I argued in a prior post that it would be refreshing and valuable for a Supreme Court nominee to speak frankly about the role that ideology, or political judgments, must inevitably play in some judicial decision making, especially on the Supreme Court. In a recent review essay, The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court, appearing in the Florida State University Law Review, I argue that public anxiety over whether the justices are allowing ideology to inappropriately affect their judgments is reflected in frequently-expressed concerns about whether law clerks have undue influence on their justices. The abstract for the piece is below:
This piece provides an in-depth review and analysis of two recent books about Supreme Court law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. In addition, however, the essay addresses a question so obvious that it is rarely asked – why is there so much curiosity about Supreme Court law clerks in the first place? In the essay, I analyze a widespread concern – and one discussed in both books – that law clerks have “too much” influence or even that they are the real decisionmakers on the Court. I argue that in fact this concern is a proxy for two important questions: how does the Court decide what cases to take and what role does (and should) ideology play in the work of the Supreme Court.
With respect to the process of selecting cases to review on the merits – the certiorari (cert) process – I argue that a careful analysis of the process reveals that the likelihood is quite low that the Court denies cert petitions the justices would grant if they reviewed the petitions themselves instead of relying largely on their law clerks. I also argue that with respect to the cert process, the Court’s extreme secrecy does not serve it well. More information about how the process works and why the Court denies or grants cert in particular cases or types of cases would benefit the not only the bar and the public, but also the Court itself.
Second, I argue that concern about undue ideological influence by law clerks is really a displaced anxiety about the much thornier question of the appropriate role of ideology in Supreme Court judging. This anxiety arises in part from mixed messages about whether the Court is a political entity making important decisions about subjects on which there may not be social consensus or whether it is, as Chief Justice Roberts put it at his confirmation hearings, a neutral umpire calling balls and strikes. People seek to alleviate their anxiety by trying to figure out how the justices do their work – leading to the intense curiosity about what law clerks do. More candor about the inherently political nature of at least some of the Court’s work might not entirely eliminate the anxiety, but it would refocus it from the largely tangential question of law clerk influence onto difficult but crucial questions about the relationship between Supreme Court jurisprudence and ideology and about the proper role of the Court in our democracy.