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Friday, April 15, 2016

At Least Two More Cheers for Counter-Clerks

The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."

There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.

None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.

A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach. 

After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting. 

 The responses received to my post were interesting and certainly made me think of this question differently, although it doesn't alter my view that the practice of having counter-clerks deserves more attention. Let me list them here. Although I draw on that conversation, no doubt I'm not doing full justice to the nameless commenters:

1) Ineffective. Specifically, the suggestion was made that the imbalance of power between justice and clerk is too great for the counter-clerk position to function well enough. I take no position on this, other to note that it's not unique to this court or to the job of law clerk, and may be even stronger in the case of political appointees in the executive branch who are asked to provide unvarnished advice. I'll also note that it's not specific to acting as a counter-clerk: "normal" clerks may also feel pressure to tailor their work to their sense of the justice's priors or preferences, not in the sense of being a faithful amanuensis, but in the sense of failing to raise (or to spot) questions and criticisms.

2) Justice-dependent. Whether a counter-clerk is effective, or (more on this below) whether such a position is necessary as such, may depend on the justice's receptivity to criticism. A justice might have a counter-clerk but be inflexible in his or her position, or have no counter-clerks but be open to argument from his or her clerks. That seems reasonable enough, but not reason enough not to study the idea of the counter-clerk structure. Also, and this is the point of writers who have talked about Devil's advocate structures in other group deliberation situations, the view that if a bunch of agreeable people work with, and argue with, their their receptive boss/justice in an open-ended non-specific way, they will end up airing all that needs to be aired is susceptible to doubt. Whatever their good intentions, they may still collectively fall prey to groupthink or epistemic closure--indeed, egg each other on into a resultantly polarized opinion.

3) Not necessary on ideological grounds. On this view, justice X is not an ideologue, the chambers never discusses ideology, and so this whole framework is not necessary. I pretty strongly doubt the first two parts of this view. In particular, the fact that chambers discussions are about "the law" and not ideology doesn't say much about how affected they are by ideological priors and other factual and value assumptions. (That's even more true if such a chambers ever discusses "policy" as well as "law," if it's not absurd to distinguish between the two.) And I doubt that Scalia's counter-clerks were asked to talk like liberals at a political convention, so much as they were hired with the knowledge that they thought differently from Scalia on some set of political and/or jurisprudential issues and were then asked to push back as lawyers. But I agree that we shouldn't treat ideology too narrowly here, and we're certainly welcome to think about other bases for Devil's advocacy. Indeed, I think it's the idea of a structural Devil's advocate, rather than a house liberal (or conservative), that is central to thinking about why we might want to have more use of counter-clerks. But given the political nature of the Court and its members on some central set of issues, and the political elements of clerk hiring and the use of feeder judges, it's understandable that ideology is a relevant factor to think about and will often be relevant in the context of the Court. Perhaps our discussion should be about whether justices should, as a norm, hire for political diversity. But I think the counter-clerk question can be separate from that; and many people who think justices have no obligation to hire for political diversity might still think that a counter-clerk is a good idea.

4) What this says about the justices. I got a sense that there was some pushback on the counter-clerk question specifically because commenters thought Justice Scalia's hiring of counter-clerks was taken as a sign of his special or superior virtue, and as suggesting that his colleagues were in some way less virtuous for not doing so. That reaction is heightened if the view is that, despite the presence of a counter-clerk, Scalia voted politically and was jurisprudentially inconsistent. I don't care about the justices as such, for what it's worth, and it is clear to me that the legal profession, academy included and not just former Supreme Court clerks, buys way too much into a "great man/woman" vision of law and history. To an extent, I don't take Scalia's counter-clerk hiring as indicating that he was a terribly virtuous judge or as reflecting poorly on the other justices. To me, that's not the point, any more than one decides the virtues of term limits for justices by pointing to individual stories. I think the counter-clerk idea or something like it is structurally interesting and might be structurally beneficial, and I don't care what it says about the justices as such.

But it's not clear to me that Scalia's practice wasn't a good and praiseworthy practice, or that there is no basis to think the other justices are subject to reasonable criticism for not following it. It does seem to me that many former clerks, and others, are likely to take the practices at the Court when they were working there as reasonable if not normative. I would think the Court's practices are at least as subject to study and criticism as congressional or executive branch practices--probably more. And many if not most former clerks, and others, are resistant to structural criticisms that reflect badly on some or all justices, a tendency about which I've made my views clear on other occasions.

Let me make a last point. The sense in what discussions I have seen is that having a counter-clerk is rendered necessary or useful because the justices hire politically and jurisprudentially congenial people and so need to ensure a certain kind of feedback. A contrary view is that the justices (or whichever justice one clerked for) are open-minded and reasonable and engage in a productive back-and-forth with their clerks. And separately from the counter-clerk question, most people conclude that the justices are heavily influenced by their political priors. So perhaps another structural feature to think about is to get rid of the "elbow clerk" model altogether, or to junk a good deal of it. We could instead have an annual hire (perhaps by someone other than any of the justices) of 36 staff law clerks who can rotate through the justices' offices. It raises administrative questions, of course, but its benefits might still outweigh its costs. Or, for the sake of consistency and ease, one could give each justice one or two elbow clerks and require them to work with the staff law clerks for everything else. 

 

      

Posted by Paul Horwitz on April 15, 2016 at 03:33 PM in Paul Horwitz | Permalink

Comments

Ian Samuel, another Scalia counter-clerk, also wrote a really interesting about his experience: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2760442

Posted by: Josh Douglas | Apr 15, 2016 10:52:17 PM

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