CLERKS

Each Justice of the Supreme Court employs two or more law clerks. (In recent years, typically each Justice, other than the chief justice, has employed four clerks.) Most of the clerks are not long-term career employees, but honor law school graduates who have previously served for a year as clerk to a lower federal judge. Typically, the term of service for these noncareer clerks is one year.

The practice of employing recent law school graduates as short-term clerks began with Justice horace gray. Gray employed a highly ranked Harvard Law School graduate each year at his own expense while serving on the Massachusetts Supreme Judicial Court. He continued to do so when appointed to the United States Supreme Court in 1882. Congress assumed the cost of Justices' law clerks in 1886, but only Gray and his sucessor, oliver wendell holmes, continued the pattern of employing recent law school graduates. The widespread use of the Holmes-Gray practice began in 1919, when Congress authorized each Justice to employ both a "law clerk" and a "stenographic clerk." The use of young law school graduates as judges' law clerks for one- or two-year periods is now the prevailing pattern in most lower federal courts. A clerkship position with a Supreme Court Justice is prestigious, and former clerks have become prominent in the legal profession, government, the judiciary and academe. Three Justices had themselves served as law clerks to Supreme Court Justices (byron r. white, william h. rehnquist, and john paul stevens).

The employment of noncareer clerks has been defended as exposing the Justices to fresh ideas and the new theories current in their clerks' law schools. Concern that clerks have too large a role in decisions has been expressed, but this is exaggerated, given the clerks' brief tenure and what is known of the Court's decision process. A distinct concern is that with employment of more clerks, they increasingly play an inappropriately large part in the drafting of opinions. That concern is not so easily rebutted, since each Justice has used clerks' services in a distinct fashion, and there is insufficient reliable public information of the roles played by the Court's current clerks. Court opinions, however, have become longer, more elaborate in their arguments, and studded with citations. The opinions of several Justices appear to be written in a uniform law review style, suggesting that staff plays a large part in their drafting.

William Cohen
(1986)

Bibliography

Oakley, John B. and Thompson, Robert S. 1980 Law Clerks and the Judicial Process. Berkeley: University of California Press.