The following post is a summary taken from Judicial Ghostwriting: Authorship on the Supreme Court, an article written by University of Toronto Professors Jeffrey Rosenthal and Albert Yoon published in the Cornell Law Review

Imagine a job where each year one is required to evaluate over seven thousand files, closely evaluate approximately sixty to eighty cases, and write seven to ten lengthy published documents, all of which will become established law and be scrutinized by countless judges, lawyers, academics, and law students. Add one additional requirement: do this job well past retirement age into your seventies and eighties. Incredible as it sounds, the above describes the job of a Supreme Court Justice.

In contrast to the other branches of the federal government, the Court is a small and closed environment. It consists of only nine Justices, who are collectively responsible for deciding which cases to hear and ultimately deciding those cases in the form of written opinions. Unlike the President or Congress, the Court operates with lean staffing. The Justices are each responsible for their own writing; their only assistance comes from their law clerks, for whom each Justice is currently allowed four.  Within each Justice’s chambers, law clerks assist in evaluating certiorari (cert) petitions, preparing the Justices for oral argument, and ultimately producing written opinions. The law clerks are recent law graduates, typically among the top of their classes from a handful of elite law schools.  Given the demands of the job, it is understandable that Justices seek to ease their work burdens.

They have already taken some steps.  For example, in 1972 the Court created a “cert. pool.”  Whereas previously each Justice evaluated the entire docket of cases on their own, participating Justices in the cert pool now review petitions collectively, meaning that they share work across chambers. This division of labor dramatically reduces the number of petitions each chamber has to process. Moreover, in the cert. process, it is widely accepted that the law clerks now are largely responsible for providing the initial assessment of the cases.

But anecdotes abound that Justices have also increasingly delegated the responsibility of writing opinions to their clerks. One former clerk of Justice John Paul Stevens estimated that clerks generate “well over half” of the text in published opinions.  A 2006 historical account of Supreme Court clerks stated, “one can safely conclude that no other set of sitting Supreme Court Justices have delegated as much responsibility to their law clerks as those on the Rehnquist Court.”

The purported degree to which Justices rely on clerks varies considerably. Justice Oliver Wendell Holmes wrote his opinions in longhand, relegating his clerks to primarily nonlegal tasks akin to those of an administrative assistant.  Justice William Douglas maintained he wrote his own opinions.  Justice Stevens is reputed to draft his own opinions, as is Justice Antonin Scalia.  Other Justices, such as Justice Thurgood Marshall, were known to rely more on their clerks. He was not alone; Chief Justice William Rehnquist confirmed that his clerks did “the first draft of almost all cases,” and in some instances the published decision was “relatively unchanged” from the draft. Justice Harry Blackmun, in the words of one historian, “ceded to his law clerks much greater control over his official work than did any of the other 15 Justices from the last half-century whose papers are publicly available.”

Should we care if Justices delegate the opinion-writing process to their clerks? The answer may depend on the degree to which it occurs. The import of an opinion, particularly from the Supreme Court, stems less from the identity of the prevailing party than from the reasoning that accompanies the decision.  Even those who defended delegation of work to law clerks, such as Chief Justice Rehnquist, cautioned that each “Justice must retain for himself control not merely of the outcome of the case, but of the explanation of the outcome.”  Delegation, if taken too far, can threaten the integrity of the Court.

Judicial authorship raises important questions about the relative roles of Justices and their clerks. The extent to which this principal–agent relationship advances the Justice’s interests depends both on the clerk’s competence and preferences. Clerks, while typically excellent law students from elite law schools, are also usually recent graduates. This bimodal age composition on the Court – well-seasoned Justices and inexperienced law clerks – lacks a middle cohort with work experience in the government or the private sector. Justice Ruth Bader Ginsburg noted that while clerks “save us hours upon hours of labor[,] . . . most of them are also young and in need of the seasoning that experiences in life and in law practice afford.”   This staffing structure stands in stark contrast to those of the executive and legislative branches, which are both replete with experienced staff.

The ideological preferences of the Justice and her clerks may also diverge. While liberal and conservative Justices generally hire likeminded clerks, the clerkship process, in which applicants apply to all nine Justices and are expected to accept the first offer, may bring clerks of different ideologies within the same chambers.

Thus, even when the Justice dictates the broad direction of an opinion, such as the prevailing party and the general reasoning, the clerk may still exercise considerable influence.  Any meaningful discussion of judicial delegation, however, first requires a deeper understanding of judicial authorship. Questions of authorship itself are nothing new, addressing works as old as those of William Shakespeare.  Much of this earlier work is based on close textual, but ultimately subjective, impressions of his writing. In the last fifty years, scholars have turned to statistical analysis. Perhaps most famously, Frederick Mosteller and David L. Wallace, in their seminal 1964 study of the unsigned Federalist Papers, concluded that James Madison, not Alexander Hamilton, was the likely author.

Recent scholarship has examined questions of authorship in judicial opinions. A study comparing the first-draft opinions of Justice Lewis Powell and Justice Marshall found that Justice Marshall’s clerks’ writing styles were more identifiable than those of Justice Powell’s clerks.  In a study of federal appellate judges, legal scholars using judges’ citations to their own earlier opinions as a measure of their own writing found a modest relationship between the two.  While these studies advance our understanding of the judiciary, neither offer a convincing approach to evaluating judicial authorship. Comparing initial drafts may reflect more the collaboration across clerks than the Justices’ reliance on them, while self-citations are a weak proxy for judges writing their own opinions if their own clerks are also more inclined to cite their judges’ opinions.

Our approach differs from these earlier attempts because we explore judicial authorship based on a comprehensive evaluation of the jurists’ writing style.  The central intuition here is that the more participants in the opinion-writing process, the more heterogeneous the writing style of the Justice’s opinions. Justices who write their own opinions would presumptively possess less variable writing styles than Justices who relied heavily on their law clerks.

The Court’s institutional design also provides a compelling identification strategy for our hypothesis. Supreme Court clerkships are typically for a single term, running from October through August. Justices who rely more on their clerks to write opinions would likely have a more variable writing style both within and across years than their less reliant colleagues. In addition, historical accounts of the Court suggest that the responsibilities of clerks have grown over time: from stenographer at their inception in the late nineteenth century to legal assistant in the 1920s to law firm associate beginning in the 1950s.  If true, we should expect increasingly variable writing styles over time.

In our Article, we analyze the text of majority opinions of all Supreme Court Justices. Using a parsimonious model based on the Justices’ use of common function words (such as “the,” “also,” and “her”), we construct a variability measure for writing style. In most instances, Justices have variability scores that are distinguishable from one another. Moreover, even Justices with comparable or identical variability scores exhibit distinct writing styles based on their different use of function words. Our analysis then allows us to accurately predict authorship in pairwise comparisons of Justices.

More importantly, our model also allows us to evaluate how Justices vary in their writing over their tenure on the Court and in comparison with other Justices. We find that current and recent Justices report significantly higher variability scores than their predecessors, supporting the anecdotal evidence that Justices on average are relying more on their clerks in the opinion-writing process. Moreover, some Justices – most notably Justice Sandra Day O’Connor and Justice Anthony Kennedy – produce variability scores that are not only higher but also vary considerably from year to year, suggesting an even greater reliance on clerks. We test the validity of our model by analyzing the opinions of two judges known to write their own opinions, Richard A. Posner and Frank Easterbrook.  The variability of Judge Posner’s and Judge Easterbrook’s writing were markedly lower and more consistent than any current or recent Justices on the Court.

Posted in Academic Round-up

Recommended Citation: Aaron Tang, Legal scholarship highlight: Judicial ghostwriting and the Court, SCOTUSblog (Nov. 4, 2011, 11:07 AM), http://www.scotusblog.com/2011/11/legal-scholarship-highlight-judicial-ghostwriting-and-the-court/