More on Supreme Court Law Clerks

Bo Rutledge, a friend of mine and fellow former law clerk for Justice Thomas, has posted on SSRN a book review entitled “Clerks,” which is forthcoming in the University of Chicago Law Review, see here. Like my review essay highlighted on SCOTUSblog several weeks ago, Bo reviews “Courtiers of the Marble Palace” by Todd Peppers and “Sorcerers’ Apprentices” by Artemus Ward and David Weiden, both of which analyze Supreme Court law clerks. Bo takes a slightly different tact than I do with his piece, analyzing the strengths and weaknesses of the two books using the framework of the “new institutionalist” model advanced by political scientists. He points out a number of flaws in their research, and sets forth some thoughts on possibilities for future research.

Like I did, Bo found the two books sorely lacking in prescriptive suggestions for the Court, particularly as to their use of law clerks. Perhaps the authors are simply waiting to set forth such suggestions in future research, but their absence is particularly noteworthy. Interestingly, Bo suggests that perhaps the Court should move to a bifurcated model where some of the clerks have permanent appointments and work for the entire Court, while other clerks work only for individual Justices. Although he takes no normative position on the cert pool, Bo suggests that having permanent clerks take over the role of gatekeepers could ameliorate or even eliminate some of the perverse incentives of the pool. Indeed, his reform proposal logically follows from my finding that the cert pool is considerably more stingy than the Court as a whole with respect to the disposition of petitions for certiorari. Although I do not agree with every aspect of Bo’s book review, I think it is well worth reading, and I suggest giving some consideration to his ideas about reform of the cert pool and the clerkship institution.

UPDATE: I will post the final page proof version of my review essay next week, but one reader asked about my original post, which is available here.