Posner on SCOTUS Clerks and Transparency
on May 30, 2006 at 9:55 am
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?
