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Lucas E. Morel

Disorder in the Court?

When William Rehnquist was appointed to the Supreme Court in 1971, Justice William Douglas sent him a note that said: "I realize that you were here before as a member of the so-called Junior Supreme Court." Douglas was alluding to Rehnquist's stint as a law clerk to Justice Robert Jackson during the October 1952 Term. Law clerks were then coming into their own as aides to the justices, especially in reviewing certiorari petitions, or "certs" (which request the Court to hear an appeal), and researching case law as the basis of Court opinions. As one of only three Supreme Court law clerks to return to the high court as a justice, Rehnquist was quite familiar with the Court's dependence on recent law school graduates for much of its intellectual heavy lifting.

Too dependent, in fact, if one is to believe the account of Edward Lazarus, a former law clerk to Justice Harry Blackmun (October 1988 Term). In Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, Lazarus argues that law clerks have become a crutch for the nine justices and are routinely given far too much responsibility. (After spending just one year fresh out of law school assisting a lower federal court judge—as Lazarus did for Judge William Norris of the Ninth Circuit Court of Appeals—applicants may seek a one-year clerkship at the Supreme Court.) Today, the Court's 34 law clerks get the first look at almost 8,000 petitions, then write memos recommending which ones the justices should accept or deny, with only one in 100 cases receiving a high court hearing.

With eight of nine justices availing themselves of this "cert pool" (Justice John Paul Stevens is the lone holdout), the clerks act as gatekeepers for those few cases they deem worthy of a Supreme Court hearing. More important, after justices decide to affirm or reverse a lower court decision, they let their clerks draft the opinions. Typically, the justices outline the arguments to be made and then edit ...

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