Disorder in the Court?

When William Rehnquist was appointed to the Supreme Court in 1971, Justice William Douglas sent him a note that said: “I realize that you were here before as a member of the so-called Junior Supreme Court.” Douglas was alluding to Rehnquist’s stint as a law clerk to Justice Robert Jackson during the October 1952 Term. Law clerks were then coming into their own as aides to the justices, especially in reviewing certiorari petitions, or “certs” (which request the Court to hear an appeal), and researching case law as the basis of Court opinions. As one of only three Supreme Court law clerks to return to the high court as a justice, Rehnquist was quite familiar with the Court’s dependence on recent law school graduates for much of its intellectual heavy lifting.

Too dependent, in fact, if one is to believe the account of Edward Lazarus, a former law clerk to Justice Harry Blackmun (October 1988 Term). In Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, Lazarus argues that law clerks have become a crutch for the nine justices and are routinely given far too much responsibility. (After spending just one year fresh out of law school assisting a lower federal court judge—as Lazarus did for Judge William Norris of the Ninth Circuit Court of Appeals—applicants may seek a one-year clerkship at the Supreme Court.) Today, the Court’s 34 law clerks get the first look at almost 8,000 petitions, then write memos recommending which ones the justices should accept or deny, with only one in 100 cases receiving a high court hearing.

With eight of nine justices availing themselves of this “cert pool” (Justice John Paul Stevens is the lone holdout), the clerks act as gatekeepers for those few cases they deem worthy of a Supreme Court hearing. More important, after justices decide to affirm or reverse a lower court decision, they let their clerks draft the opinions. Typically, the justices outline the arguments to be made and then edit their clerks’ drafts (though Justices Scalia and Stevens still author first drafts). Not surprisingly, the clerks relish their ghostwriting role, with some even listing on their resumes the opinions they wrote during their year at the Court!

But these are hardly new revelations. Most notoriously, the Court’s overreliance on law clerks was revealed in The Brethren: Inside the Supreme Court (1979), by journalist Bob Woodward and Scott Armstrong; more scholarly works later confirmed the general thrust of Woodward’s expose.1 And long before The Brethren offered its behind-the-scenes look at the Court under Chief Justice Warren Burger, U.S. News & World Report published a 1957 article, “Who Writes Decisions of the Supreme Court?” by none other than William H. Rehnquist. He criticized the Court for relying on law clerks too much, especially for cert recommendations that reflected the clerks’ ” ‘liberal’ point of view.”

Lazarus reiterates this complaint—but with a conservative “cabal” of clerks as the bad guys. Furthermore, where Rehnquist suggested only an “unconscious slanting of material by clerks,” Lazarus asserts that conservative law clerks exploited “the enormous power of the first draft” to undermine the liberal legacy established between 1953 and 1969 under “Super Chief” Earl Warren. Weekly dinner gatherings of conservative clerks, Lazarus writes, served as “a mechanism for imposing through peer pressure a strict ideological purity” and “coordinating positions and strategy on death penalty stays, cert. petitions, and argued cases.” For Lazarus, such cooperation among clerks of different chambers clearly undermines each justice’s independence on a Court that traditionally acts as nine separate law firms; worse yet, such practices increase the pressure for politically biased rulings.

Focusing on Court deliberations and opinions dealing with capital punishment, race, and abortion, Lazarus argues that a “grand canyon dividing the justices” has tempted the Court to give voice to political opinion rather than impartial interpretation of the nation’s Constitution and laws. With Justices Sandra Day O’Connor and Anthony Kennedy alternating as judicial moderates, depending on the issue, Lazarus maintains that “the act of defining many of the furthest-reaching aspects of constitutional law falls not to a majority but to one essentially omnipotent justice.” Instead of lobbying for these crucial “swing” votes, the justices should be building consensus and speaking—as the Warren Court did with its many unanimous decisions—with one voice.

Has partisan ideology in fact produced “epic struggles inside the Supreme Court”? For starters, Court-watcher David Garrow reports that Rehnquist’s elevation to chief justice in 1986 was unanimously welcomed by his fellow justices, with ideological liberal Justice William Brennan remarking, “Bill Rehnquist is my best friend up here.” Moreover, the Rehnquist Court’s supposed partisan divide pales in comparison with the Court under Chief Justices Harlan Stone (1941-46) and Frederick Vinson (1946-53), where personal and political divisiveness spilled into the public arena. Also, must every split decision of the Court signify a partisan conflict as opposed to an honest difference of opinion? Federalist No. 1 suggested that “wise and good men” will be found “on the wrong as well as on the right side of questions of the first magnitude to society.”

Do young, inexperienced clerks pose a stumbling block for the Court? With fewer cases being decided this decade than in previous ones (95 this last term, down from 175 in the 1986 Term, but up from a low of 75 in the 1995 Term), opinions drafted by the clerks should receive greater scrutiny from the justices. More important, one must take a pretty low view of the character and professionalism of the seven men and two women who serve on the high court to think they would wilt so readily before revolving-door clerks many years their junior. Throw in an almost fourfold increase in petitions over the last four decades, and the cert pool amounts to nothing more than a prudent division of labor.

The law clerk gossip mill offers sufficient protection against political machinations in the cert process, for no clerk would consistently hazard the slings and arrows of fellow clerks’ aspersions for recommending petitions that clearly lacked merit. And with just a few months to establish trust with their justice, clerks have little to gain by attempting to sway their justice according to a political agenda.

When the Court announces its decisions, it publishes its opinions under the names of specific justices, who therefore have both institutional and personal incentives—from stare decisis (or precedent) to professional reputation—not to look stupid. As Justice Douglas is reported to have scolded an errant clerk, “I can see you’ve done a lot of work, but you are off base here. If and when you get appointed to the Supreme Court you can write opinions as you choose.” Just as Michelangelo employed talented apprentices to fill in the details of his monumental paintings, so too can justices utilize the perennial legal eaglets without undermining the Court’s work.

A personal gripe is that in a book highlighting politically charged cases, Lazarus makes scant reference to those involving religion. During his Supreme Court clerkship, the justices ruled on key cases involving “free exercise” of religion (Lyng v. Northwest Indian Cemetery Protective Association) and no “establishment of religion” (County of Allegheny v. ACLU Greater Pittsburgh Chapter). Only the latter makes an appearance, but merely by way of a controversy over the Court holding its annual Christmas party—complete with ornamented tree, taped music, and carols led by Justice Antonin Scalia—in the face of Justice Thurgood Marshall’s annual absence (on professed “separation of church and state” grounds) and a 16-clerk protest. Thus, the modern Court’s vacillation between government neutrality toward and accommodation of religious expression remains fodder for law journals.

By opening the “closed chambers” of the Supreme Court, Lazarus offers those unfamiliar with its inner workings an eye-opening public service announcement. But his legal realism allows the decision-making process to eclipse the Court’s actual opinions. And if the reasoning of the high court should be permanently displaced as the focus of public scrutiny, the nation’s vigilance over this third branch of the federal government will turn into cynicism, to the detriment of American self-government.

Lucas E. Morel is assistant professor of political science and history at John Brown University.

1. See the late Bernard Schwartz’s Super Chief: Earl Warren and His Supreme Court (NYU, 1983), David M. O’Brien’s Storm Center: The Supreme Court in American Politics (Norton, 4th ed., 1996), David G. Savage’s Turning Right: The Making of the Rehnquist Supreme Court (Wiley, 1992), John C. Jeffries’s Justice Lewis F. Powell, Jr., And the Era of Judicial Balance (Scribner, 1994), and James F. Simon’s The Center Holds: The Power Struggle Inside the Rehnquist Court (Simon & Schuster, 1995).