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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