The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?
William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo, 62 Vand. L. Rev. 1749 (2009)
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No one, least of all the present authors, can answer these questions. Our main goal in this article is to present what we believe to be our key insight–that the future direction of the Court will be determined not only by the wishes of the President, Congress, the Justices themselves, opinion leaders, or even the American people, but also by the institutional structures that have grown up around the Court in support of its work. Those institutional structures have become increasingly polarized over the past two decades, strengthening partisan approaches to the law.
The particular institution on which we focus is the Supreme Court clerkship. The institution is important for at least two reasons. The first is spelled out in a recent empirical analysis examining “the extent to which both [each] Justice’s personal policy preferences and those of his or her law clerks exert an independent influence on the Justice’s votes.” The analysis found that “clerks’ ideological predilections exert an additional, and not insubstantial, influence on the Justices’ decisions on the merits” above and beyond the ideological orientation of each Justice.
