Empirical Evidence of Clerk Partisanship and Influence on SCOTUS Decision Making Presented

In 1957, late Chief Justice William Rehnquist first suggested that law clerks might be unduly influencing their Justices. Now Todd Peppers and Christopher Zorn have measured clerk partisanship empirically in Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DePaul Law Review 401 (2008).  The authors article presents the first direct evidence that Justices choose clerks with an eye to their ideological convictions and their findings strongly suggest that the partisan composition of a Justice’s clerks can and does influence that Justice’s decision making. Peppers and Zorn conclude

Our findings suggest that social scientists and other scholars should no longer quickly dismiss the role of law clerks in judicial decision making. However, this result signifies a beginning, rather than an end, of inquiry into the topic. To date, the widespread public discussion of law clerk influence has lacked a careful analysis of the different types of influence and the multiple paths through which that influence can be exercised. Simultaneously, that dialogue has suffered from Court observers’ failure to appreciate that law clerks are not autonomous political actors. From the first day of the clerkship, the law clerk is bound by formal and informal institutional rules and norms imposed by the Supreme Court, as well as the individual Justices. Observers must clearly understand the interplay of those rules, norms, and preferences before reaching a final verdict on the extent or desirability of clerk influence.

Hat tip to Carolyn Elefant, Legal Blog Watch. [JH]