July 25, 2005
Too Many Clerks?
Posted by Will Baude

Via Mike Rappaport, I see that Michael Barone argues that we have too many Supreme Court law clerks:

Some time ago I took a look at the statistics in the annual Harvard Law Review issue on the Supreme Court, and found that each time there was an increase in the number of Supreme Court law clerks there was also a step increase in the number of separate concurring and dissenting opinions. In the 1920s, when Chief Justice Taft encouraged unanimity and when justices had one or zero law clerks, there were few dissenting opinions and very few separate concurrences.

My radical proposal, which I am sure will never be adopted, is: reduce the number of Supreme Court law clerks to one or two. My expected result, were this ever to be done: many fewer separate opinions and clearer, more straightforward opinions that intelligent citizens could easily read in full. Try reading the opinions in most important cases today, and you need to set aside several hours and start by making a flow chart of which justices agreed with which sections of the majority (or plurality) opinion and with which sections of the separate dissents or concurring opinions. Supreme Court jurisprudence has become unfollowable even for intelligent, interested citizens. Almost no one goes through this exercise except law professors, law review editors and members of the bar who are paid upward of $500 an hour for doing so.

I am dubious.

It is true that I have just been arguing with a classmate that it is quite possibly wise to provide Constitutional limitations on the number of staffers a legislature may employ (structural barriers to big government being just as important as parchment ones). That notwithstanding, I think that trying to cut back on the Court's law clerks is silly.

I will concede Barone's empirical research, which I have not done or attempted to replicate. Suppose having law clerks around makes it easier for judges to write concurrences and dissents. So what?


First off, note that Barone does not say that the number of law clerks a justice has increases the number of non-majority opinions the court issues. An opinion with a lot of concurrences and dissents is not necessarily an opinion that lacks a clear majority. (For example, United States v. Lopez with its majority opinion, two concurrences, and three dissents.) (Indeed it is simply not true that the Court's opinions in "most important cases today" require a flow chart to see who agreed with what.)

Now on to Barone's big complaint, that the Supreme Court doesn't issue any more of its good old unanimous declarations. It is unclear to me why this is a bad thing. Dissents sharpen the legal issue, show the public that the countervailing point was at least heard before being cast aside, and provide guidance to future litigants about how stable to expect the pronouncement to be and how they might go about changing the decision if they don't like it. Concurrences do similar work, especially keeping litigants from being surprised when a future panel of the court says "that is not what we meant at all, that is not it at all."

And the absence of dissenting opinions is entirely separate, as an analytical matter, from comprehensibility. Have people forgotten the many incomprehensible pronouncements of Justice McKenna?

As a sometime-devotee of John Stuart Mill, I think that within bounds, more dissent and concurrences tend to make the resultant consensus or near-consensus better rather than worse, on the whole. I distrust hiveminds, collectives, collusions, or the urge to tidy up disagreement and sweep it under the rug. But even if one joins Barone's desire to eliminate dissent by eliminating law clerks, what makes him think that the Justices will stop dissenting rather than simply spend less time researching, checking, or editing their majority opinions? Or simply hear fewer cases? The causal arrow cannot always be run in reverse.

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Comments (9)

1. Posted by Ted on July 25, 2005 @ 19:10 | Permalink

I suspect the issue is one of word processing and the Rehnquist Court's miserly approach to certiorari rather than one of clerks—though certainly the clerking issue redounds in other ways.


2. Posted by Will Baude on July 25, 2005 @ 20:10 | Permalink

Maybe. Barone alleges a "step" increase in years when new clerks are added, which would make your theory less likely to explain that. Of course, since Rehnquist hires only 3 clerks and Stevens has until recently, there is a natural experiment possible. Do other justices' dissents and concurrences increase while Rehnquist's stay the same?


3. Posted by Will Baude on July 25, 2005 @ 20:55 | Permalink

I will add that this natural experiment allows us to test other hypothetical benefits that come from fewer clerks. A classmate suggests that opinions might be shorter and have fewer footnotes, or that justice might be less able to rely on their clerks as a crutch. (We would just investigate to see if Rehnquist and Stevens had fewer footnotes or shorter comparative tenures on the bench than their more-staffed colleagues).


4. Posted by Christopher M on July 26, 2005 @ 4:05 | Permalink

Presumably one would also one to track some variable along the lines of "Supreme Court clerks' free/social time," because of the emininently plausible scenario in which that variable swings widely to make up the posited gap in law-clerk working time. Admittedly it might be small to begin with (I don't know much about it, sadly), so one would want a high-precision measurement. One wouldn't want to suggest, for example, a proxy like "number of drinks consumed per Term-month," because it's highly unclear whether that would vary as an inverse or a direct function of the clerk-caseload.


5. Posted by Shag from Brookline on July 26, 2005 @ 6:31 | Permalink

Even though the number of cert petitions increase yearly, the Rehnquist Court accepts fewer cases proportionally and in actual numbers than prior Courts. With less cases to decide, there is more time to pontificate, especially with the assistance of many clerks. Meantime, some of the rejected petitions may have involved quite important issues that remained unaddressed by the Court.

After Massachusetts established an intermediate appeals court 30 years or so ago, I noticed that Supreme Judicial Court opinions got longer and longer. With less cases to decide, perhaps the SJC Justices decided to take advantage of the opportunity to pontificate.

Don't you just love the stream of citations that most of us do not have the time to read after wading through the opinion of the Court, concurring opinions and dissenting opinions, also with their streaming citations. How much of this is attributable to the clerks?


6. Posted by Will Baude on July 26, 2005 @ 6:47 | Permalink

It is worth remembering that the S.C. is a court of law first, and an entertainment device for law students and political junkies second. "Citations" may make the thing duller reading for some (though I think they do not) but surely make it easier for actual attorneys and lower court judges to figure out What The Heck is Going On.


7. Posted by Ted on July 26, 2005 @ 6:55 | Permalink

Breyer eschews footnotes, and would even if you gave him a dozen clerks.


8. Posted by Christine on July 26, 2005 @ 13:33 | Permalink

I have to say I welcome dissents and concurrences and am glad that the justices have the manpower to be able to write them. Most Circuit court justices do not, and I believe that this artificially leads to the 80-90% unanimity most circuit panels enjoy. While that might make life easier for casereaders and casewriters, it might not make life easier for litigants or future litigants. These are important issues after all, at least for those who encounter them, and I think that the benefit outweighs the annoyances of the few.

As an aside, the number of concurrences and dissents creates an almost civil law environment where litigants cite to treatises, not cases. Here, the concurrences and dissents are commentary like treatises, with some persuasive value. Although in the U.S. (most) treatises are not treated as binding precedent, these "extra" opinions could be considered much-needed secondary sources by super-experts in the field.


9. Posted by Ted on July 26, 2005 @ 14:35 | Permalink

If you include cert petitions, the Supreme Court has a unanimity rate far greater than 90%—and they don't have the advantage of a three-judge panel, where unanimity is simply easier to reach.

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