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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.
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