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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.
Will Baude (mail) (www):
I responded to a version of Barone's argument at the Conglomerate.

Also it's worth noting that we have the possibility of a natural experiment here. Stevens (until recently) and Rehnquist hire only three clerks when the other Justices hire four, yes? It would not be hard to look at the year that the other justices stepped up to four clerks. If they're opinions became more "complicated" while Stevens's and Rehnquist's remained the same, Barone would have some evidence. If not, not.
8.2.2005 2:14pm
Zincro:
I am _shocked, shocked_ that a former clerk didn't find Barone's argument persuasive.

My great grandmother always told me that as a child she and her friends would gather after school and read through Supreme Court opinions for kicks, which not too many kids do these days anymore, I reckon.
8.2.2005 2:25pm
Goober (mail):
Clerks, I don't know about. But if they want better opinions, the Court should have more Oliver Holmeses.
8.2.2005 2:35pm
Nick (www):
While sarcasm abounds over the comment regarding whether the "common man" actually read Supreme Court opinions, it does beg the question... shouldn't they be written in such a way that the common man could actually understand them? After all, it is the common man who is affected by those opinions, these are the laws that are supposed to govern our behavior. I don't want to have to consult a lawyer every time I decide to do something... though I suppose lawyers love the fact that I have to... nothing like creating need for your profession.
8.2.2005 2:41pm
cmn (mail) (www):
I wonder how much of the difference is explained by the technological revolutions in both legal research and word processing, which make feasible the drafting and editing of lengthy, exhaustively documented opinions within the time constraints governing both lawyers and courts. I've been told by older lawyers that back in the day when briefs had to be typed and (literally) carbon copied, and when legal research was dependent on the books, briefs were much simpler. Ironically, I think these time-saving devices may in fact have caused lawyers to work even harder than before, because now the bar of perfectionism is set higher than was feasible previously. I suspect that if one were to do an empirical study tracking such factors as number of pages, sources cited, and number of footnotes (particularly those last-second footnotes responding to arguments in other concurring or dissenting opinions), there would be some correlation to the introduction in the Court of word processing and electronic research capability. Just a thought.
8.2.2005 2:47pm
Will Baude (mail) (www):
2 Thoughts.

First, some kids certainly do read Supreme Court opinions for fun long before law school. E.g., me.

Second, it's not at all clear that Supreme Court opinions themselves govern much of the life of the common man. He should probably be more familiar with the code of federal regulations, jurisprudence of his local district court, the state constitution and its interpretations, as well as the vast web of statutory law and local uncodified practices. All of these things are more obscure than today's S.C. Opinions.
8.2.2005 3:00pm
David Kravitz (mail) (www):
I have little doubt that word-processing has contributed to garrulousness both on the Supreme Court and elsewhere. Also, re Goober's mention of Justice Holmes, I wonder. Holmes's opinions for the Court tended to be opaque, confusing, and forgettable. So maybe more concurs and dissents isn't really such a bad thing - if it weren't for dissents, I doubt Holmes would be revered as the "Great Justice" that most see him as.
8.2.2005 3:00pm
PLM (mail):
I second CMN's observation on technology--I started practicing law just before the technical innovations, and practice was much simpler (and, I might also add, much more courteous--it was a profession, not a job.) I even had to read cases in books and encyclopedias like AmJur to do legal research! But, the first important innovation was when the Xerox machine came out (the one which could copy pages from books)and the pace of litigation increased considerably. (The copy speed was a prodigous rate of four pages a minute.) One effect was to make it much more practical to seek writs of mandate on questionable rulings by trial courts, because trial memoranda could easily be cut and pasted into p &a's to support the appellate petition. (In CA one finds a great increase of cases of X v. Superior Court--the hallmark of a writ of mandate in CA--at about the same time that the Xerox machine was invented.) My sense is that the modern Xerox machine had even more effect on the increase in litigation than did computer word processing or Westlaw or Lexis. Early in my career I was involved in a lot of appellate litigation which simply would not have been possible without the Xerox machine. Modern technology has added complexity to the law, but I'm not sure it is to the advantage of law. For example, the ability to find five hundred poorly written cases on a point and having to parse them out in briefs filed with a court doesn't help the analytical process.
8.2.2005 3:23pm
Phil:
I don't think it's clerks fault but cases are a lot more complex. I'm a college student who has taken seveal Con Law classes and I've read cases from Marbury v. Madison through Bush v. Gore (and not just the well known cases) and I have noticed that Marbury and other justices up to Korematsu wrote fairly straight foward opinions. I remember reading Wickard v. Filburn and saying, "Yes. That makes perfect sense. I'm convinced." It's not the same with cases the last 20 years.
8.2.2005 5:17pm
Cato X (mail):
Phil- If you read Wickard v. Filburn and were "convinced" that the Constitution allows the Federal Government to regulate what I grow in my garden for my personal consumption, then Today's opinions should all the more persuasive.
8.2.2005 5:48pm
Mike Dimino (mail):
Unless I am mistaken, there has been political-science research on the cause of the increase in separate opinions in the last century. If I remember correctly, 1941 saw a huge jump in such opinions, perhaps owing to the installation of Harlan Stone as Chief Justice and his resentment at being pressured by Hughes to suppress his own separate opinions as an Associate Justice.

One theory is that Stone and other academics-turned-judges are less willing to acompromise and thus write separately more often than do politician-judges. This probably is the result not just of personality defects of the law professoriate but of the concern of legal teaching and scholarship with criticizing isolated statements in opinions that turn out to have doctrinal consequences that were unanticipated. Academics more than others, so the theory goes, are unwilling to make the mistakes they have been criticizing in the classroom.

But so what if clerks do contribute to the number of separate opinions? Barone and many, many others make the claim that separate opinions confuse the law. My sense, however, is the opposite. With the proliferation of separate opinions, we can be reasonably sure that each Justice who signs an opinion believes in the opinion. In prior years (and still, to a certain extent, today) we could not. (That is still true on state courts, where there is a very low rate of dissent.) The effect of the old compromises was an opinion that was so vague that it could command a unanimous Court but did nothing to settle the law. I would much rather know that four Justices believe X, three others believe Y, and the remaining two believe Z than to get one purportedly unanimous opinion that papers over differences that will sandbag lawyers and clients in a future case.

We should be asking whether the clerks help avoid the opinions that announce a decision without explaining it. (Often opinions of Douglas, B. White, and Rehnquist have this defect, and there are doubtless many others that could be noted.) Sometimes verbosity is beneficial, but only if the words are reasoning and not useless recitation of the summary-judgment standard.
8.2.2005 5:59pm
frank cross (mail):
I can't see how ancillary opinions "confuse" the law. A majority opinion is a majority opinion and is the law. It has to be interpreted. Additional opinions can only help in the interpretation of the majority opinion and what it does and does not say.

I think the real criticism is that these opinions "undermine" the rule of law. They suggest that legal conclusions are not simply a matter of reasoned decisionmaking (the justices can all see reason) but are much a matter of a justice's personal preference. I doubt the increase concurring and dissenting opinions reflects much increase in such personal preference judging, but clerks may better enable justices to express their preferences, rather than just caving in to the majority out of the resource cost of writing separately.
8.2.2005 6:45pm
Stephen Aslett (mail):
Could someone tell me where interested citizens would read these opinions? Perhaps in the early 1800s, Supreme Court opinions may have been published in full in some newspapers, but I've never heard that this was ever done at any point in history.

Did these intrested citizens subscribe to the United States Reports, West's Supreme Court reporter, the Supreme Court Reports: Lawyer's Edition, or even United States Law Weekly? I guess subscriptions were alot cheaper back then.
8.2.2005 7:54pm
42USC1983 (mail):
Orin Kerr wrote: "[M]y 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."

We could argue all day over what is "complex." Instead of doing that, can we agree on the premise that that an ERISA case, e.g., is more complex than a garden variety 4A case? If so, that would mean there would be more concurring and dissenting opinions in ERISA cases than in 4A and other "sexy" (but not necessarily complex) con law cases. My sense is that there are more separate opinions in sexy cases than in really tough stuff like ERISA, antitrust, etc. Hell, my sense is the really complex cases get kicked over to Justice Thomas; and the Court is fine speaking through his singular voice.

Am I wrong?
8.2.2005 9:00pm
Steve Westermann (mail):
I would argue that the main problem with Supreme Court opinions is not their length but their quality. Who has not been frustrated by frequent lapses in basic logic, mischaracterizations of precedent and failure to entertain important arguments that either were or were not raised in the briefs? Since it is impossible for the Justices to perform themselves adequate research and analysis for the number of cases they hear, some—and perhaps considerable—responsibility for quality problems must fall on the clerk system. Which begs the question: why do we have a system where the most important legal decisions in the land are being shaped by complete amateurs—recent law school graduates who have never practiced law, many of whom have never held a full-time job? There is little doubt that the clerks selected are sufficiently intelligent and hard-working to do the job. But experience and professionaly maturity count for something too. Is there any doubt that the current clerks would do a more effective job if they performed the same role after, say, ten years of practice or teaching? Why not create a system where at least some Supreme Court clerks are selected from the pool of experienced lawyers who have the same academic credentials as the current clerks? Certainly there would be no shortage of interested qualified candidates and any law firm or law school or agency would be willing to grant a sabbatical to one of its attorneys to perform this duty.
8.2.2005 9:50pm
Penta:
An excellent question, Steve. No other profession does that.
8.2.2005 10:00pm
W.J.Hopwood (mail):
What concerns me more than the number of clerks the justices have is who screens the appeals? I have heard that the clerks are the ones who screen the appeals and thus in essence decide which cases will or will not be heard. Does anyone know if this is true and if not how are the appeals screened and the decisions made as to which appeals will or will not be heard?
8.2.2005 11:48pm
sammler (mail) (www):
Shouldn't the power these clerks come to hold, as their nominal masters slide into senility, bother anyone desiring accountability in government? Would fewer clerks make this less of a problem?
8.3.2005 7:14am
Lawbot2000:
Yeah, clerks are totally pulling the wool over everyone's eyes and controlling the supreme court. I also hear that a clerk is pulling Dick Cheney's strings who is pulling Bush's strings.
8.3.2005 11:35am
A Country Lawyer (mail):
I was a SCOTUS clerk back in the early 80s and let me assure everyone that the influence of clerks is greatly overstated, especially by the clerks themselves. Even justices who basically signed their names to opinions drafted by their clerks (like Marshall and Blackmun) had strong opinions about how the case should come out. I saw no case where the law clerks influenced the outcome.

The role of clerks in screening cases is also limited. The vast majority of cert petitions are worthless. Clerks have a pretty good idea of what the justices are looking for and if a peitition has any potential merit to it, the justices see it.
8.3.2005 1:56pm
jay:
I'm a firm believer in the notion that work expands to fill the time of the individuals available to do it. If that is an accurate assumption,the Supreme Court would be expected to turn out more pages of majority, dissenting, concurring and other opinions today than it did when fewer people were around to generate the writings.

I've not studied the matter, but I suspect that on a per case basis, the number of pages today is vastly greater than it was in the Supreme Court, say, 50 or more years ago. To be sure, some part of the increase is the product of technology. But probably not all of it. Some of it has to do with more fingers on keyboards and pencils on paper.

Are today's cases more complex than in the past? My gut reaction is yes, but that the complexity delta is less important at the Supreme Court level than at the district court level. In other words, the principles that animate Supreme Court rulings, as well as dissents and concurrences, aren't that different from ones of years past. They largely are playing out in different fact settings, however. But much of that difference falls off as the case moves up the appellate structure.

Are there more things to cite to today in an effort to develop arguments for the courts. No real doubt about that, is there? Does the mere availability of more citable sources create an appearance of complexity when compared to conditions of the past. Again, I'm inclined to think that is so.

As more authorities are cited, do arguments tend to be developed more intricately? I think so - and a consequence of that would be that the responses also are more extensive. That too translates into longer opinions.

So, in the end, I have a feeling that, although staff numbers are a factor, they are hardly the only factor driving the increased number of pages per case that we see in today's Supreme Court and individual justice opinions.
8.3.2005 4:47pm
W.J.Hopwood (mail):
A Country Lawyer and former SCOTUS clerk writes(above):

"The role of clerks in screening cases is also limited. The vast majority of cert petitions are worthless. Clerks have a pretty good idea of what the justices are looking for and if a peitition has any potential merit to it, the justices see it."

So in answer to my query, apparently the clerks do the screening of cert petitions and what the clerks don't like the Justices don't see. This leaves an awful lot of room for legitimate appeals to be ignored (I have one I know about in mind).

Seems like a great deal of power in the hands of unknown and unconfirmed youngsters right out of law school no matter how smart they are and whatever pretty good ideas they may have about what the justices are looking for. So where does that leave the "Equal Justice Under Law" carved in stone above the SC entrance?
8.3.2005 11:22pm
Jim Lindgren (mail):
One small point: The Supreme Court acquired substantial discretionary jurisdiction (by certiorari) in the early 1890s. In the 1925 Judge's Bill, their jurisdiction was made discretionary for nearly all cases.

Jim Lindgren
8.4.2005 3:40pm