First, let's fire all the law clerks

Stuart Taylor and Benjamin Wittes, writing in The Atlantic, advocate a bold move to improve the Supreme Court: firing the law clerks and forcing justices to write their own opinion. Noting the extensive travel and other outside activities of the justices, and taking shots at conservative and liberal justices alike for their sometimes tendentious commentary off the bench, they make a solid point:

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.

No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her. Yet that is exactly what the Court now has—four clerks in each chamber to handle the lightest caseload in modern history. The justices—who, unlike lower—court judges, don't have to hear any case they don't wish to—have cut their number of full decisions by more than half, from over 160 in 1945 to about 80 today. During the same period they have quadrupled their retinue of clerks.

Because Supreme Court clerks generally follow a strict code of omertà, the individual justices' dependence on them is hard to document. But some have reportedly delegated a shocking amount of the actual opinion writing to their clerks. [....]

For much of American history, the life of a justice was something of a grind. Watching the strutting pomposity of modern justices, this 'original understanding' of the job—as a grueling immersion in cases, briefs, and scholarship—seems increasingly attractive.

Needless to say, this proposal will find no support from the justices, and no support from the academic law community, which prizes clerkships as career boosters for (presumably) brilliant young legal minds.

Unless the idea catches fire in grassroots America (unlikely in the extreme), no change will happen. Instead, the prestige of the activist Court will continue to delcine. The authors' citation of Justice Brandeis is apt:

Justice Louis Brandeis once said that the reason for the Supreme Court justices' relatively high prestige was that 'they are almost the only people in Washington who do their own work.' That was true then. It should be true again.

Hat tip: Ed Lasky

Thomas Lifson 6 19 06