Legal Commentary

In Defense of Supreme Court Law Clerk Polarization

By Ilya Somin

Adam Liptak?s New York Times article on Supreme Court law clerks suggests that there is something troubling about the fact that the career paths of conservative and liberal Supreme Court justices? clerks have diverged over the last 20 years. Liptak is a knowledgeable and generally fair-minded legal reporter. In this case, however, I think he is portraying a positive as a negative.

Justices have always tended to hire clerks who reflect their own ideological leanings. Prior to the 1980s, the ideologies of different judges? clerks didn?t differ much because there was little ideological diversity among the justices themselves. Until the appointment of several conservative justices by Ronald Reagan and George H.W. Bush, William Rehnquist was the only clearly conservative justice on the Court; Chief Justice Warren Burger was also conservative on some issues, but far from consistently so. Richard Nixon and Gerald Ford did appoint some justices that were more pro-prosecution on criminal law than the Warren Court was. But most of the Nixon and Ford appointees stayed well within the liberal post-New Deal consensus on other big issues before the court, such as race, gender, property rights, federalism, regulatory law, and the like. Two of the five Nixon-Ford appointees (Blackmun and Stevens) actually ended up voting with the Court?s liberal bloc on nearly all the important cases that came up in the 80s and early 90s. It isn?t surprising that these Republican justices ended up hiring clerks with views that didn?t differ much from those of the Court?s most liberal members. Scalia, Thomas, and ? to some extent ? O?Connor and Kennedy, were much more willing to challenge liberal judicial orthodoxies, and tended to hire more genuinely conservative clerks. Thus, the divergence between those clerks? later careers and the ones pursued by clerks for liberal justices.

In my view, the pre-1980s Supreme Court had serious flaws in its jurisprudence, and was badly in need of greater ideological diversity. I say that even though I oppose important elements of the conservative judicial ideology that came into prominence at that time. Liptak writes that the new polarization ?is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.? Perhaps not. But the previous homogeneity wasn?t politically neutral either. Rather, it reflected the fact that for several decades after World War II, the Supreme Court was dominated by a relatively homogeneous center-left legal elite that hired clerks cast in its own image. As both right of center and left-wing radical critics pointed out, that establishment?s view of the law was far from incontestably correct, nor was it free of political bias.

Today?s Supreme Court has many flaws. But it is a better institution for having more genuine ideological and jurisprudential diversity among its personnel. I admit that that judgment is partly based on my strong disagreement with many of the positions taken by the old-style liberal justices. But even if you think that their decisions were mostly correct, that is very different from claiming that they represented judicial decision-making that was somehow apolitical in a way that today?s more conservative justices and clerks are not; most of the earlier decisions closely tracked the political preferences of the moderate and liberal legal elites of the time. And even aside from the merits of particular decisions, it?s also important to recognize that small ideologically homogenous groups are vulnerable to deliberative pathologies such as groupthink that are less likely to arise in more diverse settings.

Full post as published by The Volokh Conspiracy on December 21, 2009 (boomark / email).