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Tuesday, June 13, 2006

Bazelon and Lithwick on Supreme Court Clerks

Emily Bazelon and Dahlia Lithwick have this piece in Slate today on recent criticisms of Supreme Court clerks by Stuart Taylor and Benjamin Wittes, Richard Posner, and others.  Some of those criticisms have suggested that the Court consider reducing or eliminating its cadre of law clerks.  Dan has already written about the Taylor/Wittes article.  Bazelon and Lithwick argue that...well, their argument isn't exactly clear, except that they think getting rid of the clerks is a bad idea.

Orin Kerr recently wrote some critical thoughts on Lithwick, and I think he was basically right, although I think the criticism can be broader than simply suggesting that she leaves behind her analytical smarts when writing about conservatives.  Today's article is illustrative of her flaws, I think.  (Since the kill-the-clerks argument doesn't necessarily have a political valence, if anything today's article would suggest that if Lithwick has a bias, it is less a pure political bias than an institutional bias in favor of the Court and the (generally liberal and well-heeled) institutions, like big-firm appellate practices and elite law schools, that focus on the Court.) 

Lithwick is a great writer, as is Bazelon, and they get in some nice shots and a couple of decent arguments.  But the piece peters out, and one gets the sense throughout that they structured it around their best laugh lines rather than around any coherent central argument.  Back when I was a tyro in journalism school, one of my teachers liked to tell us, "Kill your darlings" -- meaning, don't be so devoted to your favorite lines that you won't sacrifice them to serve the broader piece you're writing.  Therein, I think, lies the problem with Lithwick's writing.  She's indisputably a bright and clever writer, and that's what's advanced her so far as a Supreme Court reporter.  But cleverness ain't thoughtfulness, as I am reminded every time I painstakingly edit one of my own articles, and ultimately there just isn't much of a there there in Lithwick and Bazelon's defense of law clerks.

Not that there aren't things to be said about the recent proposals to reduce the number of Supreme Court clerks.  One thing we might observe at the outset is that it's pretty unsurprising that we focus so much on Supreme Court clerks, but that doesn't make it a good idea.  Law professors, law students, and legal writers like Lithwick tend to fixate far too much on the Marble Palace. Just because the Supreme Court is the highest court in the land, doesn't mean it's the most important court in the land.  In the aggregate, we might want to spend more time thinking about law clerk structures on federal district courts and appellate courts, or on state courts, than at that one lonely institution on First Street.  Indeed, I suspect that those courts have seen many more changes and innovations in the clerkship structure -- some good, some bad -- than the Court has in the past several decades.  Students of clerkships, and more broadly of bureaucratic structures in the courts, would be well advised to turn their gaze somewhere other than the Supreme Court.

If anything, what's noteworthy about clerkships on the Court is how little they have changed, in their basic structure, in the last 60 or so years, other than the increased number.  Bazelon and Lithwick trot out the usual comparison of Justices and their clerks to "senior lawyers work[ing] with teams of more junior ones," but this is more of a credible post-hoc justification for the status quo than a real effort to identify whether the current system is the best means of organizing the system of lawyer assistance for the Justices.  While other courts have experimented with permanent clerks, staff attorneys, and clerks solely devoted to non-argument cases, the Court sticks by the old arrangement, only adding to the number of "secretaries" each Justice receives.  Is this ideal or not?  I'm not sure.  Neither, I suspect, are Bazelon and Lithwick or other defenders of the current setup.  But we might productively ask why the Justices have organized their chambers this way, and why they have not experimented more with the arrangement.  I have some suggestions about this, some of them to the Justices' credit and some not, but perhaps I'll leave them for the comments section.

As it turns out, like Dan (and Orin, I think), I don't really favor eliminating or seriously curtailing the number of clerks devoted to the Justices, and I doubt that doing so would achieve the goals that proponents of this idea are say it would.  But I do think that rather than simply defend the status quo with reasonable but reactive arguments, we should take seriously the notion of the Court as a bureaucratic institution, and ask, as a matter of first impression, what arrangements would best suit the Court's specific needs.  (That's why it won't do for Bazelon and Lithwick to simply say, as they do, that if members of Congress need staffers, so must the Justices.  First, each body has different needs.  Second, the nature of congressional staffing is itself an object of considerable study and occasional reform proposals, and there is no reason to think that the current staff system is all to the good.) 

Is it best to hire clerks with relatively little legal experience?  Maybe so, maybe not.  Senior partners at law firms don't limit their staffs to first- or second-year associates, after all.  And is there any good reason not to farm out the cert. pool to a cadre of permanent staff lawyers rather than the law clerks?  It seems to me an experienced staff lawyer would be at least as skilled, and perhaps more efficient, in sifting through the cert. pool than a group of brilliant clerks with only one or two years' experience, and no prior experience in evaluating cert. petitions.  Perhaps the clerks could write shorter opinions if they had more time to work on them.  The Justices have their own reasons to structure things this way, I'm sure, but that doesn't mean those reasons necessarily serve the institution's best interests, rather than their own interests. 

In any event, these things are worth thinking about, and perhaps the best way to think about them would be to look less at the Court and more at the varieties of clerkship and staff lawyer structures that other courts have used.  Pace Posner, it seems to me that the slow accretion of larger numbers of law clerks on the Supreme Court, without other significant changes to the system, doesn't illustrate the "bureaucratization of the Supreme Court" so much as it illustrates the Court's unwillingness fully to face up to itself as a bureaucratic institution. 

Posted by Paul Horwitz on June 13, 2006 at 05:27 PM in Article Spotlight | Permalink


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» The "SCOTUS Clerks: Pro or Con?" Debate Rolls On from SCOTUSblog
Dahlia Lithwick and Emily Bazelon here. Paul Horwitz reacts here. Our previous posts (with links to Posner, Taylor/Wittes and Kerr) can be found here and here. P.S. Lithwick and Bazelon apparently do not assume that Taylor and Wittes were just... [Read More]

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» The "SCOTUS Clerks: Pro or Con?" Debate Rolls On from SCOTUSblog
Emily Bazelon and Dahlia Lithwick here. Paul Horwitz reacts here. Our previous posts (with links to Posner, Taylor/Wittes and Kerr) can be found here and here. P.S. Lithwick and Bazelon apparently do not assume that Taylor and Wittes were just... [Read More]

Tracked on Jun 13, 2006 7:51:13 PM


One point of clarification: I don't think that variability among chambers is a bad thing with respect to the cert process. I wish there were more variability.

As for the complaint by some that law clerks overselect constitutional law cases because they're "sexy," it sounds plausible in theory but I've never seen much evidence to support it. The rules of the cert pool are fairly straightforward, and a boring tax case that implicates a deep circuit split should get the same treatment as a sexy constitutional law case that implicates a deep circuit split (i.e., the deep circuit split drives the cert recommendation, not the subject matter).

I don't see how staff attorneys would handle those subjects differently, unless they are selected for expertise in particular subject areas. If *that* happens, then one consequence could be that the Court would rely less on the expertise of the Solicitor General's office (and the Federal Government more generally) with respect to tax, patent, and antitrust. Currently, those are areas in which the Court is more likely to asks for the views of the Solicitor General before acting on a cert petition.

Posted by: another anon | Jun 15, 2006 5:21:27 PM

Thanks. Your point about variability among chambers as to cert-worthiness is well-taken, and I don't think I've disagreed with it. My suggestion that we might place cert. memo responsibilities somewhere other than with the current law clerks has less to do with your variability concern than with the notion that reviewing cases for cert-worthiness is something that can be done as well, and perhaps more efficiently, by permanent staffers with experience in this task than by short-term clerks. While such an arrangement might not respond to a concern with variability between chambers, it might respond to a different variability concern that has been raised by some of the folks I mention in my post -- that the current process overselects for constitutional cases and underselects for cases in other areas, such as corporate law and tax. Some have argued that the clerks are biased in favor of the kinds of "sexy" cases they want to work on, or that their relative inexperience in these tricky areas influences their recommendations. *If* that is right, and I offer no strong opinion here, then the staff lawyer arrangement might help, since those lawyers would have no incentive to recommend that the Court take particular kinds of cases, as they wouldn't be working on the opinions anyway. One last note, hopefully not too vague and prose-y. I don't think bureaucratization is either the problem or the answer; it just *is* a fact about any sufficiently large and well-developed institution, and one we should attend to without too much romanticism about the Court as an institution.

Posted by: Paul Horwitz | Jun 15, 2006 4:45:11 PM

I thought Henderson was suggesting that the "numbers" pointed to some probable positive correlation and perhaps causal effect between increasing clerk numbers and the drop in the number of cases the Court now decides on the merits. *That* is the suggestion I wanted to contest.

I don't think there is a straightforward story to tell about the drop in the number of merits cases. My thinking--stronger than a hunch but not a well worked out theory--is that it is partly a result of a number of factors, including (1) the expansion of the cert pool to include 8 justices; (2) more agreement among justices (with the change of personnel on the Court) as to what cases are certworthy; (3) the lack of a consistent ideological majority on the Court reaching out for cases to drive the law in a particular direction.

The first reason--the cert pool--is the chief culprit, I think. It is a quasi-bureacratic system with its own narrow rules as to "certworthiness." My sense (based on some of the literature on the Court's docket, including David O'Brien's Storm Center) is that there was more variability among chambers as to certworthiness before the rise and eventual expansion of the cert pool.

For that reason, I don't understand Paul Horwitz's attraction to the further bureacratization of the cert process by delegating it to a corps of permanent staff lawyers. Bureacratization doesn't seem to me to be the answer but the problem.

By the way, I also think that proposals to slash the number of clerks would force the Court to further bureacratize the cert process. The small number of clerks and the very large number of case filings led to the creation of the cert pool in the first place.

Posted by: another anon | Jun 15, 2006 4:29:57 PM

"Another anon," what story do *you* think the numbers tell? This isn't a trick question or a hostile one, but rather a friendly and open-ended one. To the extent you're arguing, contra Prof. Henderson, that the numbers don't necessarily tell a clear story, and that we have to account for all relevant variables, I agree. It seems to me, though, that the numbers you offer, even with added factors considered, suggest that the number of clerks does not neatly track the number of cases decided. I don't know whether the clerk number better tracks the volume of writing done, although again it is possible that there are intervening factors we would need to consider. It also seems to me that the number of filed cases is certainly unrelated to the number of clerks (and, in any event, I suggested one thing we might think about is a corps of staff lawyers to take over the cert. pool process). All of which suggests what I think Prof. Henderson was agreeing with, that reducing clerk numbers won't necessarily solve the problems that some of those advocating such a step have said they would. But, as I say, you may have a different take on what the numbers mean, and I'm happy to hear it.

Posted by: Paul Horwitz | Jun 15, 2006 11:22:43 AM

William Henderson: "The numbers are too large to ignore."

Yes, but they don't tell the story you think they do.

The number of cases decided by opinion at the Supreme Court has fluctuated over the years. It generally dropped after the Taft's judges bill of 1925 (when the Court got control of most of its docket by certiorari). It began increasing in the 1960s and then peaked in the 1980s at 160+ decisions a year.

But the big dropoff of decided cases from 160 to about 80 per year is a recent phenomenon, starting in the mid-1980s and accelerating in the early 1990s. The Court, however, has been allotted 4 clerks per associate justice (and 5 for the Chief) since the 1970s. So I don't see the correlation between the number of clerks at the Court and the number of decided cases that you do.

Also, while the number of decided cases has dropped recently, the number of cases *filed* at the Court has continued to grow.

Posted by: another anon | Jun 15, 2006 11:05:21 AM


I read both the Taylor/Wittes and Lithwick/Bazelon articles. And completely agree with your analysis. The numbers are too large to ignore: Over the last 60 years, the number of published opinions have decreased from 160 to 80, and the number of elbow clerks have increased from 1 to 4 per Justice. It is unclear what is driving these trends; it is also unclear whether cutting the number of clerks would have the effect Taylor and Wittes claim. But it is "worth thinking about." This issue, which requires some additional investigation, is not going to be resolved on a blog.

... And the "Kill your darlings" point is something I have learned over the years. I am glad to know that professional writers have struggled with the temptation to build an article around a good line. bh.

Posted by: William Henderson | Jun 14, 2006 11:48:12 PM

This is a silly (and internally incoherent) post, Prof. Horwitz. First you belittle Lithwick, as anony describes. Then you blast her and Bazelon for merely criticizing the arguments of Taylor et al. from the perspective of current law firm and congressional staffing practices rather than giving a complete history of the Supreme Court clerkship in the context of the bureacratic nature of the Court. Then you turn around and say that you also don't agree with Taylor et al. but that the whole shebang is "worth thinking about." Well, that's obvious, but it doesn't really stand as a cogent counterargument to Lithwick and Bazelon.

Posted by: another anon | Jun 14, 2006 11:52:58 AM

Dahlia Lithwick is a journalist and opinion writer, not a legal scholar. Her job is to produce smart, witty articles and columns several times a week, working under deadline-- something very few people can do well, and on the whole she does it exceptionally well. But Lithwick's job is not to produce the world's most exhaustive analysis. Anyone who writes as much as she does is going to have some pieces that aren't as good as the others.

It's fair enough to disagree with her arguments or find them unpersuasive in a particular piece, but why go after her level of talent as well, with snide lines like "Therein, I think, lies the problem with Lithwick's writing. She's indisputably a bright and clever writer.... But cleverness ain't thoughtfulness."?

Dahlia Lithwick is a hotshot writer and public intellectual, and most law professor bloggers would eat their right arms to have her job. If you can't, I suppose the next best thing is to announce that's she's a lightweight. Nice.

Posted by: anony | Jun 14, 2006 9:41:42 AM

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