Just how important are law clerks?
February 15, 2006 10:55 AM   Subscribe

David Garrow reviewed Justice Blackmun's papers, released to the public in 2005, and concludes that towards the end of his career, Blackmun's clerks all but signed his opinions. In an interview, discussing senility and Supreme Court Justices, Garrow argues that there has been "a dramatic increase over the last 35 or 45 years in the amount of the justices’ work that is performed by their law clerks," and recommends a "reduction to two or, even better yet, one clerk" from the four clerks available per Justice now. Garrow also comments on the now-deceased Chief Justice Rehnquist, who suffered from an addiction to painkillers in the 1980s. Garrow's view is controversial, though, and Legal Affairs published several responses in the same issue. Other law professors have weighed in, including Dan Markel, Mark Tushnet, and some of the folks at the Volokh Conspiracy. So how large is the impact of law clerks?
posted by monju_bosatsu (63 comments total)
Presumably, the judges will chose clerks that they trust to come up with their ideas as they age.

Also, Rehnquist wasn't addicted to pain killers, but to sleeping-type pills.
posted by delmoi at 11:02 AM on February 15, 2006

Excellent post. A very important topic. I'm glad you brought it up.

My thought is that the clerks are too important. Judges, who are appointed based on their merit, are relying too much upon non-vetted people who aren't appointed by merit by Congress.

The Consitution places the power in Congress to make appointments to the bench. I think that gives a nondelegable power to the judge. By delegating this power to clerks of arbitrary choosing, the judges are usurping the power of Congress. Either judges need to rely very little on clerks or Congress needs to start appointing clerks.
posted by dios at 11:02 AM on February 15, 2006

You and dios are going great guns with excellent legal related posts for the past few days. This one is particularly interesting. Thanks.
posted by caddis at 11:05 AM on February 15, 2006

This isn't as horrible a situation as people think it is.

The judge should always provide his clerks with his vote on the judgment and an outline of the legal reasoning he would like the clerks to pursue. I'd caution against overstating the problem of law clerks influencing their boss's opinion, however. Only a few current Supreme Court justices (Stevens and Roberts are the only ones that come to mind) have significant experience in private practice. Only Souter and Alito were active litigators in the public sector (state AG and US attorney, respectively.) Scalia, Thomas, Breyer, Kennedy and Ginsburg have all spent the vast majority of their pre-SCOTUS professional lives in academia, in policy-based advocacy in the executive branch, or on a lower court bench.

Clerks are bright-eyed smartypantses coming out of great schools like Harvard and Yale. They know a lot of legal theory, a great deal of substantive law, and are brilliant writers and thinkers, but have little or no practical experience in law. Well, neither do their bosses. Think of Supreme Court justices as permanent law students. And this is okay - to some extent, judges are supposed fly blind, distancing themselves from the practical effects of litigation judgments in an effort to focus on substantive law.
posted by Saucy Intruder at 11:12 AM on February 15, 2006

Oh, and to get a little gossipy, you can usually rely on UTR to keep you up to date on all the inside info on Supreme Court clerks, although that duty has been temporarily delegated to our very own amber_dale while A3G takes over Wonkette.
posted by monju_bosatsu at 11:13 AM on February 15, 2006

Actually, I should correct myself; Justice Ginsburg was general counsel to the ACLU and argued a few cases before the Court.
posted by Saucy Intruder at 11:13 AM on February 15, 2006

While I think Mr. Garrow has done an extraordinary job of detailing his research, I would suggest that it is probably incomplete. He admits that he never interviewed or talked to the clerks in question, nor did he interview or talk to clerks for other justices.

Many things, when removed from context, appear to be different animals than what they actually are.

I don't think four clerks for a Justice is a number so large as to be remarkable. Fifteen clerks would be remarkable, but four is probably about right for the workload. Precedents have to be researched, case law has to be found, arguments and counter arguments would be presented, coffee must be fetched, etc.

Considering that I know I could use two assistants, and all I'm doing is running a small company and riding herd on a three year old, I'm sure a Supreme Court Justice is in great need of assistants who are qualified to understand what it is they are assisting.

Should Congress get to vet clerks? Oh good lord, no. We don't need to make the government any bigger, thanks very much. The ideology of every Supreme is well known, long before he or she is confirmed. It is to be expected that those Justices will pick clerks that have similar ideology. (It would be a rare and wonderful thing if they picked people who would challenge their world view, but I think we all acknowledge that it is unlikely.)
posted by dejah420 at 11:26 AM on February 15, 2006

I wouldn't have expected any of the Supreme Court Justices to write their own opinions. I don't expect presidents to write their own speeches or Congressmen to write their own laws, either.
posted by empath at 11:37 AM on February 15, 2006

The Volokh article seems to be in favor of term limits for SCOTUS judges. Let's say it was one term, 20 years, or something like that. How would this effect the presidential races, I wonder? In that it would be predictable (except for death/retirement) how many seats would come up on a given presidential term.

It probably wouldn't matter that much, but the implications of fixed term Supremes are fun to think about.
posted by sohcahtoa at 11:38 AM on February 15, 2006

Justices do occasionally hire dissenting clerks; Scalia, for example, had Larry Lessig and Christine Jolls as clerks, and you couldn't call either a conservative. (And thanks for the link, monju_bosatsu!)
posted by amber_dale at 11:39 AM on February 15, 2006

sohcahtoa: The most interesting proposal for SCt term limits is for 18-year terms, with the terms staggered every two years. Under this system, every president would get to choose exactly two justices per term, which would avoid the randomness and gaming that results in the current system (e.g. unpredictable deaths, waiting to retire until the right party is in power). There are legitimate constitutional questions about such a system, but I think those could be resolved.
posted by brain_drain at 11:45 AM on February 15, 2006

Judges, who are appointed based on their merit, are relying too much upon non-vetted people who aren't appointed by merit by Congress.

What about members of Congress who rely even more heavily on their unelected staff? (and what empath said)
posted by brain_drain at 11:48 AM on February 15, 2006

brain_drain: Thanks, I hadn't thought to do the math. 18 years would be interesting.

Of course, the number of justices itself is arbitrary, isn't it? So if we were changing one thing [term limits], we could change another.

But that would never pass.
posted by sohcahtoa at 11:49 AM on February 15, 2006

It's arguably easier to change the number of Justices than the term. The number of Justices is set by statute, while the Justices are given life tenure by the Constitution itself. I don't think there's anyway to impose term limits without a Constitutional Amendment.
posted by monju_bosatsu at 11:53 AM on February 15, 2006

I don't think there's anyway to impose term limits without a Constitutional Amendment.

You may be right. The article I read on this (can't remember the source) suggested that the life-tenure problem could be resolved by appointing Justices to life on the bench, but only 18 years as a Supreme Court justice. After 18 years, the judge would still be a member of the judiciary, but doing something else, I forget what.
posted by brain_drain at 11:57 AM on February 15, 2006

It is to be expected that those Justices will pick clerks that have similar ideology.

Actually, I know for a fact that both Scalia and Thomas make a point of hiring at least one law clerk each term whose views don't track with their own. I don't have personal knowledge of the other justices, but it's probably fair to assume that it's a common practice.
posted by elquien at 12:01 PM on February 15, 2006

brain_drain: that's interesting, and something that I hadn't thought of. Article III says, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." You could make the argument, I guess, that "offices" refers to office as a federal judge, and not necessarily Supreme Court Justice. After 18 years each Justice could rotate off and go to one of the federal circuit courts and continue work as an appellate judge. However, I think there's a good argument to be made that "offices" refers to the specific office for which the Justice was appointed. Moving a Supreme Court Justice to another position in the federal judiciary might violate that requirement.
posted by monju_bosatsu at 12:03 PM on February 15, 2006

Interesting timing for this post, given what was reported today:
Justice Samuel A. Alito Jr. has hired one of the architects of then-Attorney General John D. Ashcroft's policies to serve as his law clerk at the Supreme Court for the rest of the current term, the court announced yesterday.

Adam G. Ciongoli, 37... was an aide to Ashcroft during Ashcroft's years as a senator and then came to the Justice Department, where he advised Ashcroft on terrorism issues in the aftermath of the Sept. 11, 2001, attacks. Among the issues he worked on were the detention of thousands of terrorism suspects in the United States and the use of military tribunals to try them.
(via Ann Althouse)
posted by alms at 12:45 PM on February 15, 2006

That was an interesting read. Also interesting are the letters clerks wrote explaining some of their side.

In addition, its hard to imagine law clerks wanting to see their writings scrutinized like this. They're doing a job, after all. Their job is to inform the judge and it seems reasonable to me that in some cases their job involves attempting to pursuade the judge. Even in a law firm, briefs consist of the work of a variety of people, but the person whose name goes on the signature line has to be ultimately responsible for the work.

Link certainly provides food for thought.
posted by dpx.mfx at 12:49 PM on February 15, 2006

Several interesting questions: if judicial term limits applicable to Art. III judges are passed, who would have standing to raise a constitutional challenge the case of term limits? Justices? Persons adjudicated before a court subject to these term limits?

The argument, I take it, would be that a Supreme Court justice would bring up a challenge in a district court, asserting violations of due process and separation of powers. (another question: would every Article III judge in the country have to recuse themselves?) A judge probably wouldn't be able to challenge it until the limit actually applied to them.

So, if you are a judge challenging these limits and you've waited your 18 years, then who do you sue to enjoin your departure? Clerk of the Court? Federal marshals? the Court itself? Who would enforce the limit, for the purposes of an Ex Parte Young claim?
posted by soda pop at 1:06 PM on February 15, 2006

Actually, I know for a fact that both Scalia and Thomas make a point of hiring at least one law clerk each term whose views don't track with their own.

I think that used to be the case, but I believe they have ceased doing this and now no longer have "counterclerks" on their staff.

delegating their power

I guess the're technically not delegating their POWER, since they still retain the power to either accept or dismiss a clerk's draft.
posted by darkstar at 1:08 PM on February 15, 2006

Dios: you are wrong on this one. Why not also limit the ability of a justice (or any judge for that matter) to hire secretaries or judicial assistants or staff attorneys?
posted by esquire at 1:10 PM on February 15, 2006

darkstar: Let me help you out here. Thomas does not hire anticlerks, but Scalia has hired them very recently.
posted by esquire at 1:11 PM on February 15, 2006

Ah! Do you happen to know who, by chance? I didn't think he had any on staff right now.
posted by darkstar at 1:12 PM on February 15, 2006

Dios: to elaborate on my point for a second -- in case it appears that I was being too glib with a person whose opinions I respect -- let me point out that the Appointments Clause itself recognizes that the Congress may vest the power to make inferior appointments in the Courts of law, so that it cannot be said that Article III authority is completely nondelegable.
posted by esquire at 1:16 PM on February 15, 2006

Saucy -- your view of law clerks is way out of date. Most of the law clerks at the Supreme Court recently have at least some and sometimes a lot of legal experience beyond law school and a district or appellate court clerkship. They are not all 37 years old, but they aren't especially bright-eyed youngsters, either.37 years old
posted by esquire at 1:21 PM on February 15, 2006

Monju: that idea was floated by Judge Laurence Silberman, a very prominent just formerly on the D.C. Circuit, a few years back.
posted by esquire at 1:23 PM on February 15, 2006

The Consitution places the power in Congress to make appointments to the bench. I think that gives a nondelegable power to the judge. By delegating this power to clerks of arbitrary choosing, the judges are usurping the power of Congress.

I will find time to worry about justices paying people to write legal opinion at their directions sometime after we address the problem of congresscritters being paid by lobbyists who write and provide law for them to pass.

Additionally, unless I misunderstand, this work is done on behalf of the justice before the justice signs it, which they could, at their discretion, not do. My boss doesn't write all our marketing materials but you can be damn sure they reflect his will.
posted by phearlez at 1:33 PM on February 15, 2006

esquire, Saucy is mostly right. Only a few of the clerks hired for next term are not recent law school grads, for example. There has been a trend toward hiring more mature and experienced clerks in recent years (Professor Orin Kerr clerked for O'Connor in OT 2004, IIRC), but the stereotypical bright-eyed Ivy grad with little legal experience remains the rule, not the exception.
posted by amber_dale at 1:51 PM on February 15, 2006

Amber: Wrong in general and wrong on specifics. Kerr clerked for Kennedy in OT2003. That year, and the year before, and the year after that, more than half of the law clerks on the court had at least one year of non-clerkship legal experience. Mostly with law firms, but also often with government agencies (SG, OLC).
posted by esquire at 1:56 PM on February 15, 2006

Let me clarify: I don't have a problem with the use of clerks in general. I do have a problem in the scenario that Garrow notes about the judge being nothing more than a rubber stamp for the clerk's output. Now I fully concede that it is much more the exception than the rule. And when the clerk is doing the research, the analysis, and the final drafting of the opinion, and the judge does nothing more than sign his name (as Garrow is saying Blackmun did) then I think there is a serious derogation of duty. That kind of judicial power is not delegable to that extent.

I certainly don't have a problem with use of a clerk in general.
posted by dios at 1:58 PM on February 15, 2006

Wow, one whole year of legal experience counts as more than a little? Especially if that one year is at a firm, where you're probably doing monkey work and training, color me unimpressed.

You do have me on Kerr's clerkship year. He took me on a tour of the Court, but I forgot which summer it was.
posted by amber_dale at 2:04 PM on February 15, 2006

In the book Closed Chambers, Edward Lazarus argues that excessive reliance on law student clerks by Supreme Court justices has led to the overuse of multiple-pronged constitutional tests, such as the Lemon v. Kurtzman test, instead of more elegant, pragmatic, and practical methods for settling constitutional issues. Because of the youth and academic background of the clerks, they are too enamored of too-clever-by-half constitutional arguments, Lazarus argues.
posted by jonp72 at 2:10 PM on February 15, 2006

Amber - you're the one who said that "saucy is mostly right," without quite having your facts together. No big deal that you got Kerr's clerkship year (and justice) wrong, but I don't think I said that more than half the clerks have only worked for a year. I said most (i.e., more than half) of the clerks have at least some (which would include one year of non-clerkship) and sometimes a lot of legal experience, and despite your tour of the court a few years ago, I do not think that you can really dispute that.

The fact is that there are more clerks than ever before who have served fellowships, government positions, even positions on law faculty than ever before. Since you blog about it, I suppose that you could look up the facts and figures yourself. So Saucy's view is out of date, like I said.
posted by esquire at 2:17 PM on February 15, 2006

esquire, I really don't think that's accurate. The only given is that a SCOTUS clerk will have a year's experience as a circuit court clerk, and maybe a year prior to that as a district court clerk. See A3G's compilation here and see what everyone's graduation dates from law school were.
posted by Saucy Intruder at 2:19 PM on February 15, 2006

Ginsburg actually has quite a bit of litigation experience. She basically wrote the ACLU's litigation strategy in getting women the same rights as men under the equal protection clause. The most noteworthy aspect of this strategy is that it began by finding instances where disparate treatment by gender worked to the disadvantage of males. For example, Frontiero v. Richardson involved a state statute which allowed women under a certain age to buy a more potent beer than men of the same age. (I think this is colloquially known among lawyers as the thirsty boy's case)
posted by subtle-t at 2:25 PM on February 15, 2006

esquire: I admit to having totally flubbed re: Kerr. However, you haven't produced any evidence that my generalization about most clerks having "little" legal experience beyond clerking is false. A year or two = little, in my view, especially if the experience is as an associate at a law firm and doubly so if you're considering the experience level at the time the clerkship starts, not the time of hiring. People who completed an appellate clerkship in summer 2005 and are hired by a justice in winter of 2006 while they are working at firms are not being hired for their experience in legal practice, despite the fact that they will have one year under their belts by the time the clerkship starts.

On preview, I see that Saucy has linked to data giving the graduation years of some of the previous classes of clerks. Please, show us something that supports your assertion.
posted by amber_dale at 2:39 PM on February 15, 2006

esquire, I am curious to know who is on Scalia's staff as a counterclerk, if you have a name. As I said, I didn't think he currently had one. Are you sure he does?
posted by darkstar at 2:50 PM on February 15, 2006

Profiles of Scalia's current clerks are here. "All four are conservative white males."
posted by amber_dale at 2:53 PM on February 15, 2006

One of them, Scott Martin, was once described to me as a "flaming liberal" by one of his college acquaintances. I guess something happened between then and now.
posted by subtle-t at 3:03 PM on February 15, 2006

subtle-t, A3G's characterization was based on their feeder judge pedigree, and Kozinski does not only hire conservatives (he hired Heidi Bond from Michigan, and she's pretty liberal). Maybe you have unmasked a counterclerk.
posted by amber_dale at 3:09 PM on February 15, 2006

Why in the world would I look around for facts to support your strawman? You blog about this stuff so presumably you would know better. To recap, Saucy said that clerks "are bright-eyed smartypantses coming out of great schools like Harvard and Yale." I said that the characterization was out of date because most clerks have some or more substantive non-clerkship experience. You said that Saucy was mostly right, and now it seems like you are trying to make this into a debate about what a "little" experience means. Granted, if you think that Saucy is right, then you think that most of the justices do not have experience either, but that must be hyperbole.
posted by esquire at 3:26 PM on February 15, 2006

Darkstar: I said "recently." You keep asking about this term but I don't know why.
posted by esquire at 3:27 PM on February 15, 2006

From Findlaw - Constitutional Law Center:
"When the Supreme Court was unveiled on February 2, 1790, six justices shared the bench."
"Congress holds the power to set the number of Associate Justices sitting on the Supreme Court and that number has gradually changed over time."

Why not a change to a mandatory retirement age? Or an annual fitness test, such as the military requires?
posted by Cranberry at 3:28 PM on February 15, 2006

esquire: As a third-party observer of your argument with amber_dale, I'd have to say that you've lost me. Looking at the graduation years from the links, it certainly does seem like Saucy's and amber_dale's assertions are accurate. It looks like a small minority of the new clerks could have possible done 1 or 2 years of non-clerkship work - is there anyone here that would assert that this was more than a "little" experience, especially since most of us have any idea what a first-year associate does?
posted by mullacc at 3:40 PM on February 15, 2006

whoops, "an idea", not "any idea"
posted by mullacc at 3:40 PM on February 15, 2006

You said some. I said little, because I thought your description overstated the amount of legal experience most Supreme Court clerks have. You said little was wrong. I tried to define little, and you now say you're not interested in what little means. You don't care about looking at data, and you refer to previous years' classes of clerks but refuse to provide citations. Based on the OT 2005 and 2006 classes, I stand by my characterization of the legal experience level of most Supreme Court clerks, which is that they have "little."
posted by amber_dale at 4:01 PM on February 15, 2006

To add to amber_dale's spot-on comments: Graduates of prestigious law schools who become associates at prestigious law firms will actually perform less important tasks than graduates of lower-ranked law schools who join smaller firms. When your client can afford to drop a million plus on a merger, the senior partner will be all too happy to staff a Harvard grad, billing $300 an hour, on document review. When dealing with less affluent clients, associates who bill at a lower rate will be asked to perform more substantively robust tasks - such as drafting a summary judgment motion or getting trial work.

This means that it very well may take 10 years for a big-firm lawyer to amass the experience that a small-firm lawyer will amass in 5 years. So a couple of years at Biglaw may make a small difference to a judge, but it's only slightly more beneficial than taking someone right out of law school.
posted by Saucy Intruder at 4:44 PM on February 15, 2006

Darkstar: I said "recently." You keep asking about this term but I don't know why.

posted by esquire

What in the world is your problem?

1. I began by saying that I didn't think Scalia had any counterclerks on staff any more.

2. You hopped in with a condescending statement "let me help you out", contradicting me. Yes, you said, "recently", but the context of your speech act was clearly a contradiction of what I was saying. Hence, your "recently" is reasonable to interpret as meaning "recently, and there is currently one on his staff, too".

3. I simply asked for more information, asking if there was actually one on his staff currently. You neglected to respond.

4. I reiterated that I didn't think there was one on his staff currently, and asked if you had any names. To which you respond with the latest comment, insinuating that you've been clear and correct, all along.

So, you really don't know why I continued to ask?

I'm trying not to be dogmatic, because I recognize I simply don't know all the facts. That's why I was asking you for clarification. I'm just interested in whether Scalia currently has a counterclerk and, if so, who that might be. But if you're saying he doesn't have one now, then that's fine. It supports my original supposition.

But even if I was flatly wrong, Jesus, you didn't have to be a dick about it.
posted by darkstar at 5:03 PM on February 15, 2006

I wouldn't have expected any of the Supreme Court Justices to write their own opinions. I don't expect presidents to write their own speeches or Congressmen to write their own laws, either.

This, to me, is one of the big reasons why the world is in such shitty shape today. People let their underlings do their hard mental work for them. I think this is asinine. No wonder the people holding the reins of power are so damned incompetent.
posted by beth at 5:08 PM on February 15, 2006

Darkstar: Back up a second. You began by saying that Scalia and Thomas used to hire counterclerks. Thomas does not. I was "helping you out" by correcting you without calling you wrong. Then I said that Scalia has hired some recently. You read into that I was saying that Scalia had current clerks who are counterclerks, I guess, but I definitely didn't say that. Then you asked again. I don't get it. If it's being a dick not to reprimand you on your reading comprehension than I am a dick. Whatever. You'll probably run into that problem a lot.
posted by esquire at 5:15 PM on February 15, 2006

A non-dickish response would be to say "Scott Martin is a current counterclerk." (If that's true.) Or even: "Gil Seinfeld was a counterclerk in OT 2002." Both have the virtue of being clear and more than marginally informative. You keep insinuating that you know more than the other people in this thread, but you haven't been backing up anything with specifics.
posted by amber_dale at 5:32 PM on February 15, 2006

Just came upon this thread. I've gone to school with; clerked at the appellate level with; and, as a BigLaw attorney, supervised many Supreme Court clerks over the last fifteen years, both before and after their clerkships. amber_dale is right and esquire is wrong. The majority of Supreme Court law clerks to have real-world legal experience as practicing attorneys, and when they do, the majority of those clerks have at most a year or two of legal work. Only in the last few years has the Supreme Court been even considering candidates with more than that experience, and those clerks came from academia. The recent Alito hires are unusual, reflect the rare circumstances of a Justice sitting for only half of a term, and Alito was clearly looking for a shortcut and drew from the pool of clerks he already knew.
posted by commander_cool at 6:53 PM on February 15, 2006

A couple of things:

1. Excellent post, monju.

2. A Supreme Court clerkship is, to this lawyer's mind, the most prestigious legal job in the land and it only goes to the smartest, most together young lawyers. I know about ten or fifteen people who have had the privilege of this job: without exception these people are among the very smartest I know. Unlike a seat on the Supreme Court, a clerkship with one of the Supremes is the closest thing to a pure merit job. While it does raise concerns about abdication of judicial authority (and more acutely, the tendency of federal judges to take the lifetime appointment thing ad absurdem), I have very serious confidence in the competence of Supreme Court clerks. Yes, that is a blanket statement, and I stick by it. They are not underlings, or low level civil servants. To a man, they are the best and the brightest of the legal world.

3. You are all mostly right when you say that a couple of years of work at a law firm of any size does not get you ready for a Supreme Court clerkship. Being super smart and clerking for other federal judges does prepare you. It is extremely rare for a Supreme Court clerk not to have clerked for one or more federal judges or for a state Supreme Court. Also, consider this: the longer you are in a specialized practice, the more substantive law you forget. Many brilliant experienced litigators are now supremely unqualified for the clerkships they held as young lawyers because, for example, they no longer do all of their own research.

4. I'll second jonp72's recommend of Lazarus's book. An excellent read.
posted by kosem at 7:09 PM on February 15, 2006

To a man, they are the best and the brightest of the legal world.

Well, some of the best. After all, the difference between being first in your class at Harvard and first in your class at, say, BC is your LSAT score. Getting into a top 5 school is only partly due to merit and leaves much to chance.
posted by Saucy Intruder at 7:32 PM on February 15, 2006

I agree with you to a point, Saucy. I know plenty of flat out idiots who did well on their LSAT and got into Harvard, NYU, etc., and I know many much smarter graduates of Fordham, Hastings and Florida. The former never get Supreme Court Clerkships, the latter do once in a blue moon.

There's always chance involved, and overemphasis on which law school you went to is often misplaced. That doesn't really say anything bad about those who do get the clerkships.
posted by kosem at 7:47 PM on February 15, 2006

wasn't it pretty much an open secret in the legal community that clerks do much of the heavy lifting for their bosses? it certainly is known to the public since the "Brethren" , and since the Thurgood Marshall papers were made public

and thanks for the "Congress should appoint clerks" thing, that made me laugh my ass off.
posted by matteo at 8:41 AM on February 16, 2006

esquire, thanks for your clarification.

I appreciate your admission that even after I've explained it, you still "don't get it". I do find it remarkable that you interpret that lack of understanding to my poor reading comprehension, rather than your own. But that's not something I care to invest the effort in trying to unravel, further.

But it seems that we have come to some consensus: no one on the SCOTUS currently has a counterclerk, you think I have poor reading comprehension, and we both think you are a being a dick (though for different reasons).

I can live with that.
posted by darkstar at 9:01 AM on February 16, 2006

Oh, and many thanks for the post, monju!
posted by darkstar at 9:02 AM on February 16, 2006

I think the amount of work done by clerks varies with each justice's idiosyncrasies. Anectdotally, Michael Dorf (a professor at Columbia and a former Kennedy clerk) drafted the most important parts of Casey v. Planned Parenthood.
posted by subtle-t at 9:02 AM on February 16, 2006

Al Gore may have invented the Internet, but Bill Clinton invented the Tushnet.
posted by ericbop at 10:38 AM on February 16, 2006

Tushnet once said that if he were ever appointed to the federal bench, he would do all he could, as a judge, to steer America toward socialism. Guess who's not a federal judge?
posted by subtle-t at 12:01 PM on February 16, 2006

Well, hell.

On reflection, I really regret the whole "being a dick" comment, esquire. I apologize.
posted by darkstar at 5:13 PM on February 16, 2006

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