TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Monday, January 8, 2018

Reynolds: Eliminating Lower Federal Court Clerkships (And Limiting Supreme Court Justices To One Clerk) Would Strike Blow Against Sexual Harassment, Inequality

Wall Street Journal op-ed:  Why Do Federal Judges Need Clerks, Anyway?, by Glenn Reynolds (Tennessee):

Chief Justice John Roberts wants to do something about sexual harassment by federal judges. ... Judges have inordinate power over their clerks—and the best solution is to abolish clerkships. ...

Getting rid of law clerks would eliminate the harassment problem and get judges doing their own work. Justice Louis Brandeis, who served from 1916-39, is said to have observed that the high court’s members “are almost the only people in Washington who do their own work.”

That’s not true anymore. The Supreme Court decided 160 cases in 1945, when each justice had a single clerk. Nowadays it decides about half as many cases with four clerks per justice. Law clerks were unknown for roughly the first century of the American judiciary, and the courts seemed to do fine. As my law students often comment, the older opinions are shorter and more intelligible than the newer ones.

So I propose eliminating law clerks for the lower federal courts. If the workload is too burdensome, we can always add more federal judges, as some are already suggesting. The federal courts already have excellent librarians to help with research, and staff attorneys to deal with frivolous petitions.

The Supreme Court has the additional burden of wading through thousands of certiorari petitions and deciding which cases to hear. That’s probably too much for justices to do on their own, but I’d limit the justices to one clerk each, as in 1945. That would ensure that justices do their own work again—and encourage those who aren’t up to the task to take retirement instead of grimly hanging on while their clerks do all the writing.

As an added advantage, for those concerned with inequality in America, this would break up a chummy system in which elites in academia trade favors with elites in the judiciary for the benefit of select elite graduates.

Legal Education | Permalink


I think the commentator fails to state the other benefits of clerks. No doubt, clerkships are a training ground for successor judges and justices. Having that insight certainly makes for better prepared judges or advocates.

Posted by: Tom N | Jan 8, 2018 10:44:52 AM

Thomas Geoghagen offered many years ago that a judge might sound like Cardozo in one opinion and Ken Kesey in the next depending on which clerk wrote the opinion. All those young lawyers madly quoting each other.

Posted by: Art Deco | Jan 9, 2018 10:52:02 AM