia calls believers in an evolving Constitution “idiots,” and carries on a public feud with a newspaper over whether a dismissive gesture he made after Sunday Mass—flicking fingers out from under his chin—was obscene. Meanwhile, on the bench the justices behave like a continuing constitutional convention, second-guessing elected officials on issues from school discipline to the outcome of the 2000 election, while leaving unresolved important, if dust-dry, legal questions that are largely invisible to the public.
Many lawmakers are keen to push back against a self-regarding Supreme Court, but all of the obvious levers at their disposal involve serious assaults on judicial independence—a cure that’s worse than the disease of judicial unaccountability. The Senate has already politicized the confirmation process beyond redemption, and attacking the federal courts’ jurisdiction, impeaching judges, and squeezing judicial budgets are all bludgeons that legislators have historically avoided, and for good reason.
So what’s an exasperated Congress to do? We have a modest proposal: let’s fire their clerks.
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.
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. Yet that is exactly what the Court now has—four clerks in each chamber to handle the lightest caseload in modern history. The justices—who, unlike lower-court judges, don’t have to hear any case they don’t wish to—have cut their number of full decisions by more than half, from over 160 in 1945 to about 80 today. During the same period they have quadrupled their retinue of clerks.
Because Supreme Court clerks generally follow a strict code of omertà, the individual justices’ dependence on them is hard to document. But some have reportedly delegated a shocking amount of the actual opinion writing to their clerks.
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.
Cutting the clerks out of the writing will also improve the justices’ decision- making, by forcing them to think issues through. As the eighty-six-year-old John Paul Stevens, the only justice who habitually writes his own first drafts, once told the journalist Tony Mauro: “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.”
This is not to suggest that the justices should have to spend their time on scut work—reading all 8,000 petitions for review filed in a typical year, or hitting the library to dig up obscure precedents. These are the tasks that law clerks used to do. And this sort of thing is all they will have time to do if Congress cuts each justice’s clerk complement from four back to one, as legal historian David Garrow has suggested.
For much of American history, the life of a justice was something of a grind. Watching the strutting pomposity of modern justices, this “original understanding” of the job—as a grueling immersion in cases, briefs, and scholarship—seems increasingly attractive.
Justice Louis Brandeis once said that the reason for the Supreme Court justices’ relatively high prestige was that “they are almost the only people in Washington who do their own work.” That was true then. It should be true again.