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Influence of Law Clerks on SCOTUS -- Same as It Never Was

By William Vogeler, Esq. on November 05, 2018 | Last updated on March 21, 2019

Every trial lawyer knows the clerk is the most important person in the courtroom -- after the judge, of course.

The clerk stands at the gateway, insulating the judge from the riff-raff while leading worthy lawyers into chambers. The clerk shuts the door; the clerk calls the calendar; the clerk knows the judge.

At the U.S. Supreme Court, the law clerk is even more integral to the process of justice. "How much?" is the question. "Four percent more" is the answer.

Four Percent More

According to a new article in the Journal of Law, Economics, and Organization, the law clerk has evolved in the last 60 years. Chief Justice William Rehnquist, when he was a law clerk himself, said law clerks had little influence on decisions of their judges.

"In addition, each clerk is in a position to offer only a worm's-eye view of the Justice-clerk relation," he wrote in 1957.

In their paper titled Legal Rasputins? Law Clerk Influence on Voting at the U.S. Supreme Court, the authors offer new evidence. They looked at cases decided between 1960 and 2009, and concluded that law clerks had a "modest but statistically significant effect on how justices vote."

"To interpret the magnitude of this effect, our estimate suggests that, on average, a justice would cast approximately 4% more conservative votes in a term when employing his or her most conservative clerks, as compared to a term in which the justice employs his or her most liberal clerks," they said.

Like-Minded Clerks?

Writing for SCOTUSblog, Andrew Hamm points out a methodological hurdle for the study. Do clerks influence justices or do justices simply hire like-minded clerks?

Maya Sen, one of the authors of the paper, calls it the "the birds of a feather flock together" problem. If a conservative justice consistently hired conservative clerks, for example, conservative voting patterns would appear over longer periods of time without regard to the clerks' effect.

She says that clerks are hired well before their terms, however, and the study compares judicial voting inside and outside those terms.

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