Law Clerk Influence on Supreme Court Decision Making

Abstract:     
For more than a half-century, legal scholars and commentators have questioned whether Supreme Court clerks wield excessive power over the operations and decisions of the U.S. Supreme Court. Yet to date there have been no attempts to determine systematically if, how, and how much clerks can influence the Court's decision making. Here we begin an effort to do so, focusing first on the most central - and least susceptible to clerk influence - locus of the Court's decision making, the votes of the justices on the merits. Using original data collected on the political partisanship of 532 former law clerks, we assess whether and to what extent law clerk ideology has an independent effect on how Supreme Court justices vote on the merits of a case. Our findings indicate that, even after controlling for justices' own policy preferences, the ideological propensities of their clerks exerts an independent influence on the justices' voting behavior; we estimate the magnitude of that effect to be roughly one-third that of the ideology of the justices themselves. While this finding alone does not suggest that law clerks are inappropriately wielding influence, it suggests that, at a minimum, the justices rely heavily upon their clerks as sounding boards and advisers in deciding how to vote on the merits of cases.

Keywords: Supreme Court, clerks, judicial decision making, voting

Working Paper Series