Assessing the Supreme Court at the Close of Its Current Term: New Justices, Public Critiques, and the Law Clerk Issue

With the conclusion of the Supreme Court's term, discussion has focused, as usual, on the spate of significant decisions that issue every June. This Term's blockbuster was Hamdan v. Rumsfeld, in which a bare majority of the Justices declared unconstitutional the Bush Administration's military tribunal system for dealing with detainees in the war on terror.

Recent decisions point to at least three significant developments on a Court adjusting to two new justices - Chief Justice John Roberts (who replaced William Rehnquist) and Justice Samuel Alito (who replaced Sandra Day O'Connor). In this column, I'll discuss each of these developments - and go on to consider some recent critiques of, and suggestions for, the current Court.

The Court's Internal Dynamics: Roberts and Alito Prove as Conservative as Expected

First, Roberts and Alito have thus far shown themselves to be every bit as conservative as their supporters had hoped, and their detractors feared. Neither cast a single vote that liberals might look to as a "chink in the armor" of their stalwart conservatism.

Second, the addition of Roberts and Alito to the Court did not materially shift the overall political balance of the Court, because Justice Anthony Kennedy fully assumed the role he had previously shared with now-retired Justice Sandra Day O'Connor, of checking a serious rightward tilt. Kennedy wields extraordinary power as the Court's swing vote: He voted in the majority in 12 of the Court's 17 cases decided by five-vote majorities, more than any other justice. In four of these cases -- including several of the most significant, such as Hamdan -- Kennedy spurned the conservatives and joined the Court's four liberal justices.

Third, notwithstanding the abundance of unanimous decisions this term - probably in part thanks to the Chief Justice's strong preference for unanimity, which I discussed in a prior column -- the Court remains riven by a profound ideological divide. And that divide continues to yield sharply polarized decisions in many of the major cases.

All told, this term might well be summarized, then, by an old adage: The more things change, the more they stay the same.

A Shift in The Public Discussion of the Court and Its Processes

But while the Court's internal dynamics did not change as much as some had expected this term, there does seem to be some shift afoot in the public discussion of the Court. In particular, there seems to be a growing concern about how the Justices go about fashioning the decisions that shape the law and hold the other branches of government in check.

On one front, politicians have loudly criticized the Court's decisions. On another, a growing cadre of scholars and commentators has also become increasingly critical of the Court's internal dynamics. Thus, far, the two groups of critics have not joined forces, but an alliance seems likely enough - and it would focus upon the Justices a level of public scrutiny they usually escape. Whether this prospect will result in a genuine threat to judicial independence, or a welcome dose of candor and accountability regarding judicial decisionmaking, remains to be seen.

Since the end of the tragic Terri Schiavo saga, there has been a fairly steady drumbeat of conservative politicians demonizing the judicial branch for thwarting their pro-life, anti-gay, pro-prayer, tough-on-crime agenda. And this chorus is sometime augmented, as it was this week, by Administration officials frustrated by the Court's unwillingness to endorse Bush's extreme view of executive power in the Administration's prosecution of the war on terror. Attorney General Alberto Gonzales went so far as to say that the Court's decision in Hamdan affirmatively undermined the nation's security - a harsh charge indeed to lodge against the High Court, and one not too far from an accusation of treason.

Politicians and the public also responded strongly - and, it seemed, overwhelmingly negatively -- to the Court's decision in Kelo v. New London. There, in rejecting a Takings Clause challenge, the Court put its imprimatur on the power of local government's to seize private property for a very broad range of purposes, including taking it for the benefit of private developers. Libertarians were angered by the aggressive use of government power; conservatives felt their "family values" agenda to be threatened by a ruling that meant longtime family homes could be bulldozed in favor of mall construction; liberals worried that the elderly and the poor and middle class could be ousted, relocated, and undercompensated.

These substantive critics of the Court - and the judicial branch as a whole - have proposed a variety of remedial measures. At the shrill end, some have called for more

The Court's critics from the right vary in their suggested remedies. Some would like to resurrect the idea of impeaching judging who don't subscribe to their view of constitutional interpretation, or to use the power of the purse to punish the courts for misbehaving. Though federal judges and Justices' salaries are guarantee by the Constitution to be fixed, even cost-of-living raises aren't guaranteed, nor are court budgets. Still, the spirit of the salary guarantee - that federal judges should be beholden to no one - is violated by monkeying with budgets or denying cost-of-living raises.

Others favor stripping the federal courts of jurisdiction relating to the issues they think the courts get wrong. And yet others call for greater "oversight" of the judiciary -- an amorphous concept that seems to include tracking the decisions of various judges in sensitive areas of law, and calling attention to deviations from the right's view of proper judicial decision-making. Here, too, however, the spirit of a constitutional guarantee could be compromised by such measures - federal judges' guarantee of life tenure, like their fixed-salary guarantee, is meant to ensure independence, and these measures seem to augur the kind of pressure whose goal is to compromise that very independence. To abide by the Constitution, critics ought to focus more on appointees, and less on current federal judges.

Although carping about judges is certainly nothing new, at least some members of the judicial branch do see the new belligerency as a real threat to the concept of a judiciary insulated from the pressure of political accountability. Justice O'Connor, in particular, has used the bully pulpit enjoyed by a retired justice to sound the alarm and excoriate those calling for greater oversight (in one way or another) of the judicial branch.

Is Too Much of the Justices' Work Delegated to Their Law Clerks?

On a parallel track, a growing number of Court watchers have started to criticize the justices for the way they go about their work - and, in particular, the degree to which they have delegated the Court's work to a bureaucracy of young law clerks.

The debate on this subject heated up last year when Pulitzer-Prize-winning historian David Garrow accused Justice Harry Blackmun of being the most irresponsible justice ever because, according to Garrow's analysis of Blackmun's papers, Blackmun delegated a very substantial part of his opinion-writing to his clerks. (Full disclosure: I myself was once one of Blackmun's clerks.)

Meanwhile, two new political science books have thrown gas on the fire by arguing that Blackmun was by no means aberrational in his approach. Instead, they conclude -- based on extensive empirical study -- that almost all the justices relegate opinion drafting to their clerks. Moreover, these books claim, a fair number of the justices are fairly light editors of the drafts the clerks produce.

Critics ought to be remember, though, that even if this is true to some extent, the clerks are usually drafting according to the Justices' specific instructions, and subsequent to their deliberations with colleagues - and thus, they are still carrying out the Justices' visions. By and large, clerks are like apprentice architects filling in the boss's blueprint.

Still, it was not always thus. Decades ago, Justice Louis Brandeis famously remarked that the justices earned their high reputation in significant part because they were the only officials in Washington who genuinely did basically all of their own work. Then, it seems, Justices were both architects and apprentices.

A number of prominent commentators have started pining for the days when Brandeis's observation was still accurate. Reviewing the two books on law clerks, Judge Richard Posner, perhaps the smartest judge in the country, argues that the growth of the clerk bureaucracy has done nothing to advance the quality of Supreme Court opinions or decision-making; in fact, he suggests, it's just the opposite, and quality has diminished as clerk involvement has grown. After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed.

It's not as shocking as it might sound, then, that two other well-respected Court followers, Stuart Taylor and Ben Wittes, have gone so far as to propose that the whole institution of Supreme Court law clerks - the hotshot recent law grades for whom clerking is a ticket to the legal elite - be abolished. In their view, the justices of the current era have unforgivably abdicated their most important responsibility - namely, crafting the specifics of the arguments that support and justify the nation's most important legal decisions.

In reality, the whole system of law clerking is far too entrenched for Taylor's and Wittes's suggestion to gain much traction. And I doubt that such a wholesale approach would be a good idea anyway. Law clerks, when deployed as they ought to be, perform all kinds of salutary functions, including bringing energy and new ideas into an otherwise exceedingly insular institution.

But as is true of all Swiftian "modest proposals," the Taylor/Wittes idea of doing away with law clerks entirely does raise important questions about the Court's functioning. How engaged are the individual justices in the crafting of the particular language used in their opinions? And if they're not very engaged at all, how much sense does it make for the lower courts to closely parse their every word choice? Does the clerk bureaucracy allow justices to stay on the Court long after their prime has passed? Has the proliferation of law clerks improved the Court's work and, if not, why not? Are there ways the use of law clerks could be reformed, but not abolished?

The Need for Constructive Criticism of the Court

In the end, it is easy to imagine a convergence of the substantive and procedural critiques of the Court's work. And it is also easy to imagine the combination sinking into unfortunate caricature. I can hear the talking heads now -- deriding the Justices for making up the law from whole cloth as they go along, while sending off their law clerks to do all the nitty-gritty work of reasoning, justification, and grappling with precedent.

But to recognize that some criticisms of the Court will not be accurate and that some reform proposals will be either ill-advised, purely partisan in design, or unworkable, is not to say that all criticism of the Court - even harsh criticism - is bad for either the judiciary or for the country.

In the main, these are not mean-spirited inquiries or inquiries aimed at tearing down the essential independence of the judiciary. They are inquiries aimed at improving the Court's decisionmaking process, which is the underlying justification for the role it plays in our democratic system. The tradition of justifying decisions through written opinions that reference and honor past precedents is what distinguishes our courts from our Congress in the first place.

The same is often true of substantive criticisms. To accuse judges of sometimes overstepping their judicial authority is not treason against the judiciary (unless, perhaps, one goes as far as Gonzales, to the point of accusing the judiciary itself of veritable treason). Instead, it is fidelity to our larger scheme of constitutional governance. And to call attention to questionable judicial decisions, or to seek to introduce some transparency into the decisionmaking of life-tenured public servants, does not necessarily threaten judicial independence.

The question, of course, is how to draw the line between constructive and destructive criticism. As the Court starts what promises to be another controversial term next fall, we will have plenty of opportunity to engage in the search for the place for that all-important line.