As employed today, clerks have contributed to the erosion of the Supreme Court as a cohesive judicial institution. Justices rarely communicate directly with one another about the cases before them; exchanges are typically mediated through clerks. Clerks, moreover, do not see themselves as employees of the Court, but of individual Justices. Clerks fuel the cult of celebrity that infuses the Court, and not just through loyalty and gratitude to the Justice who was wise enough to select them from a very impressive pool of candidates. Incredible as it may seem, some clerks cravenly or strategically flatter their Justices in a manner wildly inconsistent with the clerk’s private views. Frankfurter may have taken his clerks fully into his confidence, but one may doubt that the clerks always reciprocated.
The simplest solution would be to strip the Justices of all their clerks. We think such a step is unnecessarily radical. Instead, we propose that Congress reassign the clerks (perhaps in reduced numbers) to the staff of the Court’s Librarian. The Librarian would choose and supervise the clerks, who would not be permitted to draft legal opinions. Individual Justices would submit research requests to the Librarian, and the results of the research would be shared with all the Justices. Law clerks would thus serve more as servants of the Court than of individual potentates within the Court.
As with our other proposals, our intent is not to punish the Court or its members, but to encourage the Court to operate more like a judicial body and less like an academic faculty cum super-legislature. The job would no doubt become more challenging, not only compared with current practice, but also compared with the job of a circuit judge. We think it should. It might cause Presidents to select their nominees on the grounds of legal ability more often than they do now. It might even encourage some mediocre lower court judges to refrain from campaigning for a seat on the high court. The Justices might revert to an older practice of having open discussions with each other, rather than with their hand-picked votaries. And it would almost certainly deter some Justices from remaining on the Court after they have lost the capacity to do much more than hire talented law clerks.
Is such a change improbable? Of course. The court would no doubt stand on precedent if such a change were to be seriously considered. Is the change impossible? No.
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