Supreme Court Trivia -- and Questions About Whether Justices Should Write Their Own Opinions

Thu Jun 8 06:19:09 PDT 2006

Just to be clear:

I tend to agree with Miguel that writing one's own drafts does -- as Justice Stevens's quote suggests -- force one to confront the difficulties of the arguments, and to test one's presuppositions about the question.  There are always complications and problems lurking that the "author" would confront if she were doing all the research and writing herself.  But that's true, as well, with respect to presidential speeches, and congressional draft legislation, and briefs filed under the name of law-firm partners, and OLC opinions, etc.  And yet most of those people in positions of authority have concluded that it's not worth the candle for them to spend the time doing the writing themselves.

That's probably what most SCOTUS Justices have concluded, too.  And it's not hard to see why:  I suspect that in the case of most Supreme Court Justices (unlike Stevens), having them write their own opinions would rarely result in a change of votes or in improved opinions, because they are not terribly concerned about "figuring out" the "right" answer, they're not especially worried about addressing all the vulnerabilities in their arguments, and, ultimately, they care more about the basic decisions than about the details of the reasoning in their opinions.  Yes, I know, this is a gross overgeneralization.  Some, such as Justice Stevens and Chief Justice Roberts, obviously do care about the craft, and that's why they are more directly involved in the writing of their opinions.  That's a good thing, I think -- just as it would be a good thing if other public and private decisionmakers did not delegate so much of their work-product to others.  But we crossed that bridge a long, long time ago, and no one is clamoring to cut the appropriations of presidential speech writers, or legislative attorneys in Congress, or OLC staff attorneys, or Assistants to the Solicitor General, etc.

I think the reason many of us view Supreme Court Justices differently in this respect is that too many of us think of them as akin to academics, and wish that they would treat their opinions the way, e.g., scholars treat their own writings.  But the Justices likely see themselves -- appropriately, I think -- more as government decisionmakers making deals and compromises, and wielding power, rather than as deep thinkers providing "original" scholarship on deep questions.  And as such, the use of very bright apprentices to write first drafts in most cases makes a lot of sense, just as it does in most other public organizations.  When the Justices wish to write something more in their own voice, or when they want to start from scratch in figuring out a case (as Stevens often does, to his credit), they can do so -- but that'll be the exception rather than the rule.  

----- Original Message ----- 
From: "Miguel Schor" <mschor at suffolk.edu>
To: "Marty Lederman" <marty.lederman at comcast.net>
Cc: <conlawprof at lists.ucla.edu>; <lawcourts-l at usc.edu>
Sent: Thursday, June 08, 2006 8:26 AM
Subject: Re: Supreme Court Trivia -- and Questions About Whether Justices Should Write Their Own Opinions

> Marty's conclusion that reducing the number of clerks to induce Justices 
> to write their own opinions  is of little value goes to the heart of 
> what I think is an important problem.  It is ironic that among 
> educational institutions only law schools profess to use the Socratic 
> method given Socrates's marked distaste for rhetoricians.  There is, I 
> believe, however, a very intimate connection between working through a 
> problem in a sustained fashion--whether orally or in writing--and 
> critical thought. I addition to improving the quality of the opinions, 
> there may be other pay-offs to having the Justices do their own work.   
> While Socrates's argument that critical thought leads to agreement on 
> contentious issues is not particularly credible, it is not a stretch to 
> think that reducing the number of clerks might also lessen ideological 
> disagreements as the Justices would be forced to think their way through 
> a problem rather than rely simply on their ideological gut reactions.    
> Miguel
> 
> Marty Lederman wrote:
> 
>> As of this past Monday, the seat currently held by Justice Stevens has 
>> changed hands only twice in the past 90 years.   That's not a typo.
>>  
>> Is there any governmental office in the U.S. about which the same -- 
>> or anything even close -- could be said?
>>  
>> Notably, the two Justices who have held that seat for the past 67 
>> years are both known for their (increasingly rare) practice of 
>> drafting most of their own opinions.  And all of a sudden, prompted by 
>> the publication of two new books about Surpeme Court clerks, there's a 
>> flurry of discussion about whether clerks have too much influence, 
>> whether Justices ought to draft their own opinions, and whether 
>> Congress should reduce the number of clerks.  (This has long been 
>> David Garrow's hobby-horse, of course.)
>>  
>> See Richard Posner's review here:
>>  
>> http://howappealing.law.com/053006.html#014884 
>>  
>> (Posner also provocatively suggests that the Court's deliberations 
>> should be much more transparent.  I discuss that suggestion briefly 
>> here:  
>> http://www.scotusblog.com/movabletype/archives/2006/05/posner_on_scotu.html.)
>>  
>> And in the latest Atlantic, Stuart Taylor and Ben Wittes argue that 
>> the number of law clerks should be reduced to one per chambers.  
>> http://www.theatlantic.com/doc/200607/supreme-court-clerks?ca=cVgH3P5496CJIl5m0K%2BkO%2FNaYpt%2BEzIgkxD1JS%2FEDz0%3D.  
>> <http://www.theatlantic.com/doc/200607/supreme-court-clerks?ca=cVgH3P5496CJIl5m0K%2BkO%2FNaYpt%2BEzIgkxD1JS%2FEDz0%3D.%A0+>
>>  
>> Like Posner, Taylor and Wittes think there's little excuse for 
>> Justices not writing their own opinions. But also like Posner, they do 
>> not explain why Supreme Court Justices are differently situated from, 
>> say, Presidents, or legislators, or law-firm partners, etc., when it 
>> comes to drafting what gets published under their name; nor do they 
>> offer much reason to believe that the work product of the Court would 
>> be appreciably different if Justices did most of the heavy lifting.  
>> (For his part, Posner doesn't think there's evidence the Court's 
>> output would change very much . . . except that the opinions would 
>> likely be shorter and less "scholarly" -- which are, of course, 
>> improvements from Posner's perspective.)
>>
>> Taylor and Wittes suggest that the principal benefits of their 
>> proposal are that it would give the Justices "little time for silly 
>> speeches," and that it would make the Justices' jobs harder and more 
>> tedious, thereby inducing them "to retire before power corrupts 
>> absolutely or decrepitude sets in."  (But cf. Justices Holmes, 
>> Douglas, Stevens . . . )
>>
>> Orin Kerr has a very amusing response to Taylor and Wittes here:
>>
>> http://www.orinkerr.com/2006/06/07/a-modest-proposal-for-supreme-court-reform/
>>
>> I offer a few comments here:
>>  
>> http://www.scotusblog.com/movabletype/archives/2006/06/whats_the_probl.html
>>
>>------------------------------------------------------------------------
>>
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> 
>
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