In the press reports that followed the announcements that U.S. Supreme Court Justice John Paul Stevens was retiring and that U.S. Solicitor General Elena Kagan had been nominated to replace him, one theme appeared again and again — that their professional training, judicial ideology and/or judicial behavior (past or future) must be viewed in light of their past clerkship experiences and their present clerkship practices. Regarding Stevens, commentators and former law clerks praised the fact that the 89-year-old justice (himself a law clerk to former Justice Wiley Rutledge) still prepared the first drafts of his judicial opinions — the only justice to currently do so. “I write my own first drafts not because I think it will produce the best opinions but because it is my way of making sure that I am doing my work as carefully as I can,” Stevens once explained to a former clerk. “[I]t is a way of disciplining myself to master the record and to be sure that I have thought through the arguments.”
Stevens’ opinion-writing practices were not the only aspect of his chamber’s practices praised by court insiders and former clerks. Several articles added that he still had his law clerks review all petitions for certiorari, rather than relying on the “cert. pool” (a practice in which the cert. petitions are divided among the chambers, with the law clerks from each chamber reviewing a portion of the petitions and then preparing a memorandum that is circulated to all the justices in the pool). “It’s a lot of work,” conceded former Stevens clerk Kin Kinsports, “but Justice Stevens thought there should be a fresh set of eyes looking at these petitions [so] that the justices shouldn’t all rely on one clerk’s summary of a petition.” Currently, Justice Samuel Alito Jr. is the only other justice on the Roberts Court who has opted out of the cert. pool. Arguably, the unspoken assumption of these articles is that some justices may be delegating too much responsibility to their law clerks.
