More on the Influence of Law Clerks
The following is by Professor David Stras of the University of Minnesota Law School. Professor Stras will occasionally provide commentary on the Court’s business and alert readers to significant academic developments regarding the Supreme Court.
A few months ago, Todd Peppers and Christopher Zorn posted a paper on SSRN, see here, entitled “Law Clerk Influence on Supreme Court Decisionmaking.” You may recognize Professor Peppers as the author of “Courtiers of the Marble Palace,” one of the two books recent books that address the influence of Supreme Court law clerks. I will be publishing a review essay in the Texas Law Review later this spring, see here, reviewing Peppers’ book and “Sorcerer’s Apprentices” by Artemus Ward and David Weiden, and providing some empirical data on the influence of the Court’s cert pool.
Peppers and Zorn take a stab at another aspect of clerk influence—that is, whether the law clerks influence the Justices’ votes on the merits of the cases. Although there are some serious limitations to their approach, their paper represents the first attempt to systematically and empirically assess the issue. Using the responses on completed surveys by 639 former clerks, each clerk is coded as belonging to either the Republican (coded 1) or Democratic (coded 0) party at the time of their clerkships. The authors then use the valuable United States Supreme Court Judicial Data Base, which is compiled and updated by Harold Spaeth and others, to code every Supreme Court case as either reaching a liberal or conservative result. The other major variable in their model is Justice Ideology, in which the authors employ Segal-Cover scores, which assign a value between 0 and 1 for every Justice depending on their judicial ideology. For example, Justice Scalia scores a 0 because he is viewed as the most conservative Justice using those scores, while Justices Brennan and Marshall are on the other end of the ideological spectrum. To alleviate concerns about selection bias with respect to the return of surveys, they also run various statistics that permit them to predict the survey responses of nonrespondents. A logit regression model with both their combined measure of clerk partisanship, which includes both predicted and actual responses on partisanship, and Justice ideology using the Segal-Cover scores, predicts that a one-unit change in clerk partisanship (from homogenously Democratic clerks to homogeneously Republican ones) decreases the odds of a liberal vote by 40%. Three of their other logit regression models are also statistically significant and suggestive that clerks influence the merits votes of their Justices. One major weakness (among others) of their approach, of course, is that it uses the law clerks’ party affiliation as a proxy for conservativism or liberalism, which may skew the results some.
What I find most striking about the paper is a point that they do not discuss much, if at all. According to their data, the party affiliation of the law clerks as a group is tilted decidedly toward the Democratic Party. In figure 3, it shows that the predicted probability of any particular clerk having a Republican affiliation for Antonin Scalia, the most conservative Justice, is just over 50%. Meanwhile, that same statistic for the most liberal Justices is just under 20%. These statistics strike me as unsound, especially with respect to recent law clerk hiring. As Peppers himself points out in his book, Justices have been increasingly relying on “feeder judges” for their hiring, and my experience is that many of these judges examine ideology prior to the hiring of a clerk. If that is true, I wonder whether their figures are temporally dependent—that is, the probability of a conservative Justice hiring a conservative clerk today is greater than the numbers for a comparable Justice during the 1950s. I have not seen the survey, but I also wonder whether some conservative clerks self-identified as libertarians, which would explain the decidedly liberal slant to their data. In any case, I highly recommend this paper, and look forward to your comments on it.
I don’t find this very convincing, especially after reading Greenburg’s book. It makes no allowance for justices being influenced by other justices. Nor is there any null hypothesis, i.e., that the justice would have reached the same result without any law clerk.
In fact, I am less impressed than ever by the clerk influence argument. When you take young people who have made it through a competitive process to get to an intense group situation with a high-status mentor, they are going to get an inflated sense of self-importance — Real World: Marble Palace — and of course lawyers are not known for self-effacement. To get the best out of a clerk or intern or other mentee, you have to make them think their work is significant, whether it is or not.
Roger Friedman
Comment by r.friedman — February 2, 2007 @ 11:12 am
It doesn’t surprise me at all that even conservative justices would have a lot of liberal clerks.
I clerked for a Republican district judge appointed by Nixon. I was his first Republican clerk in years.
Lawyers and recently-graduated law students tend to be liberal (Bill Clinton, Al Gore, and John Kerry all commanded much more support from lawyers than did the Bushes), so lower court judges, even Republican judges, often end up with liberal clerks.
That’s less true at the Supreme Court level, since justices have so many clerks to choose from, and can pick a really conservative clerk if that is what is important to them.
But even among conservative justices, they may even up with a Democratic clerk if they don’t actively seek out a more conservative one.
There was at least one moderate-liberal who attended law school with me who later ended up clerking for Chief Justice Rehnquist.
Comment by Hans Bader — February 2, 2007 @ 11:14 am
As Professor Stras notes, the traditional liberal/conservative distinction is awfully simplistic. Take the Cunningham case (invalidating California’s determinate sentencing scheme). In that decision, who’s the liberal? Who’s the conservative?
I suspect that all but the most narrow-minded Justices genuinely seek the most intelligent and broad-minded clerks, not merely those who could be expected to puppet their own views.
Obviously, Justice Scalia is probably not likely to hire a clerk who is hostile to originalism, but there are plenty of cases where the originalist viewpoint does not necessarily point inexorably to a single outcome.
Comment by Marc Shepherd — February 2, 2007 @ 12:13 pm
That this topic is even discussed seriously bespeaks a certain arrogance and elitism among law professors and law clerks and the Ivy League ranks from which they are chosen. Stripped of its ostensible claim of objectivity, the assumption underlying this social science is that judges are rudderless drones who cannot think independently about the law and need clerks who are smarter than they are to guide them to the “right” way of thinking. So if you are a liberal law professor, you probably believe that any liberal law clerk is smarter than Justices Thomas, Scalia, Kennedy, Roberts, and Alito. On the other side of the equation, Justices such as Breyer and Ginsburg need no such nudging from their law clerks because they are already on the correct side of the law (and it is doubtful that they have any Republican/conservative clerks working for them anyway). The underlying prejudice is that conservatism is equivalent to being an intellectual dullard and liberalism is equated with being smart. This point has been put forth in many other forums over the years and in different variations but it all comes down to a liberal attitude that politicians and judges who do not agree with them are either dumb or corrupt. You also find the attitude prevalent in politics where campaign managers are treated as modern day Svenglais who manipulate public opinion on behalf of candidates who are as interchangeable as automobiles being advertised during a football game. I also doubt that Scalia really wants clerks who agree with him; it is more likely the other way around although no one would turn down such an opportunity. Scalia would probably prefer a clerk who disagrees with him; it presents just another chance to vanquish another debating opponent. But why not ask if any clerk has been influenced and had their philosophy changed by the justice for whom they clerked? Roger Freidman is correct: justices are probably more influenced by other justices than by their clerks. Or for that matter by their spouses. Who is more likely to look any justice in the eye and tell him or her: “you are 100% wrong!” a recent law graduate or a spouse?
Comment by Dennis Bedard — February 3, 2007 @ 8:04 am