Who Writes Decisions of the Supreme Court?

The late chief justice wrote in 1957 that law clerks' views could influence Supreme Court decisions.

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This leaves unconscious slanting of material by clerks as the sole remaining possible source of influence by the clerks on the Court's certiorari work. Here, unfortunately, no such clean bill of health is possible.

Any subordinate who briefs his superior is bound to have or acquire ideas of his own regarding the matters briefed. Unless each of the nine Justices is to be utterly without professional assistance, the Court, like many other institutions, is bound to be exposed to the risk of such subordinate bias. However, there are some facets peculiar to the clerks as a group which accentuate the problem of subordinate bias in their case.

Most of the clerks are recent honor graduates of law schools, and, as might be expected, are an intellectually high-spirited group. Some of them are imbued with deeply held notions about right and wrong in various fields of the law, and some in their youthful exuberance permit their notions to engender a cynical disrespect for the capabilities of anyone, including the Justices, who may disagree with them.

The bias of the clerks, in my opinion, is not a random or hit-and-miss bias. From my observations of two sets of Court clerks during the 1951 and 1952 terms, the political and legal prejudices of the clerks were by no means representative of the country as a whole nor of the Court which they served.

After conceding a wide diversity of opinion among the clerks themselves, and further conceding the difficulties and possible inaccuracies inherent in political cataloguing of people, it is nonetheless fair to say that the political cast of the clerks as a group was to the "left" of either the nation or the Court.

Some of the tenets of the "liberal" point of view which commanded the sympathy of a majority of the clerks I knew were: extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, and great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren.

There is the possibility of the bias of the clerks affecting the Court's certiorari work because of the volume factor described above. I cannot speak for any clerk other than myself in stating as a fact that unconscious bias did creep into his work. Looking back, I must admit that I was not guiltless on this score, and I greatly doubt if many of my fellow clerks were much less guiltless than I. And where such bias did have any effect, because of the political outlook of the group of clerks that I knew, its direction would be to the political "left."

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