Who Writes Decisions of the Supreme Court?

Portrait of William H. Rehnquist

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.

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.

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.

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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