Wednesday, September 8, 2010


Is the Supreme Court becoming increasingly politicized and polarized, just like the rest of society? Click on the charts, which are from the NY Times, below.

What you see on the left side is a graph that tells us that when U.S. Supreme Court Justices make clerk appointment they have traditionally been done according to party affiliation (in over simplified terms, Supreme Court clerks are glorified interns).

As you can see from the 1975-1980 chart on the left, conservative members of the court overwhelmingly hired clerks who served Federal judges appointed by Republican presidents. Similarly, but not to the same extent, the liberal half of the court tended to hire clerks who had worked for Federal judges appointed by Democrats.

This isn't necessarily ground-breaking news. But this is ...

If we look at the years between 2005 and 2010 we see a much stronger partisan pattern emerging, with two conservative Supreme Court justices staying entirely away from hiring "liberal" interns. In fact Justice Clarence Thomas has not hired a liberal clerk among the 84 interns he's selected, saying, “I won’t hire clerks who have profound disagreements with me ... It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

So much for wanting to hear both sides of an argument.

What this suggests is that, in an increasingly polarized political environment, party affiliation matters when it comes to picking Supreme Court interns (but especially for the more conservative wing of the bench). This is an extremely important development in America's legal system because Supreme Court law clerks routinely:

... do much of [the justice's] work and influence their thinking. They make recommendations about which cases the court should hear, help prepare the justices for oral arguments, discuss the cases with them and draft major portions of the opinions and dissents.

Moreover, with the retirement of Justice John Paul Stevens, "it appears that none of the justices routinely write first drafts of their opinions" because they prefer to "supervise and revise drafts produced by their clerks." According to one scholar who studies the Supreme Court, this means that:

We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices.

What this means is that a young conservative legal clerk, who's angling for a lucrative job in the private sector, might be inclined to select cases or write opinions that advance the position of corporate America, and their lobbyists, by signing off on the use of corporate money as a form of "speech" in political campaigns.

Not only does this advance the conservative cause, but having a hand crafting legal opinions that give corporate America a larger voice in our political system is quite a resume builder.

At the end of the day we want to keep in mind that our judicial system - but especially the Supreme Court - is supposed to be the one branch of government that is both contemplative and above politics. It's also supposed to be the branch of government where the wisest and most experienced legal minds interpret our Constitution, and the law.

If there's anything to the NY Times' story, this may no longer be the case. And this means trouble for democracy in America.

- Mark

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