August 02, 2005

Michael Barone: Reduce the Number of Law Clerks at the Supreme Court

An interesting column from Michael Barone:


The proliferation of law clerks — justices got two in 1948, three in 1970, four in 1978 — has produced a proliferation of separate concurring and dissenting opinions. In the two-clerk era, there was an annual average of 107 opinions of the court, 78 dissents and 33 concurrences. In the three-clerk era, there were 146 opinions of the court, 134 dissents and 73 concurrences. In the four-clerk era, during which the Rehnquist Court started hearing fewer cases, there were 118 opinions of the court, 98 dissents and 65 concurrences. In other words, there were 104 separate opinions for every 100 opinions of the court when justices had two clerks, 142 when they had three clerks and 138 when they had four. And the opinions got more complex. In the 1920s, Chief Justice Taft encouraged justices to agree on unanimous opinions, and when justices disagreed there was usually just one crisp and clear dissent. Today on many, many cases, we get hundreds of pages of opinions, and justices stating agreement with parts I, II(B) and IV of the majority opinion and disagreement with parts II(A), II(C) and III. You can't read them without making a flow chart showing each justice's position first.

Once upon a time, Supreme Court opinions were widely read and understood by interested citizens. Now, they're mostly read by law professors and by practicing lawyers who get paid $500 an hour or more to do so — and by law professors and law firm partners who are making hiring decisions, and want to know which opinions their applicants have written. All this has resulted in opinions that complicate rather than clarify the law and encourage litigation rather than set clear rules which everyone can follow.

I am not the only one to conclude that the proliferation of law clerks has resulted in a proliferation of opinions. This was one conclusion of political scientist Bradley Best in his 1995 book "Law Clerks, Support Personnel and the Decline of Consensual Norms on the United States Supreme Court, 1935-1995." Best concludes that the increase in clerks has led to an increasing independence among the justices — or, in everyday language, justices now schmooze more with their clerks than with each other.

This is so true... Any one that has ever tried to read some of the opinions coming out of the Supreme Court recently can certainly attest to this.
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