The Mystery and the Mastery of the Judicial Power
26 Pages Posted: 23 Apr 2013
Date Written: 1994
What do law clerks do at the Supreme Court? One day this question took me entirely by surprise. Not because of its substance: I have repeatedly answered this question ever since Justice Clarence Thomas invited me to serve as his clerk for October Term 1992. As with so much else in law, context had triumphed over content. While teaching my first-year legislation class at the University of Minnesota, I asked a student to resolve the apparent tension between Justice Antonin Scalia's willingness to consult The Federalist Papers as the "legislative history" of the United States Constitution and Justice Scalia's outspoken opposition to the use of ordinary legislative history in statutory interpretation. Perhaps because Justice Scalia simply puts greater trust in James Madison, Alexander Hamilton, and John Jay than he does in the youthful legislative assistants who draft most of the committee reports on Capitol Hill? The student struck back, and furiously. What, he asked, of the reliance the entire legal profession places on Supreme Court opinions entrusted to similarly youthful law clerks? If legislative and judicial documents are merely work product or original works of authorship produced by the youthful, anonymous, and unaccountable agents of House members, Senators, and Supreme Court Justices, can anyone trust what passes for law around here?
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