Posner on SCOTUS Clerks and Transparency
There hasn’t yet been any discussion on this blog — or on many others, as far as I know — about the two newly published studies of Supreme Court clerks: Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. [UPDATE: Important exception: Orin Kerr, who has a distinction preference for the Peppers volume. See also his earlier post here.] I, for one, have not yet read them. If anyone has, reactions in the comments section would be welcomed.
In this week’s New Republic, Judge Richard Posner, a Clerk to Justice Brennan in the 1960’s, reviews the two books. Posner opines that the dramatic modern increase in the number of clerks, and in the degree to which they are responsibile for cert. decisions and for drafting opinions, has probably neither helped nor harmed the Court’s output. Although Posner clearly would prefer that Justices draft their own opinions (something that reportedly only Justice Stevens now does with regularity — although some of Chief Justice Roberts’s recent opinions appear to reflect a great deal of his own pen), it’s interesting that he does not argue that there would then be an improvement in the quality of writing or reasoning. To be sure, Posner states that “there is . . . a loss when opinions are ghostwritten,” but he doesn’t try to explain in what way this might be so, except to hint that Justice-penned opinions might be shorter and less “scholarly” (the quotation marks are Posner’s own — he obviously is no fan of the sort of “scholarship” found in clerk-drafted opinions).
Two interesting things about the Posner review:
First, he addresses the question of why clerks are much more numerous and influential today than they were before the Second World War. The principal reason, in Posner’s view, appears to be that delegation is “irresistable.” (But why wasn’t that the case in earlier eras, especially where opinions were drafted by hand, without the aid of computers, Westlaw, Shepard’s, etc.?) There’s also this: “In 1947, in another change that enlarged the clerks’ role, Chief Justice Vinson decided that each justice should be assigned the same number of majority opinions to write. Until then, faster justices had been given more assignments. The slower justices, now more heavily burdened with writing assignments, began delegating opinion-drafting to their law clerks.”
Second, Posner uses his review as an opportunity to harshly criticize the Court’s modern obsession with preserving the secrecy of its proceedings:
The standard argument is that secrecy is necessary for candid communications among the justices and between the justices and their clerks. But judicial decisions, unlike business and political and military decisions, are supposed to be based, and rightly so, on reasons that can be stated publicly without embarrassment. Sorcerers’ Apprentices quotes some disreputably partisan clerks’ memos in “hot” cases, for example involving abortion. If publicity deterred clerks from writing such memos, the nation would not be the loser.
Of course clerks must not leak information about cases not yet decided; but this is the only secret-keeping that should be required of them. As for deliberations among the justices, they are by all reports stilted and brief. Were transcripts of their deliberations to be published, the only embarrassment would be that the American public would realize that the Supreme Court of the United States is at bottom merely a committee of able lawyers. A bit more of the mystique of judging would be chipped away. It would be a further step toward the disenchantment of the world that Weber foresaw with prescience and regret, but it might not be a bad thing.
I think this is a question that warrants a good deal more discussion. Is there any really compelling reason why the inner workings of the Judicial branch should be less transparent than those of the Executive branch? There appears to be a well-accepted practice of Justices and their clerks writing about internal deliberations many years after the events in question. But why shouldn’t such openness be encouraged at an even earlier stage? Some Justices are reported to have been very upset that the Blackmun papers were released while some of the Justices with whom he served were still on the Court. But those papers — and those of other Justices — have been invaluable to academics, journalists and litigants before the Court. And I, for one, am skeptical of the claims that discussions in internal memos would be unduly “chilled” by the prospect of publication.
I can, however, understand why Justices would not want their clerks to be the ones competing to write the “histories” of the Court. And if clerks do, in fact, accept their jobs only upon a promise of strict confidentiality, surely there’s something wrong with a breach of such promises. But should such promises be extracted in the first place? (Posner asserts that there was no such understanding of strict confidentiality in his day.) After all, presidential advisers seem to publish “tell-alls” mere weeks after leaving office, despite an arguably greater need for Executive branch confidentiality. If that practice is acceptable, and has not caused great harm to the quality of deliberations in the Oval Office, is there any persuasive argument that the rules should be stricter in the Supreme Court? [UPDATE: For a different perspective, see ohwilleke’s excellent post in the comments section.]
One further note on transparency. Posner endorses a specific proposal made in one of the books:
Sorcerers’ Apprentices endorses a proposal that has no chance of being adopted, though it seems as sensible as it is provocative. It is that the Supreme Court publish the pool cert. memos. There is no published statement of the reasons for denials of certiorari, and this deprives the bar of valuable information concerning the Court’s work. The reasons given by a law clerk for wanting to deny certiorari in a case will sometimes differ from the reasons that persuade six justices to deny (six because only four votes are required to grant it). But there would be fewer futile petitions–the Court grants only a little more than 1 percent of the petitions–if the bar had a better sense of the reasons that the Court’s key staffers give for turning petitions down. There might also be fewer denials.
What do folks think of this? Does the established Supreme Court bar genuinely need more information about the reasons that cert. is denied? Would we learn anything that isn’t already common knowledge (at least among those who regularly practice before the Court), and that isn’t in, e.g., Stern & Gressman?
I think that giving information on why cert was denied would have a high signal-to-noise ratio, but there might be some useful information buried in there.
I imagine that the reasons for denying cert are obvious (or should be) in a large number of the cases. It’s a bit like someone with a combined 600 score on the SATs asking for a personal letter from Harvard explaining exactly why he got rejected.
On the other hand, there’s probably some subset of the cases where the decision was close. In those cases, it might be useful to the Supreme Court bar to know either what the decision turned on or just which cases happened to be close. Which ones did the Justices consider to be close calls? Which cases were denied cert but drew at least one or two votes in favor of granting cert? Which ones were debated among the Justices before being ultimately denied?
Maybe an easy step in this direction would be to publish the number of votes each case got in favor of granting cert (both for the cases for which cert was granted and for which cert was denied). That way, the Supreme Court bar could gauge the court’s interest on some issues and write cert petitions accordingly.
To give an example, the patent bar has been trying to get the Supreme Court to examine the issue of the Federal Circuit’s level of deference to district courts in its appellate review of claim construction since 1998, when the CAFC decided the Cybor case. Just this term alone, at least three cert petitions raised the issue, but all were denied (available at 2006 WL 234884, 2005 WL 3038548, 2005 WL 2012353). While the patent bar has been encouraged by the Supreme Court’s sudden interest in patent law this year (Independent Ink, eBay, etc.), it might be useful to know whether the cert petitions on the Cybor issue were considered interesting, or were considered no-brainer cases for denial. And, if they were considered easy denieals whether that was because the issue is un-cert-worthy or whether it was just that the particular cases didn’t sufficiently present it.
Comment by Subzero91 — May 30, 2006 @ 10:48 am
I suspect that, in 90% of the cases that are denied cert., the reasons are fairly obvious. But then, there are the 10% of cases that present a genuinely meritorious issue, but are denied nonetheless. I have to think it would be somewhat helpful to the bar to have more guidance than a mere one-sentence order granting or denying review.
The question is, how should this be done? I don’t think that publishing the cert. pool memos is the way to go. After all, a memo is nothing more than a clerk’s proposal, which the Justices do not necessarily adopt. (I realize that they DO adopt the pool recommendation in a high percentage of cases.) Justices probably have reasons for their grant/deny votes that aren’t fairly reflected in the pool memos.
On the other hand, I can’t see any harm if the Court would announce the cert. vote in all cases. The decision to deny review is an official act, and it would be sensible for the Justices to put their names behind it. You still wouldn’t know the reasons for denial, but at least you would know if your petition had attracted any votes. That might be useful information the next time you are writing a cert. petition in a similar case.
Comment by Marc Shepherd — May 30, 2006 @ 11:12 am
The notion that the judiciary is currently not transparent compared to the other branches of government is certainly wrong.
Every ultimate judicial decision (with the exception of denials of certiorari. and of denials of hearings en banc) is justified in writing with the votes of the judges involved disclosed. Generally speaking, the full text of those decisions is available on the internet within hours of the decision being reached. Unpublished decisions, while not institutionally available, are also generally not published under seal — I can send a copy to a newspaper which is free to print it if it wishes. Frequently, in both Colorado, where I practice, and the U.S. Supreme Court, oral argument transcripts are available almost instantly, and even when they are not, the public is invited to attend and report.
The judiciary has virtually no formal lobbying secret or otherwise, due to the ban on ex parte communications, except before judges are appointed. Yes, there are very vague politically slanted seminars offered by private groups, but there is no haggling over individual cases. In the federal judiciary, there is not even fund raising for a campaign, let alone any significant amount of receipt of personal benefit from litigants, some very high profile, but exceedigly rare exceptions like the Vice Presidential hunting trip with Scalia and instances of judges voting in cases where they have a signficant fianncial interest excepted. Even in those cases, more often than not, the appearance of impropriety is more common than the reality.
This is not the case in Congress, where conference committees often add provisions to bills in secret without attribution, where behind the secret haggling over bills and language with interested parties is common place, and where logrolling and other forms of secret deals between legislators is the norm.
This is even less true of the executive branch. Consultations on policy matters with interested parties, such as those on the administration energy policy, are not disclosed. Policies are frequently unwritten, and even when written, are not always disclosed to the public. Decisions and actions are often communicated to the public long after the take effect. The number of official justifications for secrecy are legion - it doesn’t take great skill to turn a policy decision in a personnel or legal matter.
Denial of certiorari is certainly the biggest decision that isn’t routinely disclosed by the judicial branch. And, it is hard to deny that disclosure of pool memos would be explosive. Why? Because unlike denial of rehearing en banc, there is no strong presumption that cert is denied because the court decision in question was correct.
It is well known black letter law that cert is often denied due to the press of business and need to focus on cases of broader importance, even when the lower court decision was wrong.
But, it is one thing to read that in a treatise, and quite another to see a pool cert memo that says that the lower court was wrong but that the case is never the less not cert worthy. Releasing that information creates a large pool of legitimately aggrieved litigants and would also, of course, undermine confidence in the Circuit courts and state supreme courts.
This wouldn’t necessarily be horrible. A little pressure on the U.S Supreme Court to keep its case load higher in the interest of more accurate appellate decision making might be a good thing. But, it would probably also result in less honest cert pool memos as clerks would be pressured to say that the lower court got it right, rather than that the case was merely no cert worthy.
Comment by ohwilleke — May 30, 2006 @ 11:32 am
Perhaps another response is “do you really want to know how sausage is made?”
Comment by Subzero91 — May 30, 2006 @ 11:45 am
I think posner underestimates the importance of the judicial mystique. Ultimately it is nothing but the country’s respect for the supreme court combined with tradition which gives the court it’s power. As we saw during the Jackson presidency the power of the supreme court can dissolve without sufficent support from the people.
Ultimately the fiction that the supreme court reaches its deciscions based on sound legal reasons is absolutely essential to the operation of the court. As someone pointed out above with the cert buisness it is one thing to have this fiction disputed by third parties or the news and quite another for people to see official transcripts revealing that the supreme court is just a bunch of able lawyers making deciscions.
Finally extra openness poses particular problems with precedent. One of the supreme court’s greatest tools is the ability to avoid addressing certain issues and to dodge questions until they are sufficently ripe. Even if these internal deliberations and cert denials aren’t supposed to have precedential value everyone knows that the law will ultimately be what the supreme court says it is and it is hard to see how rejections of cert because the court agrees with the deciscion won’t be treated much like precedent.
Comment by logicnazi — May 30, 2006 @ 12:44 pm
Ohwilleke makes a fascinating point:
“This wouldn’t necessarily be horrible. A little pressure on the U.S Supreme Court to keep its case load higher in the interest of more accurate appellate decision making might be a good thing. But, it would probably also result in less honest cert pool memos as clerks would be pressured to say that the lower court got it right, rather than that the case was merely no cert worthy.”
But the SCOTUS is _not_ an error-correcting mechanism. It is not a system providing fair and just outcomes we are engaged in, but a system that produces adequate resolution of certain conflicts. These are circuit conflicts, not personal conflicts.
If it takes merely secrecy, obscurity and opacity rather than transparency, a diminished caseload, and unknowingly aggrieved litigants to achieve this marvel of injustice, by all means, let’s not discuss changing it.
On the other hand, if we want to infuriate the public, cast a harsh light on those few judges whose work is unacceptably poor, and encourage reform, why _not_ point up the fact that the Supreme Court is merely final, not infallible, let alone omniscient and omnipresent?
Comment by Eh Nonymous — May 30, 2006 @ 3:22 pm
There seems to be some disagreement in these comments as to why the SC grants cert. in the first place. I, for one, have never seen the SC as the “Court Police” that is out investigating decisions to see if some lower court got it right or wrong. So I don’t really buy the argument that if cert. was denied because the lower court got it wrong but the case was not worthy that would create a class of “legitimately aggrieved litigants”. It seems to me that it would simply mean these litigants were uneducated and their lawyers had not gone about managing their client’s expectations properly.
This is part of why I find the comment about the court’s “mystique” rather funny. I wasn’t aware that the court had such mystique, expect perhaps in the minds of the judges themeslves. I certainly don’t see this mystique being bought into by the average guy on the street. Most people who are not lawyers that I know would be much suprised to find out that the justices were even “able” lawyers since the comments I hear about the justices can, in polite company, only be represented by symbols.
As far as the sasuage comment, my reply is: that should be the person’s choice. Nobody has to read the written published opinions if they don’t want to; most who are not lawyers people don’t. But I think people should be given the freedom to make that choice.
Finally, it is true that in general the justice system is less secert than the other branches. But this does not pardon the behavior. It seems to me the justice system has the opportunity to show what open government is all about and stop wringing its hands fearfully.
Comment by Daniel — May 30, 2006 @ 3:35 pm
I meant the “sausage” comment as something of a joke. I meant to suggest only that, if we had more information about how/why cert is granted or denied in different cases, there might be a tiny percentage of cases in which the decision to grant or deny might look a little sausage-like.
I don’t mean to imply that ignorance of how the Supreme Court works should provide any sort of bliss. As with e-mail, sometimes it’s difficult to convey tone in print.
This reminds me a bit of the “cameras in the courtroom” argument, but I’m not sure which proposition has more merit to it.
Comment by Subzero91 — May 31, 2006 @ 1:05 pm
Of course we long have had parallel constructs, but I would like to see a genuine historian in residence in each of the three branches.
While appreciative of the occasional congressional request for discovery of deliberative work product from the executive, occasionally I have felt worry about full divulgation; and, the executive has stood firm in many, sometimes not always justifiable, such instances refusing to release documents, or, even, to send a representive who was part of the process to congress to testify.
In the judiciary an interesting experiment might be the ombudsperson in residence concept, chronicling such processes for a deep historymaking for publication; there could be gradations of release, as well, but assuring specifics at a work product protected level of granularity would be kept out of the history.
I disagree that the judiciary is the most open branch because its opinions are for publication. And, I suspect the commenter is right that the camera controversy is precisely the kind of supplementary information that would offer a door into some of the inner workings of the Supreme Court, and even to other courts: imagine if part of the Supreme Court’s requisite cert process were a requirement that video of argument in the lower court needed to accompany petition for cert at SCOTUS. Now, single angle proscenium view is not an entire depiction of a court’s proceeding, either. But a blended additional level of coverage, combining video and a historian’s notes could add to the perspectives of prospective litigants.
We could discuss how to document congress’ work by history and video, as well; but that is the topic for a different website. Sausage, indeed. Though some extraordinarily resourceful and well documented argument is presented both in committee and floor discussion in both chambers of congress.
Yet I like the concept of the historian. Interpretive but reviewing a lot of the processes that are beneath the surface; though I am not sure what A3G is doing in this regard at present. Probably a lot.
Comment by JohnL — May 31, 2006 @ 2:03 pm
“There seems to be some disagreement in these comments as to why the SC grants cert. in the first place. I, for one, have never seen the SC as the “Court Police” that is out investigating decisions to see if some lower court got it right or wrong. So I don’t really buy the argument that if cert. was denied because the lower court got it wrong but the case was not worthy that would create a class of “legitimately aggrieved litigants”. It seems to me that it would simply mean these litigants were uneducated and their lawyers had not gone about managing their client’s expectations properly.”
In the tradition of the recent discussion of pragmatism within SCOTUS judging, I’m convinced that the sheer fact that these “legitimately aggrieved litigants” would exist as a result of published cert. applications is sufficient reason to maintain the status quo. Let’s assume the above poster is absolutely correct, that the unfortunate litigants who lose at the circuit level and feel aggrieved by the simultaneous acknowledgment of error and refusal of intervention from SCOTUS do so out of ignorance of the process and/or misleading expectations from their lawyers. So what? That sort of grief, however misguided, would lead to all kinds of sticky constitutional challenges of the Court’s authority, as well as an overall diminution of the Court’s prestige. Fortunately or unfortunatley, while SCOTUSbloggers decidedly understand that the Supreme Court is not the guardian of last resort for every civil or criminal conflict, the vast majority of Americans — from indigent criminals to indignant CEOs — don’t understand it that way. They take the Court at its word — “Equal Justice under Law” — and forget that that word is only half the truth — “But Only if your Case Represents Urgent Constitutional Measures in Need of Clarification.” Thus, making the cert. memos public would only make these litigants and millions of others who discover this truth needlessly angry, even if they gain an important civics lesson in the process.
Comment by Peter CB — May 31, 2006 @ 2:57 pm