Supreme Court Trivia -- and Questions About Whether JusticesShould Write Their Own Opinions [phishing]

Thu Jun 8 06:57:00 PDT 2006

This is an interesting issue.  For me, Marty's reasoning is a bit too
quick.  What distinguishes justices from presidents and members of
Congress?  They are professionals.  As a practical matter (not
constitutional requirement) you need a graduate degree and some legal
experience to be a member of the Court.  The Solicitor General is
expected to be "learned in the law," and we have the same expectation of
justices.  People who are pros can do their own work.  So the best
analogy is to law firm partners.  Indeed, the Court has been likened to
a building containing nine small law firms. So what distinguishes
justices from partners?  Partners are not paid by taxpayers, but I'll
leave that argument to one side.  Hard to know the expectations of
taxpayers in general.  But more important...most partners I know work
harder!  They don't get free or reduced-price weeks-long European
vacations to teach summer school!  They can't control their own docket!
They can't reduce their work load at will!

I'll stop using exclamation points.  It doesn't bother me if justices
use law clerks sometimes to do first drafts.  But all the time?  That
would indeed tend to stifle original thinking, independence of mind, not
to mention good arguments based on more experience that the normal clerk
will ever have.  Justices have the taxpayer-provided time to do their
own work, at least some of the time.

Steve Griffin

Tulane Law School

________________________________

From: owner-LAWCOURTS-L at usc.edu [mailto:owner-LAWCOURTS-L at usc.edu] On
Behalf Of Marty Lederman
Sent: Thursday, June 08, 2006 8:19 AM
To: mschor at suffolk.edu
Cc: lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
Subject: Re: Supreme Court Trivia -- and Questions About Whether
JusticesShould Write Their Own Opinions [phishing]

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 <mailto:mschor at suffolk.edu> >

To: "Marty Lederman" <marty.lederman at comcast.net
<mailto:marty.lederman at comcast.net> >

Cc: <conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu> >;
<lawcourts-l at usc.edu <mailto: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
<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.h
tml
<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=cVgH3P5496
CJIl5m0K%2BkO%2FNaYpt%2BEzIgkxD1JS%2FEDz0%3D
<http://www.theatlantic.com/doc/200607/supreme-court-clerks?ca=cVgH3P549
6CJIl5m0K%2BkO%2FNaYpt%2BEzIgkxD1JS%2FEDz0%3D> .  
>>
<http://www.theatlantic.com/doc/200607/supreme-court-clerks?ca=cVgH3P549
6CJIl5m0K%2BkO%2FNaYpt%2BEzIgkxD1JS%2FEDz0%3D.%A0
<http://www.theatlantic.com/doc/200607/supreme-court-clerks?ca=cVgH3P549
6CJIl5m0K%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-r
eform/
<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.h
tml
<http://www.scotusblog.com/movabletype/archives/2006/06/whats_the_probl.
html> 
>>
>>----------------------------------------------------------------------
--
>>
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