Supreme Court Clerks


Craig Lerner & Nelson Lund, guest-blogging at The Volokh Conspiracy, propose a reform to the way clerks are assigned to the Supreme Court Justices. (link)

Ideally, the justices would be in complete control over what cases get heard by the court, and what exactly is decided. A tremendous amount of energy is put into their nomination and appointment, and a tremendous amount of trust is put on their shoulders.

As it is today, the justices are filtered from each other and the “real” world by their clerks. This has the deleterious effect that the Justices aren’t really in control of what comes in or goes out of the court. The clerks have a great deal of power to control what the justices see and what they write or say.

The proposed solution is to have clerks work for the court rather than individual justices. Any work they do should be available for all the justices. When it comes to writing opinions and reading legal papers, they will have to do that on their own.

I’m not one to impose my will on how the court works. If there is anyone who truly understands what the court needs to do their job better, it is the court. Any artificial constraints we put on them will, at best, only hurt their efficiency a little bit, and at worst, become an impassible roadblock.

However, it does concern me that some justices hide behind their clerks. At the very least, I would encourage the justices on the court to somehow give the American people a feeling that they are really in charge. I can only imagine what kind of damage the reputation of the court would suffer if the American people came to believe it was being run by a bunch of twenty-something, never-legally-employed college graduates.

The same goes, of course, for the House and the Senate, and the presidency.

I believe the problem largely stems from the massive size of government. Congress tries to do too much. The president is president of too much. There are too many laws, and too many ways to interpret the constitution. Each branch should be focused on keeping their jobs doable, and should rightly question any new workloads people wish to add to them.

If this means the courts take measures to limit the number of writs, then so be it. That’s up to the justices, though.

If this means we need more justices on the supreme court, or another layer of courts between them and the people, so be it.

Regardless, this is a problem they have to tackle. Until the American people are satisfied, they have not resolved that problem.


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