About 50 years ago, a young Phoenix lawyer broke the code of silence that is still almost universally observed by former law clerks for Supreme Court justices. The lawyer wanted to sound an alarm.
Most of his fellow clerks, the lawyer said, had been leftists with “extreme solicitude for the claims of Communists and other criminal defendants” and “great sympathy toward any government regulation of business.”
The Phoenix lawyer was William H. Rehnquist, who had clerked for Justice Robert H. Jackson in 1952 and 1953 and who would go on to serve on the Supreme Court for more than 30 years, including 19 as chief justice. In his essay, published in U.S. News & World Report in 1957, he expressed fear that the political views of Supreme Court law clerks were shifting the court to the left.
When his essay provoked an angry response, Mr. Rehnquist retreated, a little. “The resolution of these disagreements,” he wrote in a second U.S. News article, “must await a thorough, impartial study of the matter.”
That day may now be arriving. A new study in the DePaul Law Review claims to show that the political leanings of law clerks do influence the votes of Supreme Court justices.
The study is based on information about political party affiliations collected from more than 500 former clerks, and on standard measures of judicial ideology.
“Over and above the influence of the justices’ own policy preferences,” the study concludes, “their clerks’ policy preferences have an independent effect on their votes.” Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study says, while the presence of additional conservative clerks pushes justices in the opposite direction.
Other political scientists who have reviewed the study said it involves some extrapolation and leaves important questions unanswered, like the exact manner in which clerks influence their bosses. The study itself concedes the point, noting that “the mechanisms by which clerks might influence their justices’ behavior are many and varied,” ranging from “candid and open policy debates” to “deception in memoranda writing.”
The consensus among political scientists uninvolved in the study, however, was that it was careful and suggestive.
“They have shown a correlation,” said Lee Epstein, a political scientist and law professor at Northwestern University School of Law.
“I don’t think it’s so surprising,” Professor Epstein added, “and I don’t think it’s so bad if it’s true.”
Saying that law clerks influence their bosses is not very different, Professor Epstein said, from saying that graduate students influence their professors or that Congressional aides influence members of Congress.
The justices, who typically hire four law clerks a year, certainly seem to think their clerks’ politics matter. The political science professors who conducted the DePaul study, Todd C. Peppers and Christopher Zorn, demonstrate, almost in passing, that justices tend to hire clerks who share their political views.
An earlier study, in The Journal of Politics in 2001, appeared to prove this same point indirectly. In the six years ending in 1998, for instance, more than two-thirds of the clerks for three liberal justices — Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — had first clerked for appeals court judges appointed by Democratic presidents.
Chief Justice Rehnquist, by contrast, drew about 95 percent of his clerks from Republican appointees. And Justice Clarence Thomas, the study found, “never went to a Democratically appointed judge for a clerk.” (Justice Thomas has compared choosing clerks to “selecting mates in a foxhole.”)
Lawrence Baum, who conducted the 2001 study with Corey Ditslear, said the trend it documented continued.
“The conservative justices overwhelmingly get their clerks from Republican-appointed judges,” Professor Baum said in an interview. “With the more liberal justices, the tendency to draw clerks from Democratic-appointed judges isn’t nearly as strong.”
Decades after his U.S. News essay, Chief Justice Rehnquist continued to fear the influence of clerks. In 1996, he wrote a memorandum concerning an arrangement called the “cert. pool,” in which eight of the court’s nine justices had their clerks share the work of screening incoming cases, with a single clerk writing an advisory memorandum to all of the participating justices on whether the case ought to be accepted.
The chief justice had heard “that there are swaps between chambers” and insisted that the practice stop. The pool memorandums, he said, must be assigned randomly, presumably to minimize the possibility that a clerk with a bias would grab a politically charged case and slant a recommendation.
Justice Harry A. Blackmun seemed to have a similar concern. He had his staff annotate the incoming pool memorandums with, among other things, the name of the appeals court judge for whom its author had clerked.
The influence of clerks, if there is one, would seem most likely at the screening stage, where the court decides which of many thousands of cases to hear. Indeed, in his U.S. News essay, Mr. Rehnquist ruled out the possibility of influence once the court agreed to hear a case.
But the DePaul study claims to find influence at just the point where the justices are presumably paying the most attention.
“By limiting the scope of our analysis” to the justices’ votes on the merits of particular cases, its authors write, “we effectively ‘stack the deck’ against finding evidence of clerk influence.”
But they say they found it. What they don’t know, they add, is how it
happens. That question, they say, echoing the young William H. Rehnquist,
must await more study.