The Nine [85]
The Supreme Court’s brief opinion was released on Monday, December 4. It was delivered not by a specific justice but rather per curiam, “by the court,” a designation that the Court generally used for minor and uncontroversial opinions. If this had been the Court’s only decision in the 2000 presidential contest, the justices’ role would be remembered as a modest footnote in the story. As the justices themselves recognized, they never should have involved themselves in the election, but having done so, at least they did no significant harm.
The more important news of December 4 took place in Tallahassee, where a local judge ruled in the Gore team’s “contest.” He rejected any further recounts and upheld Harris’s certification of Bush’s victory. That decision now headed to the Florida Supreme Court—and, ultimately, back to the United States Supreme Court.
12
OVER THE BRINK
No case engaged the justices’ law clerks more than the election cases in 2000. Many of them spent the crucial period in December in a frenzy of outrage about the tactics and merits of one party or the other in the controversy. The question, though, is whether the clerks made any real difference in the outcome.
The first person to promote the image of scheming and powerful law clerks was William Rehnquist himself. Forty-three years earlier, shortly after his own clerkship for Justice Robert H. Jackson, Rehnquist wrote an article for U.S. News & World Report asserting that “liberal” law clerks were “slanting” the work of the Court to the left. Rehnquist said that a majority of clerks showed “extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of state power, [and] great sympathy toward any government regulation of business.” For many years, Rehnquist’s picture of the Court as a redoubt of liberal clerks remained the dominant image.
Then in 1998, Edward Lazarus, a former clerk for Harry Blackmun, turned that image around. He saw many clerks operating in support of a conservative agenda. In his book Closed Chambers, Lazarus argued that these right-wing clerks “self-consciously styled the Cabal,” wielded “very significant power…for partisan ends.” Reared in Federalist Society cells in law schools, they collaborated for ideological ends in the Court’s cafeteria and the cheap Chinese restaurants of Capitol Hill.
The truth about Supreme Court law clerks seems more mundane. Generally in their late twenties, they are top graduates of leading law schools who have first spent a year working as clerks for lower court judges. (The judges who regularly place their clerks on the high court are known as “feeders.”) The clerks review cert petitions, helping to winnow the eight thousand or so cases to the eighty or so accepted for review. They discuss the cases with their justices to prepare for oral argument, and, most notably, they write first drafts of opinions. The details of the procedure vary by justice. Thomas appoints a head clerk; O’Connor required clerks to prepare a “bench memo” summarizing the arguments in each case; Kennedy has a classroom-style prep session with his clerks before most oral arguments; and Scalia ignores his clerks for long periods of time. Stevens alone employs a totally different system. He is the only justice who does not participate in the “cert pool,” which has one law clerk from the other eight chambers prepare