Who Writes Decisions of the Supreme Court?

This story originally appeared in the December 13, 1957, issue of U.S. News & World Report.

Each year some 18 young men who recently graduated from law school serve as clerks to the Justices of the Supreme Court of the United States. Some of the mystery and rumor which shroud their work so far as the general public is concerned must necessarily remain. The clerk is primarily a trusted subordinate. Not only information as to how or why a particular decision came to be made—which by Court tradition is confidential—but much else by way of conversations and expressions of opinion on the part of the Justice ought not to be revealed on the initiative of the subordinate.

Portrait of William H. Rehnquist

In addition, each clerk is in a position to offer only a worm's-eye view of the Justice-clerk relation. He will know well the system used by the Justice for whom he works, but his knowledge about the use to which other Justices put their clerks will necessarily be sketchy. I commit my limited knowledge of the nonconfidentialaspects of the system to public print because recent controversy about the Court's decisions may make it of general interest.

During my tenure as law clerk for Justice Robert H. Jackson, from February, 1952, until June, 1953, he and six of the other Justices had two law clerks apiece. Chief Justice Vinson had three clerks and Justice Douglas one. Then, as now, there were two branches of the Court's business: first, choosing what cases it would decide, and, second, deciding them.

Each year more than a thousand requests are made to the Supreme Court to decide a case that has been decided by a lower State or federal court. By law the Court is free to grant or deny most of them as it sees fit. These requests for hearing are usually called "petitions for certiorari," and custom has established the rule that when four of the nine Justices vote to "grant" the petition, that is, vote to decide the case, the Court will hear argument on it and decide it. The Court usually grants less than 10 per cent of these petitions for certiorari, so its work of choosing what cases it will decide is neither a small nor an unimportant part of its job.

Each of these petitions for certiorari generally comprises a "brief" urging the Court to hear the case, another "brief" urging the Court not to hear the case, and an often lengthy record of all the proceedings in the lower courts. It is not surprising, therefore, that during my time the majority of Justices delegated substantial responsibilities to their clerks in the digesting of these petitions.

In Justice Jackson's office, the petitions for certiorari which were scheduled to be discussed at the next conference of the Justices were split between the two clerks. Each clerk would then prepare memoranda on the petitions assigned to him. These would include the facts of the case, the law as declared by the lower courts, and a brief summary of previous cases involving the same point. They concluded with a recommendation by the clerk either that the petition be granted or that it be denied. Aided by this data, the Justice himself would then study the petitions in order to determine his vote. I believe that a procedure substantially similar to that just outlined was followed in the offices of a majority of the other Justices during the time that I was a clerk.

The role of the clerks in the preparation of written opinions deciding cases in which the Court had already agreed to decide varied far more from Justice to Justice than did their role in the handling of petitions for certiorari. Likewise, where the end product was to be a written opinion carrying the name of a Justice as its author, rather than merely an oral vote in conference, individual clerks were rightly far more closemouthed in talking about procedure in their particular offices. For these reasons, I can fairly describe only the system used by Justice Jackson in this branch of the Court's work.

Robert H. Jackson had one of the finest literary gifts in the history of the Supreme Court. Even a casual acquaintance with his opinions during the 13 years he served on the Court indicates that he neither needed nor used ghost writers. The great majority of opinions which he wrote were drafted originally by him and submitted to his clerks for their criticism and suggestions. Frequently such a draft would be batted back and forth between the Justice and the particular clerk working on it several times. The contributions of the clerk by way of research, organization and, to a lesser extent, method of approach, was often substantial. But the end product was unquestionably the Justice's own, both in form and in substance.