Clerks of the justices
Description: Employees of the Supreme Court who assist the justices in research, selecting the petitions for certiorari worthy of review and writing the opinions at the decision-on-the-merits stage.
Significance: Although controversy continues surrounding the extent of influence that clerks wield in the Supreme Court's decision-making and opinion-writing processes, there is little debate regarding the role they play in screening the more than eight thousand petitions for writs of certiorari filed each October term.
Associate Justice Horace Gray was the first justice to employ a full-time clerk in 1882. His clerk's responsibilities included being his personal barber and fulfilling basic secretarial duties. In 1886 Congress permitted each justice to hire a stenographic clerk. Four of the justices of the Supreme Court hired personal clerks, whose responsibilities ranged from running personal errands to conducting basic legal research. During the 1946 to 1969 October terms, most of the associate justices employed two law clerks. In 1970 most of the justices hired three clerks and, in 1980, Congress authorized all the justices to employ as many as four clerks. Scholars found that as the numbers of clerks increased, so did the number of words in decisions, footnotes, and citations to other cases. Although most law clerks serve only one term on the Court, some have stayed longer. Some clerks have worked for more than one justice, and others have become virtually permanent fixtures in the Court. A clerk for associate justice Pierce Butler, for example, served sixteen terms. It is also common for clerks to stay on a few weeks after the term has expired to train their replacements.
Criteria for Selection
The individual justices have complete discretion in choosing their clerks, although most of those selected have graduated near the top of their law school class and have served in an editorial position on their school's law journal. Researcher David M. O’Brien found that four basic factors appear to be central in the law clerk selection process: particular law schools, particular geographic regions, prior clerking experience on particular lower courts for certain judges, and personal compatibility. Although justices traditionally select law clerks from Ivy League law schools such as Yale and Harvard, they also draw from other schools, including their alma maters. Justices Sandra Day O’Connor and William H. Rehnquist, for example, are well known for choosing law clerks from their alma mater, Stanford Law School. Geographic region is also a prominent factor in the justices’ law clerk selection process. For example, justice Hugo L. Black, an Alabaman, preferred clerks who grew up and attended law school in his home state. Several justices regularly selected individuals who clerked in the chambers of certain lower court judges. For example, District of Columbia circuit court judge Skelley Wright's chambers often served as a breeding ground for future Supreme Court law clerks. Personal compatibility, moreover, is valued by the justices when searching for law clerks. Given the intimate working relations that a justice has with his or her clerks, the personal habits of an individual can be instrumental in his or her effectiveness. Personal compatibility can be related to similarities or differences in the ideological proclivities between the law clerk and the justice. Although some justices want clerks with similar policy preferences, others choose individuals with different views to get an insider's view of the adversary's position.
Functions of Clerks
The practice of clerks reviewing petitions for certiorari (discretionary appeals filed by the losing party in lower court to the Supreme Court) began during Chief Justice Charles Evans Hughes's tenure on the Court. Hughes used his clerks to review the in forma pauperis petitions (petitions to allow an indigent person to bypass the costs of filing a discretionary appeal to the Court) that should be granted or denied by the Court. From the Hughes Court (1930-1941) to the Warren Court (1953-1968), the chief justices’ clerks were responsible for reviewing in forma pauperis petitions and preparing short memorandums. A cert pool was created in 1972. The cert pool process begins when an administrator in the chief justice's chambers divides the petitions for certiorari among the eight justices in the pool. A law clerk writes a memorandum (often called a pool memo) to the other justices regarding the lower court and the judges participating in the decision. The facts and contentions of all the parties are presented along with an analysis of the case, such as conflicts among lower court decisions on the issue before the Court. Section 5 of the memo includes a recommendation on the disposition of the case and other relevant information, including the name of the clerk writing the memo. When a pool memo arrives in the justices’ chambers, each justice has one of his or her own law clerks review it. In most cases, the law clerk reviewing the memo echoes the initial recommendation, but in some situations, the clerk will do additional research and write an additional memo. All the petitions for certiorari are reviewed by the single justice who does not belong to the pool. Although the role that law clerks play in reviewing petitions for certiorari is well established, their influence in the Court's decision making and opinion writing is less certain. Certain law clerks have claimed to author most of the justices’ written decisions. Conversely, other law clerks claim that they were responsible only for the footnotes or citation checking in the justices’ decisions. In all likelihood, the clerks’ responsibilities fall somewhere in between these extremes and vary with each individual justice. Nonetheless, the power that law clerks have over the Court's decision making has sparked a contentious debate among the scholarly community. Given that law clerks are not presidential appointees, many scholars argue that they should not play such a principal part in the Court's decision-making and opinion-writing process.
Former Clerks as Future Litigators
Law clerks’ experience reviewing petitions for certiorari and assisting the justices in writing their final decisions offers them an invaluable opportunity to see at first hand the internal decision-making dynamics of the Court. Researchers found that more than 51 percent of individuals who clerked between the 1958 and 1985 October terms later participated as direct or third parties before the Court. This percentage was much higher for law clerks than for those individuals with similar educational backgrounds who did not serve as law clerks. One of the reasons for this high participation rate is that the solicitor general's office, the body that represents the United States before the Supreme Court, actively hires former law clerks. In 1992 for example, approximately half of the lawyers in the office were former law clerks. Because former law clerks have a potential advantage as litigators before the justices, Court rules stipulate that former law clerks cannot appear as counsel for two years after they leave. Law firms also recognize this unique experience, offering former law clerks as much as a $35,000 bonus in addition to their salaries.
- Sorcerers’ Apprentices: One Hundred Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden (New York: New York University Press, 2006), is the most thorough and up-to-date examination of the role of clerks on the Supreme Court. Another comprehensive treatment of the subject with a historical perspective is Bradley J. Best's Law Clerks, Support Personnel, and the Decline of Consensual Norms on the United States Supreme Court, 1935-1995 (New York: LFB Scholarly Publications, 2002). Two works that provide excellent summaries of the functions of law clerks of the justices are David M. O’Brien's Storm Center: The Supreme Court in American Politics (7th ed., New York: W. W. Norton, 2005) and William H. Rehnquist's The Supreme Court: How It Was, How It Is (New York: William Morrow, 1983). For a historical perspective on law clerks, see Chester A. Newland's “Personal Assistants to Supreme Court Justices: The Law Clerks,” Oregon Law Review 40 (1961): 299-317. For the debate regarding how much justices rely on their law clerks and its ramifications on the democratic process, see David Crump's “Law Clerks: Their Roles and Relationships with Their Judges,” Judicature (December/January, 1986): 236-240; John P. Frank's “The Supreme Court: The Muckrakers Return,” American Bar Association Journal (February, 1980): 160-164; Richard A. Posner's The Federal Courts: Crisis and Reform (Cambridge, Mass.: Harvard University Press, 1985); and Joseph Vining's “Justice, Bureaucracy, and Legal Method,” Michigan Law 80: 252-270. The frequent presence of former law clerks turned litigators before the Supreme Court is the subject of Kevin T. McGuire's Supreme Court Practice: Legal Elites in the Washington Community (Charlottesville: University Press of Virginia, 1993) and Karen O’Connor and John R. Hermann's “The Clerk Connection: Appearances Before the Supreme Court by Former Law Clerks,” Judicature (March/April, 1995): 247-249.