Eliminating Supreme Court Clerks
Citing a few examples of high handedness and the large amount of free time Supreme Court Justices enjoy, Stuart Taylor Jr. and Benjamin Wittes argue that it’s high time for Congress to intervene. While most anything aimed at that direction would be deemed unconstitutional by these self-same arrogant judges, there’s one thing Congress might get away with:
Eliminating the law clerks would force the justices to focus more on legal analysis and, we can hope, less on their own policy agendas. It would leave them little time for silly speeches. It would make them more “independent” than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.
There’s no reason why seats on the highest court in the land, which will always offer their occupants great power and prestige, should also allow them to delegate the detailed writing to smart but unseasoned underlings. Any competent justice should be able to handle more than the current average of about nine majority opinions a year. And those who don’t want to work hard ought to resign in favor of people who do.
For much of American history, the life of a justice was something of a grind. Watching the strutting pomposity of modern justices, this “original understanding” of the job—as a grueling immersion in cases, briefs, and scholarship—seems increasingly attractive. Justice Louis Brandeis once said that the reason for the Supreme Court justices’ relatively high prestige was that “they are almost the only people in Washington who do their own work.” That was true then. It should be true again.
Aside from the fact that this likely wouldn’t work–Supreme Court clerkships are so prestigious that most would take them for without pay or for a nominal stipend that the justices could easily finance–it’s hardly clear to me that this solution solves the problem.
To the extent Supreme Court Justices are arrogant, it is because they are incredibly powerful, have lifetime tenure, and have been told from their earliest days how brilliant they are. Essentially, they are a hybrid of the worst sins of Ivy League full professors and all-star professional athletes.