Thursday, December 31, 2020

A Modest Proposal for Supreme Court Reform

Mark Tushnet

The Supreme Court's argument calendars for January and February (quite light) provoke me to the following:


          The prospect of large-scale changes in the Supreme Court, never great, disappeared on November 3. Here’s a suggestion for a more modest reform that will get the Court to contribute its fair share to the coming push to tighten the belts of our institutions.


Cut the number of law clerks justices can hire from four to two (with one extra for the Chief Justice). In 1968-69 each justice had two clerks and the Court decided 122 cases. In 1972-73, when I clerked for Justice Thurgood Marshall, each had three clerks and the Court decided 164 cases. In 2018-19 each justice had four clerks and the Court decided 72 cases. That’s a drop from 55-60 cases per law clerk to 18 per law clerk. Maybe we were just a lot smarter than they are (but probably not twice as smart). Or maybe the opinions they’re turning out are twice as good as ours were.


Frankly, I doubt it. More likely, they’re just less productive. They spend more time going down rabbit holes doing unnecessary research. Or, maybe worse, drafting opinions explaining why their justice joins in Parts I, II (A), and III of  majority opinion but dissents from Parts II (B) and (C). (In one case Justice Kagan asked her law clerks to look up how every one of the fifty states used the words “tangible objects” in their statute books, just so she could include a footnote – well-written, to be sure – telling us the answer. Our law would have been none the poorer without the footnote.) 

If the Supreme Court were a private business and stockholders discovered that productivity had dropped in half while the staff remained the same size, they’d make management do something about it. And what management would do is trim the staff. Why should the Court be immune from efforts to cut the fat off an operation that’s gotten bloated as the justices themselves have chosen to cut down on the number of decisions they make? 

Any discussion of justices and their law clerks has to include the standard quotation from Justice Louis Brandeis: “The reason why the public thinks so much of the justices is that they are almost the only people in Washington who do their own work.” That hasn’t been true for decades, but cutting the number of law clerks would make it a bit more true.

The justices still do the most important thing: cast votes about who wins and loses. Sometimes they divvy up the work of drafting opinions, taking some for themselves, having law clerks draft others. The clerks try their best to capture what their justice thinks and to reproduce the justice’s writing style. Justices always “edit” the clerks’ drafts, though if the clerks have done their job well the editing should be light. 

How much of their own work the justices do depends in part on how long they’ve been on the Court. In a justice’s first years she or he does a lot of the drafting personally. As the justices get older and more experienced in managing their law clerks, drafting responsibility shifts toward the law clerks.For understandable reasons, no current or recent law clerks candidly describe how much drafting they actually did – and some actively misrepresent the facts. But you can see what practices were in the relatively recent past in the papers of several justices available at the Library of Congress and elsewhere. And “insider” scuttlebutt confirms that things haven’t changed on these matters. Because I was a law clerk (nearly fifty years ago) I personally don’t see anything wrong with the way the justices choose to run their offices – which is to say, how much input they have on the opinions that emerge from their chambers with the heading, “Justice X, concurring.” 

Still, decreasing the number of law clerks  will increase the amount of “their own work” that the justices do. And if Justice Brandeis was right, that will benefit the Court even if it burdens some of the justices.


 And, for those who thought that more substantial changes were desirable, consider the fact that as the burdens increase the job becomes less attractive, particularly as a justice grows older and tries to shift more work onto the law clerks’ shoulders. 

Cutting the number of law clerks in half might increase respect for the Court and increase turnover on the bench – not quite term limits, but getting closer to them.

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