Supreme Court Clerks

[Nienna]

I thought this was an interesting point of view. I didn't know that the justices didn't write the opinions themselves.


Rule of the Clerks
Behind the Scenes at the Supreme Court
July 8, 2005

Note: This commentary was delivered by Prison Fellowship President Mark Earley.

Washington this week looks like the base camps of two attacking armies, as the left and right prepare for the battle over confirming a successor to Justice Sandra Day O'Connor. As columnist Jonah Goldberg puts it, "Conservatives and liberals are quietly loading up on drinking water, D batteries, and extra ammo, in preparation for the coming battle over judges."

Goldberg exaggerates only a little. One of the most important legacies any president leaves is his court appointments. But what many activists don't think about are the people who, in many cases, actually write the opinions: the clerks.

Two new books provide an important glimpse into the worldview and influence of these young people, often fresh out of law school, who, despite being neither elected nor confirmed, wield enormous influence.

Becoming Justice Blackmun is a biography of the late Harry Blackmun, the author of Roe v. Wade. Written by Linda Greenhouse, the New York Times's Supreme Court correspondent, the book tells the story of how Blackmun went from Nixon appointee to liberal icon.

Roe, of course, is at the heart of this iconic status which makes what Greenhouse and other writers like historian David Garrow tell us especially troubling. Both agree that Blackmun's clerks not only wrote "key parts" of Roe, but also "[suggested] legal strategies" and "[injected] political calculations into the court's work."

The original draft of Roe covered only abortions in the first trimester. The final version was the product of a "flurry of clerk-drafted memos" that doubled the "extent of Roe's constitutional reach." And it was a clerk, not a judge, who was behind the subsequent shift to the language of "choice."

Given the influence wielded by clerks, it is important to understand what they are being taught, especially since they are, at most, two to three years out of law school. In The People v. Harvard Law by Andrew Peyton Thomas, we learn that what passes for "discourse" at Harvard is between the "left," such as Alan Dershowitz, and the "far left," people like the late Mary Jo Frug.

Frug was part of movement known as "Critical Legal Studies" (CLS). It seeks to deconstruct the law and the structures it creates because, in its estimation, the law is not about truth but, rather, power—specifically, the power of "sexist white males."

If this sound s familiar, it should: It's the legal expression of postmodernism, which, of course, rejects transcendent and universal truth. Since there are few conservatives on the Harvard faculty, the real "debate" is the "far left" silencing its critics on the left. The results leave Thomas, a Harvard Law graduate, wondering "whether America's leading law school would reclaim its tradition of celebrating dissent, or continue to thwart the very constitutional liberties that once gave the school life and purpose."

If "America's leading law school" has no use for freedom of speech, there are plenty of other rights it does care about: abortion and same-sex "marriage," to name but two. A generation of elite young lawyers is being taught that it's these, and not freedom of speech or religion, that are central to the idea of "liberty." A select few go on to become clerks and tend to elevate this notion to a constitutional principle—a fact that the people buying extra batteries and preparing for battle this week can't afford to ignore.

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Copyright (c) 2005 Prison Fellowship

 

[gaffer]

They all have writers working for them. Justices, senators, represenatives, presidents. None of these high ranking, high paid, ultra educated types write their own material. They have whole staffs of people that put it all together to make them look intellectual.

Go to a law office and see if the lawyer does anything at all, he's got a staff of legal aids who do the actual work.

 

[Abbey Normal]

Yes, law schools are overwhelmingly liberal, and law clerks right out of law school often help write briefs and opinions. But law clerks generally commence research knowing what outcome their boss (judge or not) is looking for. While this is particularly true in a law firm, where advocacy is key, it happens with judges as well.

I do wonder why some judges deemed conservative seem to turn liberal once their tushes touch the bench, but I doubt that it is because they are influenced by their clerks.

 

[William Joyce]

And what a plum clerkship it is... it's the highest prestige.

Abbey is right re: liberal law schools. I went to one of the bigger offenders. One law school has a professor who once ran with the Weather Underground or some terror outfit like that.

Oh, here she is:

http://www.law.northwestern.edu/faculty/clinic/dohrn/dohrn.html

Funny, Northwestern doesn't mention this:

http://dir.salon.com/news/col/horo/2001/09/17/ayers/index.html

 

[Abbey Normal]

And what a plum clerkship it is... it's the highest prestige.

Abbey is right re: liberal law schools. I went to one of the bigger offenders. One law school has a professor who once ran with the Weather Underground or some terror outfit like that.

Oh, here she is:

http://www.law.northwestern.edu/faculty/clinic/dohrn/dohrn.html

Funny, Northwestern doesn't mention this:

http://dir.salon.com/news/col/horo/2001/09/17/ayers/index.html

Geez, so sad and so true. My Constitutional Law prof was concurrently General Counsel for, and later President of, our (major) city's branch of the ACLU. He has been involved at a high level in all sort of liberal causes, for just one example, removing the Ten Commandments from public venues.

Yes, this is the man who taught Con Law to my then-impressionable mind. It is a shame to me that such biased people are given free rein to indoctrinate students who, even if they can apply critical legal reasoning their first year, are too afraid to disagree for fear of a poor grade in a key first-year course.

With law schools churning out young lawyers educated in this way, is it any wonder that our courts are filled with liberal, activist judges?

 

[William Joyce]

It is a shame to me that such biased people are given free rein to indoctrinate students who, even if they can apply critical legal reasoning their first year, are too afraid to disagree for fear of a poor grade in a key first-year course.

With law schools churning out young lawyers educated in this way, is it any wonder that our courts are filled with liberal, activist judges?

My communist Con Law prof, to his credit, was very bright and liked to play devil's advocate --- even on race cases. Once he even questioned a Holy Writ case called Kramer v. Sullivan on racially exclusive housing covenants (or tried to get the class to see the problem with the case). That was pretty frickin' brave, gotta say.

Still, the libs dominate.

Good thing about most law schools is, the exams are based on the law, and they're anonymous.