Good Stewards: Law Clerk Influence in State High Courts*
Swanson, Rick A., Wasby, Stephen L., Justice System Journal
Court observers disagree over the influence judicial law clerks exert on the judicial decision-making process. To address this question, eighty-one justices on thirty-five state high courts in the United States were surveyed for their perceptions of the role of their law clerks. The data reveal that these clerks are highly useful in providing legal and factual information about cases, often make recommendations and help write judicial opinions, and sometimes collaborate with judges in reaching judicial outcomes. Thus, law clerks exert moderate influence overall on the judicial decision-making process in state high courts. These conclusions are consistent both with the predictions of principal-agent organizational theory as well as with the findings of studies of clerk influence on the United States Supreme Court.
For the public to perceive the rulings of courts in a democratic system as legitimate, the courts must be perceived as politically neutral and institutionally accountable for their rulings. Yet in recent decades, some court observers or participants have made accusations that judges in the United States are irresponsible in performing their constitutional tasks by partially delegating their decision-making role to their law clerks. Relatively little information exists, however, to evaluate this claim as it applies to law clerks in state high courts. The research here intends to address this question. After we review existing literature regarding law clerks and their influence in the United States, we apply organizational theory to the study of law clerks and then present the results of a survey of eighty-one state high-court judges, who were asked about their clerks' roles and influence. We will see that law clerks in state high courts perform several different roles in the decision-making process and exert a not insignificant amount of influence on that process overall.
The influence of U.S. Supreme Court clerks has been reported to vary from almost nil to the situation in which they practically substitute their opinions for that of "their" justice (O'Brien 1986:127). Even former clerks themselves disagree about their influence. Future chief justice Rehnquist, then writing as a Supreme Court law clerk, stated that the justices were clearly in charge (Rehnquist, 1957). Recently, however, a former U.S. Supreme Court law clerk renewed debate over the influence of law clerks when, in a "tell-all" book, he described a "cabal" of conservative law clerks who steered justices to right-wing results and one justice who was "spoon-fed" legal interpretations by clerks (Lazarus, 1998), claims that caused media debate over their veracity.
Two recent books on clerk influence on the U.S. Supreme Court offered more substantial evidence regarding the role of law clerks. Peppers (2006:211, 206) concluded that law clerks on the U.S. Supreme Court "do not wield an inordinate amount of influence" because "the necessary conditions for the exercise of influence by law clerks have rarely, if ever, existed on the Supreme Court." Finding evidence of somewhat stronger influence than had Peppers, especially in the certiorari-granting process, Ward and Weiden (2006:237, 246) concluded that "clerks are not merely surrogates or agents, but they are also not the behind-the-scenes manipulators portrayed by some observers. . . . Overall, then, we take a middle path-we suggest that the influence of the clerk is neither negligible nor total."
The question of clerks' influence is unlikely to disappear soon. The law clerk-appellate court judge relationship is an intimate working one, in which the primary intended function of the clerk is to research the facts and the law involved in a case, make recommendations to the judge regarding the proper outcome of the case, and then often draft the court's opinion in the case. In other words, the express role of law clerks is to affect the behavior of appellate court judges, even if it is only to help the judge to make more "accurate" rulings by providing better, more "correct" facts and law on which to base the decision. …