Vol. 13 No. 5 (May 2003)

 

LAW CLERKS, SUPPORT PERSONNEL, AND THE DECLINE OF CONSENSUAL NORMS ON THE UNITED STATES SUPREME COURT, 1935-1995. by Bradley Best. New York: LFB Publishing. 278 pp. Hardcover. $70.00 ISBN: 1-931202-35-4.

 

Reviewed by: Scott A. Comparato , Assistant Professor, Department of Political Science, Southern Illinois University, Carbondale. Email: scompara@siu.edu.

 

Pritchett‚s THE ROOSEVELT COURT stands as a landmark in the study of judicial behavior. This is so in part because he was among the first to employ the tools of social science to analyze what was at the time, a relatively recent phenomenonųthe rising rates of dissent on the Supreme Court. Some, such as Ulmer, Schubert, and Spaeth built on Pritchett‚s work, using quantitative methods to analyze patterns of agreement on the Court while others such as Murphy employed more qualitative approaches to intra-court dynamics. These studies, and many lines of research since, have focused on better understanding the inner workings of the Court and the decline of consensus.

 

In LAW CLERKS, SUPPORT PERSONNEL, AND THE DECLINE OF CONSENSUAL NORMS ON THE UNITED STATES SUPREME COURT, 1935-1995, Bradley Best follows in this tradition, suggesting that the rise in separate opinion writing on the Court over the last sixty-plus years is related directly to the rise in the number of law clerks and support personnel employed by the justices. Best points out that the use of clerks is a 20th century phenomenon, and an increasing numbers of clerks has „∑altered the task environment encountered by the justices. Further, it follows that this change in the task environment has had the operational effect of altering the set of incentives encountered by justices in the opinion writing processš (p.33). Best contends that the widespread use of law clerks has allowed the justices the freedom, and even the incentive, to assert their individual preferences in the form of concurring and dissenting opinions.

 

The history of law clerks and the role they have played for the Court is a worthy topic, and Best does a nice job discussing the history of clerks working for the Court. Throughout much of the 19th century, the Court‚s docket was relatively stable, allowing the justices to complete their work without additional support. However, by the late 1800s, it was clear that the justices were in need of assistance to cope with ever increasing caseloads. In 1886, Congress allocated one „stenographicš clerk to each justice, but it was not until 1919 that each justice received his own law clerk.

 

While clerks originally did little other than „perform research tasks that would support the justices‚ formal duties∑allowing the justices complete dominion over the core tasks of case selection, decision making, and opinion writing,š the role of the clerk changed considerably with the passage of the Judiciary Act of 1925, which gave the Court nearly complete control over its docket (pp.35-36). As Best argues, it was this legislation more than anything else that led to the emergence of law clerks as important players in the halls of the Court. As a result, clerks began to play an integral role in the case selection process. This was enhanced further by the creation of the certiorari pool in the early 1970s, another effort at streamlining by the Court, whereby each clerk would be responsible for preparing memoranda for a set of cases that would then be circulated to all justices in the pool. Today, all of the justices are members of the cert pool save for Stevens, whose clerks continue to brief all petitions arriving at the Court.

 

It is this transformation of the role of the clerk in the Supreme Court that forms the primary justification for Best‚s work, and he begins his analysis with the following premise: „∑the increasing presence of law clerks has altered the Court‚s task environment in a manner that diminishes the frequency of interaction among the justices, encouraging each justices to act individually∑š (p.44). However, not only should the increased presence and prominence of law clerks alter the work of the justices, so too should the increasing number of other support personnel working for the Court. Best relies on research that focuses on the importance of institutions, but also borrows heavily from small group analyses of the courts and legislative bodies. Employing sociological theory as well as the literature on voting fluidity and bloc analysis, he concludes that traditional small group analysis is in need of reconsideration, suggesting that „neo-institutionalš models offer a better opportunity for assessing the important role played by clerks and support staff in the decline of consensus on the Court.

 

Best offers a number of hypotheses related to the role of clerks, but they can be easily distilled into two general contentions. The first is that the increase in the number of law clerks and support staff has led to increasing levels of independence by justices as evidenced by the growth in separate opinion writing, and the second is that the clerk effect will hold when controlling for other institutional factors, including ideology, changes in the size and composition of the docket, frequency of turnover on the Court, leadership style, and judicial experience. He tests these expectations using data gathered on the Court from 1935-1995 in an effort to better understand Court behavior prior to the 1940s, when it became clear that any norms of consensus that existed on the Court were quickly disappearing.

 

The analysis produces a number of interesting results. As has been well documented elsewhere, the number of total opinions has increased substantially in the last half of the 20th century, largely mirroring the rise in the Court‚s caseload. However, the data presented by Best reflects the downturn in the number of cases decided with full opinion by the Court during the last fifteen years. What is most interesting about the data presented is that while the docket of the Court continued to rise through the mid-1980s, the number of opinions per case appears to flatten out starting in the mid- to late-1970s. The pattern in the total number of opinions is paralleled by the number of opinions for the Court as a percentage of all opinions issued also appears to halt its decline in the 1970s and even shows an increase in the 1980s. However, there is little discussion or speculation on the possible reasons for these patterns. While the general trend has been toward larger caseloads and more non-consensual decisions, it would have been helpful to include a discussion of this pattern in the data. Is there, in fact, something going on in more recent years that is qualitatively different from earlier periods? Best does not address this directly, though he does suggest that „it is possible that between 1986 and 1995 ∑ justices encountered a decreasing number of őopportunities‚ to draft opinionsš (p.125). It is not entirely clear what the author means by „opportunities,š but the analysis would have been significantly strengthened with a discussion of this analytical artifact.

 

The author does present results from both bivariate and multivariate models, demonstrating that the rise in the number of law clerksųthough not support personnelųis correlated with the rise in concurring and dissenting opinions. While the bivariate results are suggestive, Best controls for several institutional factors including the heterogeneity of the Court, the chief justice, turnover, inexperience, caseload, and docket composition. The results of the multivariate model indicate qualified support for the expectation that increasing numbers of law clerks have led to more dissents and concurrences; however, the same does not hold for support personnel. As Best explains, these results should be interpreted with some caution as the models suffer from collinearity among a number of the independent variables. Overall, he concludes that the analysis provides at least tentative support for the notion that the increasing presence of law clerks, though not support personnel, has led to a rise in the number of separate opinions.

 

This work will be of interest to many who want to learn more about the evolving role of law clerks. It is a creative take on an old question, and Best offers some plausible evidence suggesting that the ability of justices to assert their independence on the Court is tied to the presence of clerks. Perry (1991) provided us with a window into the world of clerks working for the Supreme Court, and while few who study the courts choose to focus their research on them, Best provides us with even greater insight into the role played by these actors and the impact their presence may have on the workings of the Court.

 

References

 

Perry, H.W., Jr. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge: Harvard University Press.

 

Pritchett, C. Herman. 1948. THE ROOSEVELT COURT. New York: Macmillan.

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Copyright 2003 by the author, Scott A. Comparato.