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March 24, 2006
Editor's note: For interviews with Artemus Ward, contact him directly at (773) 580-0113. For review copies of the book, contact NIU Public Affairs at the number above.
DeKalb, Ill. — A new book by Artemus Ward, a professor of political science at Northern Illinois University, casts light on the substantial behind-the-scenes influence of law clerks for the U.S. Supreme Court.
In “Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court” (NYU Press), Ward and co-author David L. Weiden of Illinois State University reveal the changing and growing role of clerks—newly minted lawyers who find themselves drafting U.S. Supreme Court opinions.
The book is based on Supreme Court archives, the personal papers of justices and other Supreme Court figures, and interviews and written surveys with 160 anonymous former clerks from the past five decades. What follows is a Q&A with Ward.
What do you want readers of the book to walk away with? The book's main thrust is that clerks have grown in importance and influence to the point that the court could not function without them. For the first 100 years of American history, the justices did their own work. Now clerks distill the legal briefs into short memoranda for the justices to consider. Clerks also make recommendations of whether a case should be heard and, if so, how it should be decided. Clerks draft the opinions—sometimes with little direction and revision—that are issued under the names of the justices. I hope that readers will ask themselves whether these young lawyers, fresh out of law school, should have that level of responsibility.
Why did you choose “Sorcerers' Apprentices” for your title? The title comes from the 1779 poem by Johann Wolfgang von Goethe where the sorcerer's apprentice could not resist the temptation to put on the robes of the master and try his hand at sorcery. Many are familiar with Walt Disney's depiction of this in “Fantasia.” The book shows that clerks have so much responsibility that the line between master and apprentice has become increasingly blurry.
Why are the relationships between clerks and justices so secretive? The court is generally a secretive institution. Part of this stems from the fact that issues are decided months before they are officially announced. After the justices vote on a case, and therefore determine who wins and loses, clerks and justices take months to negotiate over the details; sometimes the justices even change their votes. These decisions can have a substantial effect on financial markets and political power. Therefore, unlike negotiations and bargaining in the political branches, which are reported on throughout the policy-making process, the analogous process at the Supreme Court goes unreported. Clerks and justices simply do not discuss these matters outside the court while the process is taking place. They often will continue to keep their silence after cases are handed down and their tenure at the court ends—though not always. The court gains its power and legitimacy from the impression that it is unlike the elected branches of government—specifically that it is above politics. Shining a light on the court's decision-making process, including the role of clerks, is seen by some as undermining the court's legitimacy.
What is the background of the clerks and how do they get hired? They are generally young white males who graduated at the top of their class from the nation's top seven law schools and previously clerked for one year for a prestigious judge on the U.S. Court of Appeals. In recent years there have been some small gains made by women and minorities as well as schools outside of the elite group in securing clerkships. Most of the justices conduct interviews and make the selections themselves, though a few have delegated the task to a committee of former clerks.
How much do these law clerks earn? Like the justices they work for, clerks earn far less than they would if they chose to work in private practice. Currently, Supreme Court clerks who have a law degree and one year of clerking experience on the appellate courts make $55,360. This is dramatically less than the six-figure salaries they would be making at top private law firms.
How many law clerks are there? The Chief Justice is entitled to five clerks while the other justices each can have four. Retired justices also can have one law clerk. This means that there are currently 38 clerks: five for Chief Justice John Roberts, four each for the other eight associate justices, and one for Justice Sandra Day O'Connor.
What would your readers be most surprised to learn from this book? Readers who are not intimately familiar with the court will probably be surprised to learn that the legal opinions issued by the justices are almost completely written by the clerks with little or no revision by the justices. While the justices provide the clerks with direction and read and edit their drafts, the clerks compose the words, sentences and paragraphs that make up an opinion. People may know, for example, that presidents have speechwriters. The difference with the law is that words and phrases matter: they set legal precedent for lower-court judges to follow in deciding similar cases.
Can you give me examples of justices who write their own opinions and those who do not? Currently, only Justice John Paul Stevens regularly drafts his own opinions. Justices Antonin Scalia and David Souter also regularly draft some of their opinions. The rest delegate all of the opinion writing to their clerks, which has been the standard practice for the last 50 years or so. Should we come to find out that Chief Justice Roberts or Justice Samuel Alito, the court's newest members, draft their own opinions, it will be out of the ordinary and surprising.
How has the clerks' role changed over time? A little over 100 years ago there were no clerks. The great Chief Justice John Marshall did all of his own work. When you read an opinion by Oliver Wendell Holmes, you know that he composed it. This is no longer the case. Only one or two clerks examine the legal briefs for well over 90 percent of the cases that the court is asked to hear. It is the clerk-written memo that the other clerks read to determine whether a case is worthy of consideration. If so, then the case will be brought to the attention of the justice. Clerks politic across chambers through an informal clerk network to find out what other clerks and justices are thinking about the cases, how they might vote, and whether they can be persuaded to change their minds. Justices encourage this behavior as it helps them build coalitions to win cases. Clerks check the opinion drafts that come in from other chambers. The clerks also write memoranda to their justices about what they think needs to be changed in the drafts, whether their justices should write a separate opinion, and what it should include. It is a process of clerks talking and writing to each other under the watchful eyes of the justices.
Do you conclude that clerks have too much authority? The book demonstrates that they have a great deal of authority. Whether it is too much is a judgment call and often depends on the particular justice and clerk. The court gets nearly 10,000 cases petitioned to it each year. It would be extremely difficult for the nine justices alone to handle all of those cases as well as prepare for oral arguments and write opinions in the less than 100 cases they agree to consider fully. The book shows that some justices have probably ceded too much authority to clerks. The real problem is that because clerks have become so integral to the court's functioning, both justices and clerks may be tempted to blur the distinction between what should be very different roles. The book shows that some justices and some clerks have probably crossed the line.