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January 2, 2018

A BETTER IDEA: GET RID OF LAW CLERKS ENTIRELY. Chief Justice Roberts says courts will examine protections against sexual harassment.

No, seriously. Look, I was a law clerk and loved it and am still close to my judge. But the whole institution is inherently chummy and elitist, with “feeder” professors and “feeder” judges and loops of mutual back-scratching, and there’s not much evidence that judicial decisionmaking, or decision-writing, is better now than it was two centuries ago. If judges (and justices) had to do their own work, opinions would be shorter and clearer. And if they need assistance, let them use permanent staff attorneys who don’t depend on a single judge (or justice) for their careers.

Yeah, it’ll cost some top law school grads an additional credential, and reduce the leverage of some elite law professors, and reduce the pedestalization of federal judges, but that’s not a bug, it’s a feature.

Nor am I alone in this view, as this 2006 piece from Stuart Taylor, Jr. and Benjamin Wittes indicates. Excerpt:

Many lawmakers are keen to push back against a self-regarding Supreme Court, but all of the obvious levers at their disposal involve serious assaults on judicial independence—a cure that’s worse than the disease of judicial unaccountability. The Senate has already politicized the confirmation process beyond redemption, and attacking the federal courts’ jurisdiction, impeaching judges, and squeezing judicial budgets are all bludgeons that legislators have historically avoided, and for good reason.

So what’s an exasperated Congress to do? We have a modest proposal: let’s fire their clerks.

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.

Read the whole thing.