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Should Supreme Court Justices Have Fewer Law Clerks?:
Michael Barone has an op-ed in the Washington Times arguing that Supreme Court Justices should have fewer law clerks. According to Barone, the fact that Justices have four law clerks these days has led to more confusing and less clear legal opinions. The Court's opinions are no longer crisp and simple, as they were in the 1920s, but rather are complex, long, and divided. Here is the evidence Barone offers in support of his conclusion:
  The proliferation of law clerks — justices got two in 1948, three in 1970, four in 1978 — has proliferated separate concurring and dissenting opinions.
  The two-clerk era, saw an annual average of 107 opinions of the court, 78 dissents and 33 concurrences. In the three-clerk era, there were 146 opinions of the court, 134 dissents and 73 concurrences. In the four-clerk era, when the Rehnquist Court started hearing fewer cases, there were 118 opinions, 98 dissents and 65 concurrences.
  In other words, there were 104 separate opinions for every 100 opinions of the court when justices had two clerks, 142 when they had three clerks and 138 when they had four.
  And the opinions got more complex. In the 1920s, Chief Justice William Howard Taft encouraged justices to agree on unanimous opinions, and when justices disagreed there was usually just one crisp and clear dissent. Today on many, many cases, we get hundreds of pages of opinions, and justices stating agreement with parts I, II(B) and IV of the majority opinion and disagreement with parts II(A), II(C) and III. You can't read them without making a flow chart showing each justice's position first.
  Once, Supreme Court opinions were widely read and understood by interested citizens. Now, they're mostly read by law professors and practicing lawyers paid $500 an hour or more to do so — and by law professors and law firm partners making hiring decisions, who want to know which opinions their applicants have written. All this has resulted in opinions that complicate rather than clarify the law and encourage litigation rather than set clear rules everyone can follow.
  Is Barone correct? I doubt it. First, notice that Barone's evidence is actually pretty weak. The numerical differences Barone identifies are quite small, and his other claims seem a bit suspect. For example, Barone's numbers suggest that the situation actually improved slightly when the Justices went from three clerks to four clerks. The number of opinions filed per case declined a bit, contrary to his theory. Also, is it really true that Supreme Court opinions were widely read by the public in "the old days"? When was that?

  Let's assume Barone is right that opinions are more complex and less clear today than they used to be. The question is, why? The most likely explanation is the dramatic change in the Supreme Court's docket over the last 80 years. Federal law used to be fairly narrow, and the number of cases that worked their way up to the Supreme Court was small. In that era, the Supreme Court used to take lots of simple and straightforward cases. It didn't have any discretionary jurisdiction until 1925, and even after 1925 used to take a good chunk of the cases petitioned.

  These days, the scope of federal statutory and constitutional law is much broader than it used to be. The Justices receive more than 8,000 petitions every year asking them to review lower court cases, and many of those cases are very complicated. The role of the Court has shifted as the number and complexity of petitions has grown; the Court has tended to reserve its role for the most difficult and important cases that have divided the lower courts. The Court takes fewer cases, but my sense is that the cases are on average more difficult and more complex than they used to be.

  There may be multiple reasons why the Supreme Court's opinions tend to be more complicated today, if in fact they are. Computers have made writing and editing easier, which may have led to longer opinions. And law clerks may have played some role in facilitating the shift to a more selective Supreme Court docket, because each clerk spends about 25% of his or her time helping the Justices sift through the 8,000 petitions and identifying the most difficult and important cases to review. At the same time, my sense is that the primary reason for any increase in the complexity of opinions isn't the law clerks. The primary reason is that the cases the Court hears these days are, well, more complex.

  Thanks to How Appealing for the link.
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