by Matt Barr

Shoot the clerks

I have heard few dumber ideas than Congress cutting off funding for Supreme Court clerks, leaving Justices with fewer, maybe only one each. (Link is for Atlantic subscribers only.)

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.

Prof. Kerr deftly illustrates the absurdity. "Eliminating secretaries would force the Justices to arrange their own schedules, keeping them from their debilitating reliance on staff assistance," he writes. "Perhaps best of all, it would effectively shorten their tenure by forcing them to do all of their typing and filing." Doing away with oral argument and written briefs would also help achieve these objectives.

Marty Lederman collects more arguments here, including one to the effect that law firms and other producers of complex legal services organize themselves so that the "front man/woman" isn't the one doing all the work, presumably not because partners are lazy but because it produces a better product, in demand among consumers. All good points.

Here's my own. Again, relying on Congress' judgment about anything is a bad idea, and particularly when we know (or strongly suspect) Congresspersons have issues with Supreme Court justices unrelated to promoting more effective government. Where I might have my own suggestions how to increase the number and quality of Court opinions, none involve Congress passing a silly law.

That of course is an argument about who should fix things, not how -- if you came up with a brilliant idea how to settle the law of the land more clearly and more often, you should probably not balk at Congress being the one to make it so, provided they have the power. But the two are really inseparable because we're talking about how a Justice can best and most efficiently do her job.

I am against laws that try to force people to do their jobs better in any walk of life. As between the people passing the law and the people doing the job, there is almost no situation where the people passing the law know better how to do that. It's really no different than laws trying to force people to live their lives better. Add to that the damage to interbranch comity you risk and it really starts to make more sense to look somewhere else to solve your problems.

Which brings us finally to what problems those are that you want to solve? Stuart Taylor and Benjamin Wittes in the Atlantic piece tick off "high-handedness," Justices spending their time on extraneous nonsense, and the Court "behav[ing] like a continuing constitutional convention" -- intruding on policy matters better left to other branches.

I would agree to an extent, probably describing the issue a little more directly. We have a Court that is essentially a mini-legislature, lobbying and cajoling for a majority on each issue instead of working toward consensus and finality. Solve that, somehow, and you solve the "high-handedness," individualism and emphasis on policy. I continue to think it's clear though that you "solve" this not externally and certainly not with laws, but internally. The Chief Justice needs to reform the culture of the Court. It's early enough in his tenure that we can continue to hope he will.

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