Defending the Supreme Court law clerk.

The law, lawyers, and the court.
June 13 2006 3:26 PM

Endangered Elitist Species

In defense of the Supreme Court law clerk.

(Continued from Page 1)

John McCain, R-Ariz., has written four books as a senator. Sen. Joe Lieberman, D-Conn., took 11 private plane trips in 2005. Let's curtail their extracurricular activity as well, and take away Beer Fridays while we're at it. Government work should always be as grim and no-frills as salt mining.

The strongest point that Posner, Taylor, and Wittes make is that by asking clerks to write first drafts, justices lose an opportunity to make their opinions their own. If every justice took the initial crack at putting thoughts to paper or keyboard, as does Justice John Paul Stevens, their opinions might come out sounding somewhat different. But would they really differ in substance? If you give clear and detailed direction for a piece of writing, laying out its argument, order, and building blocks, and then you edit it extensively, you're the one in control. That's reportedly the norm on the Supreme Court. And it was how work proceeded in the appeals court chambers we each worked in.

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Would it be better if permanent secretaries did those first drafts, or if the justices relied more heavily on lawyers' briefs for their initial ideas? Or do the clerk critics have some mechanism in mind that would force justices to write first drafts from scratch?

If Supreme Court justices had to go it alone (or with one rather than four clerks each, as Taylor and Wittes allow for), they'd all finally learn to use the legal research tool called Lexis. They'd give fewer speeches. They would also stagnate alone in chambers with diminishing access to new ideas. They'd undoubtedly survive. But they'd be more isolated and less likely to chase down a hunch, or look at a broad range of historical or lower court sources. They'd likely find the Internet porn cases awfully confusing, too. Maybe they would also retire earlier, which is, perhaps, the hoped-for subtext of all these complaints.

Supreme Court justices have taken some bruising hits in the past few years from conservatives and members of Congress who think judicial independence is an idea that should be eradicated. Now Posner, Taylor, and Wittes want to make them toil long, lonely hours to boot. Way to take all the "fun" right out of defunding the courts.

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Dahlia Lithwick writes about the courts and the law for Slate

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