Barone’s Souteronomy

Michael Barone writes in response to Paul’s post below:

I recall reading that in his first years at the Supreme Court Souter delegated the selection of his clerks to Professor Laurence Tribe of Harvard Law School. With predictable results: liberal clerks, liberal opinions. I have not taken the time to google this, but I think there were long pieces written on the subject.
As a former law clerk to a federal appeals court judge (the late Wade H. McCree, Jr., of the Sixth Circuit), I have long felt that the Supreme Court justices have too many clerks. Some time ago I took a look at the statistics in the annual Harvard Law Review issue on the Supreme Court, and found that each time there was an increase in the number of Supreme Court law clerks there was also a step increase in the number of separate concurring and dissenting opinions. In the 1920s, when Chief Justice Taft encouraged unanimity and when justices had one or zero law clerks, there were few dissenting opinions and very few separate concurrences.
My radical proposal, which I am sure will never be adopted, is: reduce the number of Supreme Court law clerks to one or two. My expected result, were this ever to be done: many fewer separate opinions and clearer, more straightforward opinions that intelligent citizens could easily read in full. Try reading the opinions in most important cases today, and you need to set aside several hours and start by making a flow chart of which justices agreed with which sections of the majority (or plurality) opinion and with which sections of the separate dissents or concurring opinions. Supreme Court jurisprudence has become unfollowable even for intelligent, interested citizens. Almost no one goes through this exercise except law professors, law review editors and members of the bar who are paid upward of $500 an hour for doing so.
As for Justice Roberts, he seems clearly to be a man who will not be moved away from his convictions by his clerks. This, even though his opinions and the accounts of him by those who have worked with him indicate that he pays respectful attention to those who disagree with him. In reading his opinions, I have been struck by how carefully and fairly he presents arguments for the positions with which he disagrees. This is not a guy who is going to come out the way I would like in every case. But it does seem to be a guy who will come out the way he would like in every case — and is not going to be buffaloed by Professor Tribe’s hand-picked law clerks any more than he is buffaloed by Professor Tribe.


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