Who Writes Decisions of the Supreme Court?

Portrait of William H. Rehnquist

On a couple of occasions each term, Justice Jackson would ask each clerk to draft an opinion for him along lines which he suggested. If the clerk were reasonably faithful to his instructions and reasonably diligent in his work, the Justice could be quite charitable with his black pencil and paste pot. The result reached in these opinions was no less the product of Justice Jackson than those he drafted himself; in literary style, these opinions generally suffered by comparison with those which he had drafted.

The conclusions to be drawn from these observations as to the "influence" of the clerks on the work of the Court will necessarily suffer from the worm's-eye point of view referred to above; nonetheless, some tentative ones will be ventured.

The specter of the law clerk as a legal Rasputin, exerting an important influence on the cases actually decided by the Court, may be discarded at once. No published biographical materials dealing with any of the Justices suggest any such influence. I certainly learned of none during the time I spent as a clerk.

Granted that this is the sort of thing that biographers and commentators might not readily learn of, the complete absence of any known evidence of such influence is surely aided by the common-sense view of the relationship between Justice and clerk. It is unreasonable to suppose that a lawyer in middle age or older, of sufficient eminence in some walk of life to be appointed as one of nine judges of the world's most powerful court, would consciously abandon his own views as to what is right and what is wrong in the law because a stripling clerk just graduated from law school tells him to.

Finally, in this area of opinions with which the Court decides cases, a Justice to whom an opinion is assigned generally is able to take sufficient time to examine as carefully as he believes necessary the materials which are to go into the opinion; he is not forced by pressure of time to take the word of a subordinate clerk on any important point.

Passing from the question of influence on written opinions to influence on the Court's action in granting or denying certiorari, no such easy answer is possible. Because of the great number of these petitions, sheer pressure of time often prevents a Justice from personally investigating every point involved. The clerk's memorandum is usually supposed not only to digest the relevant matter in the case which the Court is being asked to consider, but to summarize research of other cases on this point. Most of the Justices will base their vote in conference as to whether a petition should be granted at least in part on legal materials digested for him by a subordinate.

Obviously, if the clerk has erred in carrying out this digestive process, or if the clerk has consciously or unconsciously slanted the result of the process in a way different from the way the Justice himself might have done, the Justice may cast his vote in conference in a way different from that which he would have done if properly informed. I do not believe it can be denied that the possibility for influence by the clerks exists in this realm of the Court's activities.

Because of the generally high level of capability among the clerks, factual error on their part may be discounted as influencing the Court's work. I would likewise rule out conscious slanting of the clerk's work as playing any significant role in the Court's work. An ideal clerk ought, in most aspects of his official capacity, to mirror as best he can the mind of the Justice for whom he works. There is room for sensibly presented difference of opinion when the lines of dispute are clearly drawn and in the open, but there is no room for the clerk's deliberate use of his position as research assistant to champion a cause to which his Justice does not subscribe. It would be an extraordinary reflection on the Justices, the clerks and the law schools if there were many deliberate, conscious departures from this ideal standard by the clerks. I knew of none, and would expect to learn of any here no more than to learn of analogous breaches of faith among honor graduates of schools of medicine, engineering or divinity.

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