Law Clerks: A Jurisprudential Lens
George Washington Law Review Arguendo, Forthcoming
30 Pages Posted: 2 Mar 2020 Last revised: 8 Jun 2020
Date Written: February 17, 2020
American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial.
This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff?
The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices?
The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge.
This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.
Keywords: law clerks, Supreme Court, judicial power, judicial reasoning, the Presidency, executive power, metonymy, ghostwriting, legislative drafting, judicial history, New Criticism, the Death of the Author
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