We understand that some of you have been upset by our recent coverage of a certain future Supreme Court clerk. As we mentioned over the weekend, we are instituting a moratorium on coverage of this clerk, at least for the time being. So all of you irate commenters can unwad your panties, spray Febreze on them, and toss them into the dryer.
But we WOULD like to defend, as a general proposition, the propriety of writing about Supreme Court clerks. The Elect should not be viewed as an off-limits or taboo topic. To those of you who object to our coverage of SCOTUS clerks — and rest assured, more is on its way — we have some points for your consideration. (If you have no problem with such coverage, then just ignore all of these posts.)
We’re going to spread our arguments out over a series of posts, so as not to tire you. We’re giving this series of posts a tag — “SCOTUS Clerks Are Fair Game” — so you can click on all the posts discussing this topic.
We apologize in advance if you find our arguments unpersuasive. Substantive analysis is not our forte, which is why we generally stick to gossip (and why our own interviews for Supreme Court clerkships ended badly). As you review our points, please remember that we are but humble members of The Great Unwashed.
The first point we’d like to make appears after the jump.
1. Supreme Court clerks are public figures. The tremendous influence that SCOTUS clerks wield, and the critical role that they play at the Court — in terms of deciding which cases get heard, crafting judicial opinions, and serving as “go-betweens” for the justices they work — have been well-documented in numerous books about the Court. Some Supreme Court clerks — especially those who clerk for “swing justices” — exercise more power, or have a greater effect on historical events, than many district judges, circuit judges, or high-ranking Justice Department officials. Yet no one would maintain that these judges or assistant attorney generals are off-limits, or that writing about them would be inappropriate.
The force of this argument cannot be blunted by relying upon the fiction that “everything important is done by the justices,” that the clerks’ role is purely ministerial. Now, don’t get us wrong — we’re not saying that the clerks are voting for their justices (although there have been documented cases in which aged or ailing justices ceded disturbing amounts of power to their clerks). But it is clear that for almost all of the justices, the clerks (1) play the major role in deciding which cases the Court hears, and (2) prepare the first drafts of opinions.
Let’s say that a clerk, through laziness or inattention, fails to delve deeply enough into the factual record of a case to appreciate its importance. He or she recommends that the Court decline to hear the case, i.e., deny the certiorari petition. And because the justices rely upon that clerk to get into the weeds on cert petitions — the justices aren’t reviewing lower court records themselves, at least not at the cert stage — the case is denied. One clerk’s error has just had a major effect upon the development — or lack thereof — of an entire field of U.S. statutory or constitutional law.
Or let’s say that a clerk drafts a certain section of an opinion in a sloppy way, or cites to one line of cases rather than another for a particular proposition. That sloppy discussion, or that errant citation, will control lower courts throughout the land — and, by extension, the fates of the litigants appearing before those courts. That young lawyer, perhaps only a year or two out of law school, has just done something that will affect the rules that millions of Americans must live under. (This is especially likely to happen in technical statutory areas — like, say, ERISA — that aren’t studied and taught as much in law schools. A clerk may be drafting an opinion interpreting a statute that he’s never had any prior dealings with.)
Okay, yes, we know: Before a petition for certiorari is denied, many justices and other clerks have at least considered its merits (however briefly). Before a Supreme Court opinion goes out the bronze doors, many pairs of judicial and clerkly eyes review it. That opinion, no matter who authored it, is effectively the product of “the Court.”
But let’s face it: At the micro-level, the people policing the work of clerks are OTHER CLERKS. The justices aren’t doing the cite-checking — not even of their own opinions, and certainly not of opinions that they are merely joining. So if a clerk, say, drafts a footnote in an opinion that contains errors about ERISA law, because he or she doesn’t know that area of law terribly well, the policy ramifications of that mistake reverberate throughout all of American jurisprudence. That mistake may wreak havoc in that field of law until it’s corrected by another Supreme Court decision — a process that could take years — or an act of Congress.
So even if the role of clerks at the Court may be exaggerated — as Linda Greenhouse claims (perhaps for self-interested reasons) — it can’t be denied that SCOTUS clerks are public figures. When their names appear on the list of clerks issued each year by the Supreme Court’s Public Information Office, they’ve been placed in the public spotlight — whether they like it or not.
There’s a reason why members of Congress and major interest groups, for example, make such a big deal over the racial makeup of SCOTUS clerks as a group. There’s a reason why a relatively low number of female clerks makes front page news in the New York Times. The reason is simple: Supreme Court clerks are public figures. Accordingly, because they are public figures, there is nothing unseemly in writing about Supreme Court clerks — just as there is nothing unseemly about scrutinizing members of Congress or federal judges. (And if a SCOTUS clerk should sue someone for defamation, the “actual malice” standard applicable to public figures should apply.)
[Additional points to made in a subsequent post.]