My research focuses on what I call the “clerkship institution,” namely, the rules and norms that surround the hiring and utilization of Supreme Court law clerks. Specifically, I draw upon principal-agent theory to generate and test hypotheses as to the evolution of the clerkship institution over the last 120 years. While I’m interested in the question of law clerk influence, I submit that the influence debate cannot be resolved until we first have a comprehensive picture of the rules and norms that surround and confine the law clerk as well as an appreciation of how these rules and norms have evolved.
If I were to summarize in one word what United States Supreme Court law clerks are like as research subjects, it would be “challenging.” Books like The Brethren and Closed Chambers have not helped pull the reluctant law clerk out of the shadows of the Marble Palace.
first glance, the data regarding United States Supreme Court law clerks
appears plentiful. Law reviews and legal history journals are replete
with articles written by former law clerks about their experiences on
the Supreme Court. For example, the death of a former justice
inevitably brings a deluge of testimonials from law clerks in which the
former assistants fondly recall their year at the Supreme Court and
predict that their justice will be remembered in the same breath as
Marshall, Holmes, and Brandeis.
From the perspective of a social scientist who is studying the clerkship institution, however, such articles are not rich in useful data. Any information provided about the justices’ hiring and utilization practices is limited and suspect. To begin with, since the late 1980’s the modern law clerk has been bound by a written code of conduct that survives the end of the clerkship. While earlier generations of law clerks received informal lectures from their justices as to their fiduciary duties, today’s law clerks must sign an ethical code of conduct that includes specific rules regarding the ongoing duty of confidentiality as well as warnings of termination if such ethical canons are breached. Therefore even former law clerks are chilled from revealing too much information about the Supreme Court. Moreover, even the most candid article provides only limited data because the clerk’s observations about the clerkship institution are time-bound and limited to a particular chambers.
From the beginning, I realized that any project that provided valuable insights into the evolution of the clerkship institution would require a researcher to collect original data from law clerks from different chambers and across the 120 year span of the clerkship institution. In other words, a social scientist would need a representative sample of law clerks who would talk freely and honestly about their clerkship experiences. Had I realized how daunting it would be to collect this representative sample, I have no doubt that I would never have embarked on my hunt for the elusive law clerk.
I knew I could not get a true random sample of law clerks to interview because I could not randomly draw from the entire population of former law clerks. For example, all law clerks from the first fifty years of the clerkship institution (1882 to 1932) save one (former Stone law clerk Wilbur Friedman) were deceased, and only a handful had written accounts of the clerkships. And I had serious doubts whether recent members of the clerkship corps would be willing to chat with me. Nevertheless, I obtained a list of former law clerks from the Supreme Court Public Information Office. The list included the name of the law clerk, the justice for whom the individual clerked, the law school attended, and, for later clerks, any lower court clerkships. Using Martindale-Hubbell, law school alumni databases, and electronic search engines, I spent hundreds and hundreds of hours collecting contact information and professional background data on former law clerks. For former law clerks who were actively practicing law, I easily found contact information; what provided most challenging was finding mailing addresses for law clerks who had retired from teaching or the practice of law. Ultimately, I had some success contacting law school alumni offices and asking for assistance in contacting their graduates. While some law schools (like Harvard) proved to be very helpful, others (which will remain nameless) refused to assist me.
Once I collected approximately 750 mailing addresses, I sent a simple, one page survey to the former clerks. The survey did not ask about the clerkship itself, but instead asked for background information (legal education, law review experience, subsequent professional accomplishments) and political party affiliation at the time of the clerkship. The last question was asked in order to come up with a measure of the clerk’s personal political ideology at the time of the clerkship; while political party affiliation is a crude measure of political ideology, I felt that a more sophisticated question would drive down response rates. I asked this last question not only to generate descriptive statistics regarding law clerk ideology, but in hopes of some day generating and testing hypotheses of judicial behavior that use both justice and law clerk ideology as independent variables.
My response rate was much higher than I expected (approximately 40%), a response rate that rose slightly with a second wave of initial surveys. From this pool of responses, I selected a representative sample of law clerks, wrote them, and requested a telephonic interview. In my letter, I carefully explained the exact nature of my research and assured the recipient that my interview questions did not touch upon confidential issues, such as individual cases or a justice’s attitudes toward constitutional issues. Those individuals who did not respond were sent a second letter that contained the written interview questions; I hoped that those former clerks who were hesitant to talk with me by phone might be willing to provide information in the more “controlled” environment of written questions. Ultimately, I interviewed (either in person or by telephone) approximately 50 former law clerks and received responses to written interview questions from approximately 90 former clerks. These numbers do not include the approximately 500 former clerks who responded to my original, one page survey.
Despite my best efforts, the data collected is biased. Simply put, law clerks of deceased justices were more willing to provide detailed information as to their former employer’s hiring and utilization practices than law clerks whose justices still sit on the bench. Of those former clerks of deceased justices, I had much better luck at getting solid response rate from the clerks of the longer-serving justices (Hugo Black, William J. Brennan, Jr., William O. Douglas, Stanley Reed) than those justices whose tenures were short (Abe Fortas, Arthur Goldberg, Charles Whittaker). This is hardly surprising – Hugo Black hired more law clerks than Burton, Fortas, Goldberg, Minton, and Whittaker combined. Thus, for some justices I was forced to generalize about their clerkship practices from the interview of only 1-2 law clerks. My findings about the clerkship practices of the Rehnquist Court justices are even more tentative; only a handful of former clerks consented to interviews, and the few who did speak with me often placed substantial limits on both the scope and use of the interview.
My data collection efforts were supplemented by visits to the Library of Congress and Harvard Law School, where I reviewed the personal papers of such justices as Morrison Waite, Horace Gray, Oliver Wendell Holmes, Jr., William Howard Taft, Hugo Black, William O. Douglas, Felix Frankfurter, Robert H. Jackson, Earl Warren, Thurgood Marshall, and Harry Blackmun. My goal in reviewing the justices’ papers: to find data on the justices’ hiring and utilization practices. For this particular project, I was less interested in individual examples of law clerk duties or influence (for example, looking in a specific case file and tracing the flow of paper and the exchange of ideas between the justice and law clerk in the opinion-writing process) than established, intra-chamber rules regarding law clerk duties.
In short, law clerks are tricky research subjects. While I understand why former clerks want to err on the side of caution when it comes to the duty of confidentiality, some clerks cite this duty as a means of quickly saying no to a pesky researcher. Thus, it is difficult to determine what percentage of former law clerks truly believe that their ethical duties to their justice survive the clerkship as well as the death of the former employer. Although I will be publishing a book on Supreme Court law clerks and the clerkship institution in April, I consider my research on law clerks far from finished; I hope that the book will result in additional interviews with law clerks and, dare I dream, Supreme Court justices.
I eagerly await comments and insights by the other participants of this week’s discussion on their time-tested methodological techniques of studying the elusive law clerk!