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Friday, September 10, 2010

What You Can Learn From Studying the Tea Leaves Left by Supreme Court Clerks

For most of the Supreme Court's history, the job of Supreme Court clerk has been both prized and private. There has long been suspicion that the clerks -- who are among the most promising recent graduates from the top law schools around the country -- wield enormous power, sifting the cert pile to advance one case over another for the Court to consider, writing the rough drafts of opinions and, as rumored in some cases, the final drafts of opinions from justices who may not want to work that hard anymore. Still, all clerks are wed to a tradition of secrecy. A clerk works for a justice and then departs, never to utter a word about what went on while he or she was there.

In 1988, Edward Lazarus, who had clerked for Justice Harry Blackmun, broke that unwritten rule when he wrote "Closed Chambers: the Rise, Fall, and Future of the Modern Supreme Court." A few years later, a long-undiscovered memoir by John Knox, who had clerked for Justice James C. McReynolds in the 1930s, was published with juicy anecdotes that confirmed McReynolds as among the worst justices in American history (an anti-Semite, McReynolds refused to pose for the Court's traditional picture because he would have had to stand next to Justice Louis Brandeis, who was Jewish). And in 2007, at the Sunday morning panel for the first Peter Jennings Project event at the National Constitution Center, former clerks Susan Estrich (John Paul Stevens), David Westin (Lewis Powell), Marci Hamilton (Sandra Day 'Connor) and Ben Heinemann (Potter Stewart) opened up in an "off the record" panel for that year's Jennings Fellows.

It is not surprising then that Court watchers keep a keen eye on the clerks for signs of the Court's drift. One of the first hints that Justice John Paul Stevens was about to retire came last year when he neglected to hire clerks for the 2011-2012 term a year in advance, as is the traditional timetable. This week, in an interesting piece in the New York Times, Adam Liptak dissects a trend that would suggest that our present Court has become more polarized: Justices today tend to hire clerks who arrive sharing their point of view rather than, as was the case with the late Chief Justice Warren Burger, and dozens of others, mixing up liberals and conservatives so as to encourage a lively debate.

PJP Board Member Guido Calabresi, himself a judge on the Second Circuit, tells Liptak that he hires clerks from both sides of the aisle, so to speak. But he also diminishes the power of clerks to transform opinions of the justices they work for. “To the extent that justices are really strong, it doesn’t matter,” he remarks. “To the extent that justices are uncertain or weak, it can make a difference.”


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