Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court.

Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court 

Artemus Ward David L. Weiden NYU Press www.nyupress.org 352 pp., $39

Although Sorcerers' Apprentices does not mention the famous orchestral piece animated in the movie Fantasia, it is shaped by its provocative imagery. The book does refer to the 1797 poem that inspired the composition, cautioning that if Supreme Court law clerks continue to overstep their bounds, "like the apprentice in von Goethe's poem, [they] may find themselves unable to quell increasing threats to the Court's legitimacy."

The allusion is dramatic--but hardly apt. It illustrates the tendency toward sensationalism in a book that claims a scholarly pedigree as "the first comprehensive examination of law clerks at the U.S. Supreme Court."

The book does cover a comprehensive time period, from Justice Horace Gray's first clerk in 1882 through the 2002 Rehnquist Court. Its scope also is ambitious: Sorcerers' Apprentices discusses clerks' selection, their role in the Court's review of petitions for certiorari, their influence in decision-making, and their writing of draft opinions.

It draws on historical accounts, information combed from justices' papers, and a survey that 160 former law clerks answered. The general theme is that clerks have more influence now than they used to have, and more influence than they should have, both on the Court as a whole and on their individual justices.

The book concludes that law clerks heavily influence the Court's agenda through the "cert pool," a mechanism for sharing the task of writing memos on the burgeoning numbers of petitions for certiorari. The authors blame the clerks for the declining number of cases the Court accepts each year, a trend that has reduced the caseload by more than half since the Rehnquist Court began.

While the growing cert pool may be one factor, other reasonable explanations exist. It may be that fewer conflicts are coming from lower courts increasingly dominated by Republican appointees, or that litigants have avoided seeking review on certain issues as the Court's members have changed.

Interactions among justices also may play a role. For example, small changes in the collegial tendency to vote to "join three" to provide the necessary four votes to grant a petition could dramatically alter the outcome of certiorari decisions. But this book is focused on the clerks.

The authors compare clerks' attitudes over time by averaging survey answers of those who worked at the Vinson Court (1946-1952), the Warren Court (1953-1968), the Burger Court (1969-1985), and the Rehnquist Court (1986-2002). Even when aggregated this way, responses from the Vinson and Rehnquist Courts are sparse.

Only 12 clerks who served after the 1989 adoption of the Supreme Court's Code of Conduct for Law Clerks, which stresses the confidentiality they owe their justices and the Court, returned surveys. That means, on average, only one clerk per year from 1990 to 2002 responded, or a mere third of the clerks in a single term--hardly a representative sample from either perspective.

One of the book's most flamboyant assertions is that "over time, clerks have become increasingly successful at persuading justices on cases and issues." Yet this interpretation is inconsistent with the authors' own finding that clerks from all eras place "law clerk's persuasiveness" near the bottom of the list of factors that they think influence justices' decisions.

The survey questions can do no more than suggest the clerks' mind-set; they reveal nothing about their actual influence on the seasoned jurists who sit on the bench. Moreover, the book's graphs do not support the conclusion that clerks' attempts to influence justices are on the rise. This illustrates a major shortcoming--in the authors' eagerness to show increasingly manipulative behavior, their generalizations often overreach their data.

In general, the authors fail to support their claims by showing that the differences in the averages they compare are statistically significant, and they neglect to provide any measure of the variation in clerks' responses for each era. These are serious flaws in any empirical study.

Sorcerers' Apprentices does shed interesting light on the dynamics in Justice Lewis Powell's chambers. Powell evidently communicated with his clerks in writing, and the book quotes extensively from his papers. His comments on his clerks' work demonstrate Powell's respectful relationship with them and provide valuable insight on how he defined their role.

In contrast, the Blackmun papers are vast in size and scope, but they are largely limited to the clerks' side of their conversations with the justice--for while they wrote, he spoke.

The book would have been greatly strengthened by a discussion of the institutional safeguards that currently limit the clerks' role. For example, the Supreme Court has seen a decline in what might be called "professional clerks," although lower courts have not. No clerk worked more than two terms during the Rehnquist Court, but some worked stints of up to 17 years in the Court's early years. The authors note this trend but do not discuss how it has reduced the risks associated with a semi-permanent clerk. The only example of a clerk who presumed to speak for a justice is not recent, but a five-term clerk who served in the 1940s.

The recommendations in Sorcerers' Apprentices range from trite to unworkable. At one extreme, the book suggests that opinions be credited to a justice's chambers rather than an individual justice, to acknowledge the clerks' role in drafting. At the other extreme, it recommends that the Court make cert pool memos public as a way to ensure that clerks' analyses are objective.

Most curiously, after attempting to attribute clerks' roles to institutional factors, the authors seem to place the primary onus on future clerks. They almost plead with them to exercise restraint, urging that "the apprentice has a responsibility to be true to his or her role."

At least that final admonition does not treat clerks as out-of-control apprentices who need to be checked from outside the Court. Modern clerks are simply junior lawyers who give considered advice. They are in a position of trust and owe a duty of loyalty, both to their justice and to their subordinate role. They offer analysis and suggestions in a private setting that permits candor. Publicizing their memos would be as disruptive to the Court's work as publishing the advice of junior associates would be in a law firm.

Sorcerers' Apprentices provides an account that will appeal to those interested in the inner workings of the Supreme Court. But an inflammatory thread runs through the book, and readers should not accept the authors' warning of an "increasing danger that clerks could exploit their positions in order to shape outcomes." The support for this fear is highly suspect, at best.

ELLEN E. DEASON is a professor at Ohio State University's Moritz College of Law. She served as a law clerk to Justice Harry Blackmun.