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The Supreme Court has more clerks and less work than 50 years ago

Did one of those clerks leak the draft abortion opinion?

- May 15, 2022

Who leaked the draft Supreme Court opinion that could overturn Roe v. Wade? Some speculate the leaker was a law clerk, one of the 36 young lawyers chosen by the justices to work alongside them in complete confidentiality. Perhaps the leaker clerks for a liberal justice and wanted to warn Democrats about the impending opinion. Or maybe a conservative justice’s clerk was worried someone might defect, leading to a less sweeping outcome.

If a clerk was the leaker, it might not be surprising. Since the 1990s, justices have increasingly selected clerks for ideology, not just skill and training. This ideological linkage grows stronger against the backdrop of a court that has a lot of control over which cases it focuses its attention on.

Here’s what political scientists knows about clerks, their potential to influence their justices and calls for reform.

Leaks don’t hurt trust in the Supreme Court. Unpopular decisions do.

Why do justices have clerks?

As the 20th century progressed, Congress has steadily authorized more clerks to help the justices handle the demands of the job. When Lewis Powell joined the court in 1972, he lobbied Chief Justice Warren E. Burger to “think of including in the budget a request for funds for a fourth law clerk for me and for any other Justice who may desire one. … There is simply not enough time for me to do this on my own.”

His lobbying paid off. Ever since, each justice can hire four clerks for routine tasks including filtering requests to hear cases, conducting research and drafting opinions.

While the number of clerks remains the same since the 1970s, the court’s operation has changed. In 1988, the justices successfully lobbied Congress to gain more power to choose which cases to hear and which to ignore. One study finds that after this change in policy, the justices decided 54 fewer cases each year, on average.

Today, the court issues written opinions for less than half of the number of cases it decided 50 years ago. Indeed, in the 2019-2020 term, the court issued written opinions in the fewest cases of any term in more than a century: 53, compared with 41 during the Civil War.

With a total of 36 clerks, that means the ratio of signed opinions to clerks hovers around 2 to 1 (there were 69 signed opinions in 2018-2019, the last pre-pandemic term). In 1975, after Powell and the other justices were authorized to hire four clerks, that ratio was about 4 to 1 (160 signed opinions).

A second change is that the court now receives thousands of additional petitions to hear cases — more than 7000 in 2018, compared with less than 5000 in 1975. Many of these ask the justices to issue a writ of certiorari and formally agree to hear the case. In 1972, Powell originally organized a “cert pool,” in which participating justices pool their clerks and assign a single clerk to process each petition, summarizing it and recommending whether to grant the request. Interestingly, two justices don’t participate in the pool. Their clerks process each petition separately to preserve independence from the pool’s recommendation.

The Supreme Court might overturn Roe. It took conservatives decades of scorched-earth politics to get here.

Do clerks matter?

If the leaker was a clerk, their actions place them squarely outside the role the court intends them to play. According to Todd Peppers, an expert on clerks, a clerk serves two principals: their justice and the court. The dynamic is laid out formally in an internal document called the “Code of Conduct for Law Clerks of the Supreme Court of the United States.” Each clerk is expected to observe complete confidentiality and loyalty to both the court as a whole and to the clerk’s individual justice. A clerk who leaked an opinion, even if their justice condoned the leak, would be violating their duty to the court, at a minimum.

Leaking aside, scholars have tried to understand to what extent clerks have influence. Influence cannot be directly observed, but scholars have data on clerk demographics and measures of ideology using survey responses, candidate contributions or previous clerkships. These data establish measures of the clerks’ opinions on policy. One strategy for detecting influence is to analyze whether clerks’ policy leanings help explain a justice’s decision after accounting for other factors, including the justices’ own policy views. Researchers have uncovered evidence of clerks’ “fingerprints” throughout the justices’ decision-making process, including on choice of cases, votes on the merits and opinion content.

The clerks’ influence is not as large as factors like the justices’ own policy views. But however modest, some consider this influence inappropriate because clerks are not subject to Senate confirmation and have no formal authority under the Constitution. But others note that clerks’ youth and excellent training, combined with the hiring practices of some justices who seek racial and gender diversity, means they can inject fresh, diverse perspectives into the court.

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Politicization of law clerks

With some exceptions, justices typically try to hire clerks whose ideology matches their own. That appears to have accelerated during the 1990s, evidence suggests, thanks to the growing societal importance of how law and politics overlap.

The centrality of clerk ideology continues to grow. A few years ago, the New York Times reported that the Heritage Foundation, a conservative think tank, ran a secretive “training academy” for young lawyers before they clerked for federal judges. In return for training by the academy’s elite faculty of sitting federal appellate judges and law professors, the future law clerks had to vow to keep what they had learned a secret and use their training to further the Heritage Foundation’s ideological goals.

This focus on ideology can create problems. The more ideologically in-sync a justice’s clerks are, the more vulnerable the justice is to making mistakes. Antonin Scalia had a practice of hiring a “counter-clerk” who differed from him ideologically, because he said they “will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion.”

Calls for reform

If the leaker was indeed a clerk, some observers — including some former clerks — say the Supreme Court may change clerks’ role. The typically trusted confidants may be granted less access to material the court needs to keep secret.

But whomever the leaker might be, reasonable people might wonder whether the court still needs 36 clerks. Clerks are intended to help ease the justices’ workload, but the court now issues fewer majority opinions than at any time since the Civil War. Just as Congress has expanded the number of clerks, it could reduce the number to reflect the changing circumstances. Such a change could lead to a smaller number of clerks to be focused more intently on their prescribed role.

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Christopher Kromphardt is education support services manager in the Public Policy Center at the University of Iowa.