For Law Clerk Diversity

 Lawyers and law bloggers love a Supreme Court story, even when it doesn't present much news that is "new." So it is with Adam Liptak's Times story about ideological polarization among Supreme Court law clerks. (It's unfortunate, but understandable, that he focuses his attentions on the high court rather than the federal appellate courts.)  It has provoked some interesting responses. In particular, at Balkinization, Jason Mazzone argues: 

 

 

Supreme Court Justices don’t need law clerks in order to hear every argument on every side of a case. The parties, the amici, the lower courts, the law review editors, and, increasingly, the legal bloggers—as well as the other Justices themselves--all ensure every argument is brought forward. While there is some evidence (which Liptak discusses) that law clerks can influence a Justice’s position in certain cases, we should not overstate the effects, particularly in cases with strong political overtones. Supreme Court Justices are very smart and very experienced. It is naïve to think that a 20-something year-old law liberal clerk will be so persuasive that Justice Scalia will abandon originalism or vote to invalidate gay marriage and it is equally naïve to imagine that Justice Ginsburg will be persuaded by a conservative clerk to find gender classification should only be subject to rational review under the Equal Protection Clause. . . . 

[S]urely it is better for a Justice to hire law clerks who will be faithful lieutenants and who will perfectly execute the Justices’s wishes. Liptak’s argument for diversity presents the risk of having a law clerk who tries to manipulate outcomes: providing selective information to the Justice, hiding key facts, burying cert. petitions, inserting language in an opinion to lay the groundwork for overruling a case with which the clerk disagrees, or colluding with clerks in other chambers who share the clerk’s own political disposition

 

I'm unpersuaded.

I agree entirely with Mazzone that it is naive to think that a law clerk can influence a Justice to make major changes in a decision in a major case or change his or her method altogether (although that says little about whether a clerk could influence a Justice to make minor changes in an opinion).  But it is also naive, I think, to suppose that just because every argument in a case is available, each Justice will listen to all of them. One hardly expects Justices to pay much attention to arguments made in law reviews, which in any event often come along after the fact and are increasingly (if still only slightly) not necessarily geared to the judge as ideal audience.  Nor, if we listen to what some Justices have said, do they necessarily pay attention to amicus briefs, beyond skimming them or picking them over for arguments to support conclusions they have already reached.  What is important is not that every argument be available, but that the Justices pay attention to them.  Even if not every clerk-Justice interaction is a deep and searching dialogue, having a clerk with a different ideological disposition surely enhances the possibility that more opposing arguments will be put before the Justice in a way that is harder to disregard altogether.

Mazzone writes that those clerks may manipulate the process.  It seems odd to me that the same Justices that he portrays as immune to influence from 20-something law clerks are somehow not able to monitor for these shenanigans.  In any event, the question is not whether that risk exists but which system is better on the whole.  Mazzone writes that Justices should hire law clerks who will serve as "faithful lieutenants . . . perfectly execut[ing] the Justices' wishes." But that assumes that the Justice's wishes are already perfectly formed; those wishes might change in the presence of more and better information.  Good lieutenants follow orders, of course; but good commanders rely on their lieutenants to offer candid advice before the order is given.  They need not surround themselves with dissidents, but neither do smart leaders surround themselves with clones and yes-men [yes-persons?].  Conversely, they should be worried that surrounding themselves with ideological allies will indeed have a polarization effect on their opinions, and lead them to give insufficient attention to evidence and arguments that run contrary to their own biases.  Justice Thomas, in the same article, complains that hiring a clerk who doesn't share his priors would be unpleasant, something that concerns me not in the least, and pointless to boot.  Maybe he's right, but it's also possible he's not living up entirely to the demands involved in being a principal.

As an aside, I note that far more attention was paid to Liptak's article on the lack of ideological diversity between clerks and Justices than to his article, published the same day, on the lack of diversity of background, especially in terms of law school, in the clerk pool -- a story in which Justice Thomas comes out looking much better than his colleagues.  As usual, the attention goes to questions of ideology among the elite rather than to the ways in which the elite itself, left and right, is altogether homogeneous.