Open Chambers: High Court Associates and Supreme Court Clerks Compared

Abstract

They have been variously described as ‘junior justices’, ‘para-judges’, ‘puppeteers’, ‘courtiers’, ‘ghost-writers’, ‘knuckleheads’ and ‘little beasts’. In a recent study of the role of law clerks in the United States Supreme Court, political scientists Artemus Ward and David L Weiden settle on a new metaphor. In Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, the authors borrow from Johann Wolfgang von Goethe’s famous poem to describe the transformation of the institution of the law clerk over the course of a century, from benign pupilage to ‘a permanent bureaucracy of influential legal decision-makers’.1 The rise of the institution has in turn transformed the Court itself.

Nonetheless, despite the extravagant metaphor, the authors do not set out to provide a new exposé on the internal politics of the Supreme Court or to unveil the clerks (or their justices) as errant magicians.2 Unlike Bob Woodward and Scott Armstrong’s The Brethren3 and Edward Lazarus’ Closed Chambers, Sorcerers’ Apprentices is not pitched to the public’s right to know (or its desirefor scandal). Instead, it is presented as a more scholarly contribution to the debates — sparked especially by those books — about the influence of Supreme Court clerks on US law. Employing the methodology of ‘new institutionalism’, they describe an institution transformed at several historical junctures — sometimes predictably, often reactively — to acquire its current incarnation.

This transformation has opened up three main opportunities for clerk influence— in reviewing petitions for certiorari to the Supreme Court, in assisting justices in the decision-making process, and in drafting opinions. Ward and Weiden also examine the background process of selecting law clerks, the increasing competition to secure the clerkship, and a rough profile of the young law graduates who are now entrusted with this role. In the course of this review essay, these claims are described, assessed and finally contrasted with the institution of the judge’s associate in the High Court of Australia.