The Court's Ghosts

Young law clerks increasingly responsible for Supreme Court opinions.

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Supreme Court justices interpret the Constitution and shape American society. They are nominated by the president and vetted, then confirmed or rejected, by the Senate. But a study described in the new book In Chambers: Stories of Supreme Court Law Clerks and Their Justices by University of Virginia Press, found that opinions issued by the justices are increasingly written by their law clerks, most of whom are still in their 20s.[Photo Gallery: Supreme Court Hears Healthcare Reform Arguments]

It wasn't always like this, says Artemus Ward, an associate professor of political science at Northern Illinois University and one of the book's co-editors. In the first 100 years of the court's existence, there were no clerks, and justices wrote their own opinions. But as clerks became standard, their responsibilities increased. They went from writing memos for the justices to drafting opinions that were then issued as Supreme Court decisions. Ward's study, conducted with another academic, surveyed law clerks and found that the justices made edits or revisions to the text only 70 percent of the time. Thirty percent of the opinions were written completely by the clerks, usually only two years out of law school.

Ward points out that ghostwriting is hardly exceptional in Washington, where presidential addresses are composed by speechwriters and legislation is drafted by Capitol Hill staffers. Still, says Ward, the law is all about words and phrases. For example, he says, there is a difference between "compelling state interest" and "important state interest." [Read the U.S. News debate: Should the Supreme Court Overturn Obama's Healthcare Law?]

The more it becomes understood that clerks are doing the drafting, the less authority the words and phrases will carry, Ward contends. The coveted clerkships do go to top students from the country's most elite law schools, but Ward says the decisions could lose sway with litigators, lower court judges, and government officials if they know clerks are primarily behind the opinions.

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