SORCERERS’ APPRENTICES

Vol. 16 No. 9 (September, 2006) pp.769-774

SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT, by Artemus Ward and David L. Weiden. New York: New York University Press, 2006. 352 pp. Cloth $39.00. ISBN 0814794041.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-Mail: martinek [at] binghamton.edu.

Each year, the nine justices of the United States Supreme Court begin anew the process of selecting the men – and, increasingly, the women – who will serve as their indispensable professional helpmates for the following term. The crème de la crème of young lawyers, typically hailing from the very best law schools and possessing the most prestigious academic and professional qualifications, vie for the honor of serving as a clerk for one of the justices. Undoubtedly the dream job for virtually every aspiring attorney (and not a few members of the professoriate), clerking on the Court is desirable both in its own right as one of the most unique and interesting experiences possible for those pursuing a legal career and as a credential that will open professional doors far into the future. Some observers, however, have become concerned about whether these eager, young legal minds exert too much influence on the Court’s decision making process. In their meticulously researched and carefully written book, Artemus Ward and David L. Weiden mine a variety of sources – including original data from a mail survey of a substantial sample of former Supreme Court law clerks – and bring to bear an impressive array of evidence regarding the nature and extent of the law clerks’ influence.

The crux of the Ward and Weiden argument is that changes in how the justices go about their business have transformed law clerks from merely apprentices furthering their legal education to important Supreme Court actors in their own right. Specifically, the authors assert that, collectively, the clerks exert substantial influence on the certiorari process through the cert pool. Further, though there is little evidence to suggest that the clerks influence the outcomes in Supreme Court cases, according to Ward and Weiden, the clerks’ influence is evident in the structure, style, and substance of Court opinions. In arriving at their conclusions, the authors eschew both purely benign and purely malign portraits of law clerks and their influence: “[W]e suggest that the influence of the clerk is neither negligible nor total. There is no question that clerks provide a vital role in assisting the Court with its workload. However, it seems equally plain to us that some aspects of the role of the modern law clerk tread perilously close to what many critics see as an unconstitutional abdication of the justices’ duties” (p.246).

Given the relative paucity of information about the role of law clerk and how this position came to be, Ward and Weiden wisely begin by tracing the origination and subsequent institutionalization of the Supreme Court law clerk. The [*770] conventional wisdom is that the Court’s increasing workload prompted the creation of the law clerk. While Ward and Weiden agree that workload pressures can help us to understand why the number of clerks has increased over time, they suggest that the origination of the law clerk position is more properly understood as a function of a particular model of legal education. This model, an apprenticeship model imported from England, involved a general education followed by a legal education through reading legal treatises and commentaries under the supervision of a practicing attorney. Supreme Court law clerks were originally just such apprentices, and their duties were primarily secretarial in nature. In fact, Ward and Weiden characterize the 1882-1918 period as the secretary regime, which subsequently gave way to the research assistant regime (1919-1941) when law clerks provided editorial and research services for their justices. The burgeoning caseloads faced by the justices transformed the clerk role yet again, leading to what Ward and Weiden refer to as the junior associate regime (1942-1969). As junior associates, law clerks continued to provide editorial and research assistance, but they also became “active decision makers(s)” (p.23), scrutinizing increasing numbers of cert petitions, writing bench memos analyzing cases and making recommendations, and contributing more substantially to the opinion writing process.

The contemporary regime (1980-present) the authors dub the sorcerers’ apprentices regime. Indeed, law clerks are even more influential in the gate-keeping process by which petitions are accepted or (more likely) rejected for review by the Court. Of particular note is the increased use of the cert pool, a process in which each participating justice’s chambers is given a share of the certiorari petitions and is responsible for writing a memo on each of them, to be shared with the other chambers. Though this practice enhances efficiency by reducing duplicative effort across the chambers, it has the concomitant effect of reducing the likelihood of independent review by more than one clerk (and more than one justice’s chambers). The sorcerers’ apprentices regime is also marked by increased reliance by the justices on clerks for opinion writing functions. Although, as Ward and Weiden acknowledge, there is considerable variation across chambers as to exactly how the justices use their clerks, on average law clerks are more likely to write first (and sometimes final) drafts of opinions and do so with less and less supervision by their justices.

After tracing the trajectory of change in the clerk role, Ward and Weiden spend a great deal of time, to the reader’s considerable benefit, discussing the selection of Supreme Court law clerks. In some regards, this chapter (Chapter 2) is the most readable in a very readable book. The details of historical and contemporary processes as documented by Ward and Weiden are simply fascinating, and the authors’ extensive use of historical documents (e.g., correspondence between and among justices, their professional colleagues, and applicants) enriches the story they tell. The authors consider the selection of law clerks from every possible angle. [*771] They consider changes in the applicants’ approaches; for example, whereas prospective law clerks previously applied to a single justice, it is most common now to apply to all of the justices. They also consider differences in the criteria and procedures used by the justices for the actual selection. For example, whereas all of the justices evidence partiality toward applicants from the most prestigious schools, some are also interested in regional ties. And, while some (especially contemporary) justices have developed very formal, routinized screening processes involving groups of former clerks, others rely more heavily on so-called feeder judges who recommend their own clerks as candidates to the Supreme Court positions.

Of special interest is what Ward and Weiden document regarding gender and race. The first female law clerk, Lucille Lomen, who received her legal education from the University of Washington Law School, served in the chambers of Justice Douglas during the 1944 term. More than two decades passed before another woman was selected, but, commencing with the 1971 term, the Court has never been without a female clerk working for at least one of the justices and, in the most recent terms, just under 40% of all law clerks have been women. As Ward and Weiden note, some justices have been more inclined to hire women (e.g., Justices Breyer and O’Connor), while others have selected only a very few (e.g., Justices Kennedy and Scalia). Ward and Weiden also consider race. The first African American clerk was William T. Coleman, Jr., who hailed from Harvard Law School and was selected by Justice Frankfurter. Twenty years later, the second African American law clerk, Tyrone Brown, was appointed. Collectively, more women than African Americans (including African American women) have been selected by the justices.

In the third chapter, Ward and Weiden dissect the clerk’s role in the certiorari process. In doing so, they pay particular attention to the emergence of the dead list (the list of cases identified by the Chief Justice as not meriting discussion in conference), its transformation into the discuss list (the list of cases identified by the Chief Justice as meriting discussion in conference), and the emergence of the cert pool. The authors assert that the dead list (and, later, the discuss list) made the clerks more important in screening cases for review. Often the only analysis a justice might have had on hand would be that contained in the memo prepared by his or her clerks. The establishment of the cert pool was also consequential in this regard. Created in 1972, the cert pool means that often the only analysis a justice might see is contained in the memo prepared by a clerk, not necessarily his or her own. Ward and Weiden argue that the cert pool has diminished the incidence of candid analysis, with the non-obvious effect of emphasizing inter-circuit conflict as a justification for the granting of cert. With regard to the diminishment of candor, the authors suggest that clerks are very conscious of the fact that their cert memos are intended for an audience beyond their own justice. As a consequence, cert pool memo writers are [*772] more apt to homogenize content. Further, “clerks, lacking institutional memory and a broad outline of the Court’s trends, focus[ ] on the observable features of cases [e.g., inter-circuit conflict] that could be justified as ‘cert-worthy’ ” (p.132).

The fourth chapter is devoted to the question of whether the clerks influence the choices justices make. The authors set out to answer this question with the use of a variety of papers from the justices. Though Ward and Weiden use that material to good effect, the more intriguing evidence comes from their original survey data. The authors are appropriately cognizant of the fact that the law clerks may well have an inflated view of their own importance in and influence on decision making. This caveat makes some of their findings all the more interesting, however. Only one former clerk indicated that he was frequently able to change his justice’s mind about a particular case or issue. Three-quarters indicated they could never or only seldom do so. This suggests that, even if clerks are prone to exaggerate, they see their influence on cases and issues as negligible. The survey data also reveal that clerks believed their influence, when they had it, was at its apogee at the certiorari stage and at its nadir in decisions about case outcomes.

In Chapter 5, Ward and Weiden articulate an opinion-writing typology to guide their analysis of clerk influence in that process. With the delegation approach the clerk is assigned an opinion by the justice, who subsequently revises the draft. The retention approach, on the other hand, entails the justice writing the opinion, with the clerk providing citation, footnote, and editorial assistance. The collaboration approach strikes a balance between the first two, with both parties working in tandem. Ward and Weiden conclude that delegation is the contemporary model, and they are less than sanguine about this state of affairs: “The most damaging aspect . . . of having judicial opinions written by clerks is the potential loss of authority that these opinions carry. Indeed, it is only respect for the Court’s legitimacy that gives its judgments weight with both the public and lower court judges who are expected to follow its mandates” (p.236).

The concluding chapter highlights key developments as the role of law clerk has become institutionalized. The authors also propose a few modest changes intended to reign in any abuses attendant with increased reliance by the justices on their clerks. For example, they suggest that the Court release the pool memo when a case is denied review, thereby enhancing the transparency of internal operating procedures. They also suggest that the random assignment of cases in the cert pool – both across and within chambers – be strictly enforced to minimize the incidence of clerks picking and choosing cases for which they write the cert memo based on individual special interests. Their ultimate recommendation, however, is that both the justices and their clerks recognize and respect the boundaries of their respective authority.

Ward and Weiden have produced that rare book that is both a meticulous piece [*773] of scholarship and a good read. The authors have obviously sifted through a varied and voluminous amount of archival material, winnowing out the chaff and leaving the excellent wheat for our consumption. They marry this extensive archival research with original survey data, using both to great effect. It compares very favorably in this regard to Perry’s DECIDING TO DECIDE, which used archival and interview data so well in examining the certiorari process. While SORCERERS’ APPRENTICES has neither the sensationalism of Woodward and Armstrong’s THE BRETHREN nor the insider appeal of Lazarus’ CLOSED CHAMBERS, it is written in an accessible and lively style that makes it interesting to more than simply an academic audience (though undergraduate students would no doubt find this a text that could compete with the latest paperback thriller for their attention).

Serendipitously, the meager amount of quality scholarship focused directly on Supreme Court law clerks prompted the publication of not one but two recent titles on the subject. Todd C. Peppers’s book, COURTIERS OF THE MARBLE PALACE, was also released this year. Like Ward and Weiden, Peppers is concerned with understanding the historical evolution of the position. Also like Ward and Weiden, Peppers provides an informative law clerk portrait (e.g., educational backgrounds, demographic characteristics, and so on). Further, both books integrate survey data (Peppers also relies upon interviews) with a wealth of archival research. These books illustrate nicely the utility of a multi-method analytical approach. Notwithstanding these commonalities, the books are really quite different, and, rather than seeing them as substitutes for one another, it is more appropriate to consider them as complementary texts best read together. In particular, Peppers considers the evolution of the law clerk through the lens of principal-agent theory, with clerks serving as agents for their principals, the Supreme Court justices. His primary contention is that, although the increased reliance on law clerks for substantively important tasks, such as drafting cert and bench memos and opinions, has opened the door for greater influence, those enhanced responsibilities have come with more rules, both formal and informal, designed to constrain wayward clerks from running amuck. Peppers’ analysis of the evolution of the law clerk leads him to conclude that their influence is rare and indistinct at best. The somewhat divergent assessments of clerk influence offered in SORCERERS’ APPRENTICES and COURTIERS OF THE MARBLE PALACE are an invitation to read these books in conjunction with one another and consider carefully how they arrive at their respective conclusions.

REFERENCES:

Lazarus, Edward. 1998. CLOSED CHAMBERS: THE RISE, FALL, AND FUTURE OF THE MODERN SUPREME COURT. New York: Penguin Books.

Peppers, Todd C. 2006. COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK. Stanford: Stanford University Press. [*774]

Perry, Jr., H.W. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge: Harvard University Press.

Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon and Schuster.

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