Rehnquist 1957 Assertion That Clerks Influenced Supreme Court Borne Out by New Study
A new study published by the DePaul Law Review argues that Supreme Court justices' legal opinions can be influenced by their clerks' political views. The study cites a 1957 U.S. News article by William H. Rehnquist, then a former law clerk whose own ascension to the high court still lay 15 years in his future, in 1972 (and who would become chief justice in 1986).
In his piece, Rehnquist claimed that the political prejudices of clerks influenced what cases the court decided to hear. Then—as today—clerks briefed the justices on the cases that have reached the court. "The volume factor" of the cases justices must either grant or deny, as he described it, combined with the role clerks are assigned, gives the clerks a substantial amount of sway over the court. Rehnquist went on to describe the clerks' prejudices as "leftist," ascribing to them an "extreme solicitude for the claims of communists."
Rehnquist's arguments drew upon his own experience as a clerk for Supreme Court Justice Robert Jackson, and in so doing, broke "the code of silence" observed by former Supreme Court justices even today. The piece, it should go without saying, was controversial at the time.
Responding to the controversy, a more hesitant Rehnquist softened some of his previous claims in a second article for U.S. News. The arguments made in his original piece, he wrote, must await an "impartial study of the matter."
More than 50 years later, the DePaul Law Review study appears to have corroborated Rehnquist's claims.
Reader Comments
Too much power given to young inexperienced law clerks
This is not news to those of us who practice at the appellate level. It is the same in state courts as well.
For example, in Texas, clerks often draft court opinions. When the clerks run into tough spots, they often insert their own particular views and prejudices and the judges, often not knowing any better, may sign off on an opinion without giving much thought to the depth, or lack thereof, of legal arguments actually contained in the opinion.
For those unfamiliar with this process, another term for law clerks is -- RECENT LAW SCHOOL GRADUATES.
In our appellate study group, we have recommended to the Texas Supreme Court that recent graduate clerks be given a subordinate role in briefing, and that all major briefing components be handled by more senior briefing attorneys.
If people know how much of the law in the law books was actually written by snotty-nosed kids recently graduated from law school, they would have a serious hissy-fit.
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