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While serving as a law clerk to Justices Byron White and Clarence Thomas, I hope I was not as inept as the robed Mickey Mouse desperately trying to control a runaway broom carrying buckets of water. But that was the image that came to mind as I opened a new book, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by political science professors Artemus Ward and David L. Weiden. In fact, this book suggests that modern Supreme Court clerks play an ominous — rather than humorous — role in the work of the Court. The book’s most controversial thesis is that law clerks have assumed a significant and probably improper role in deciding cases on the merits. But the book relies too heavily upon both anecdotal evidence and the opinions of former law clerks for such a critical point. Admittedly, it is difficult to obtain objective evidence to assess the influence of clerks. But, in fact, what matters are the opinions of the justices, and not those of clerks with an often-strong inclination to inflate their own importance. Perhaps because researchers have access to relatively few justices’ files, the authors rely heavily upon Justice Harry Blackmun’s papers. Their “Case Study in Clerk Influence on Decision Making” is based solely on communications from Blackmun’s law clerks in the landmark abortion case Planned Parenthood v. Casey (1992). But their choice of example and reliance is questionable. A case that involves Roe v. Wade is hardly representative. And I have no doubt that the memoranda of Blackmun’s law clerks in Casey are not typical clerk communications. The Blackmun clerks who worked on Casey said some startling things to Justice Blackmun, both overtly political in nature (such as advising whether to grant cert with an eye to the 1992 presidential election) and disrespectful of other justices (for instance, “the evil nino [Justice Antonin Scalia] has yet to circulate” a dissent; “I have my doubts as to whether he [Rehnquist] deserves to be call[ed] �Justice’ on this one”; and “I cannot help but be disappointed with JPS [John Paul Stevens]“). I never saw such comments in the two chambers in which I clerked. NINE LAW FIRMS Generalizing on the basis of just one or even a few justices’ papers is dangerous. The Court operates like nine law firms, not one. Clerks, of course, help justices, especially with the cert process and opinion writing. But, in general, the one area in which justices least need clerk assistance is in deciding cases on the merits. Justices White and Thomas both humored clerks by discussing the merits of cases with us before oral argument, but both knew exactly what they were doing and would have been fine with no clerk input at all. Just as in Disney’s cartoon, in my experience, there was no question as to who was the sorcerer and who the apprentice in Supreme Court decisions. That said, the authors correctly assert that law clerks now play a substantial, if not the primary, role in opinion writing. All justices delegate significantly in this respect, as do almost all federal and state judges. So justices are not novel in this regard. The authors correctly identify a major reason for this development as the creation of the “cert pool,” in the early 1970s, in which several justices pool their law clerks to help evaluate cert petitions. The cert pool (now apparently including all but the clerks of Justice Stevens) does free up clerk time for other tasks. As a law clerk, I was responsible for writing first drafts of opinions. But my justices never rubber-stamped an opinion draft, nor to my knowledge did either one ever circulate an opinion that represented anything other than his views. One problem is that the Court’s opinions often are too long, and I attribute this to the increased role of clerks in opinion writing. Clerks have strong incentives to make the few opinions they draft “masterpieces,” and many of them have law review training that steers them toward academic arguments and excessive footnotes and citations. One thesis about the cert pool, however, did not resonate with me: that the cert pool has made individual clerks less influential in the cert process. My experience was that the pool heightened, not minimized, a clerk’s influence, particularly when a clerk recommended that cert be denied, which was usually the case. A pool memo that recommends “deny” can effectively bury a potentially important case, especially in the absence of a circuit conflict. Disagreements aside, Sorcerers’ Apprentices provides excellent insight into the roles of Supreme Court law clerks over the past 125 years. The Brethren it is not.
Stephen R. McAllister is a professor of law at the University of Kansas. He served as a law clerk to Justice Byron White during the 1989 and 1990 terms, and to Justice Clarence Thomas during the 1991 term.

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