The Supreme Court and the Rehnquist Thesis: Do Judges Hire Like-Minded Clerks?

By Robert Schlesinger, Thomas Jefferson Street blog.

Interesting piece today in the New York Times looking at a new DePaul Law Review study suggesting that that the political views of Supreme Court law clerks can influence their justices' decision. (What particularly caught my eye was that the thesis was first advanced by one William Rehnquist in 1957 in the pages of U.S. News.)

Of course it raises the chicken-and-egg question: Do conservative justices make conservative decisions because of subtle influence from their clerks, or did they hire conservative clerks in the first place because of their own ideological predilections. (And the same for liberals, of course.)

"Over and above the influence of the justices' own policy preferences," the study concludes, "their clerks' policy preferences have an independent effect on their votes." Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice's chambers makes a liberal vote more likely, the study says, while the presence of additional conservative clerks pushes justices in the opposite direction.

Other political scientists who have reviewed the study said it involves some extrapolation and leaves important questions unanswered, like the exact manner in which clerks influence their bosses. The study itself concedes the point, noting that "the mechanisms by which clerks might influence their justices' behavior are many and varied," ranging from "candid and open policy debates" to "deception in memoranda writing."

...

The justices, who typically hire four law clerks a year, certainly seem to think their clerks' politics matter. The political science professors who conducted the DePaul study, Todd C. Peppers and Christopher Zorn, demonstrate, almost in passing, that justices tend to hire clerks who share their political views.

So...chicken or egg? Weigh in in the comment section below.

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