The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology on the U.S. Supreme Court
Carolyn Shapiro, 37 Fla. St. U. L. Rev. 101 (2009)
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This essay argues that the particular interest in Supreme Court law clerks reveals a fault line in the Court’s legitimacy. The Court’s importance as a political institution, the significant discretion that the justices exercise over both what cases they hear and how they decide them, and the intense secrecy with which they shroud themselves, together contribute to this fault line, and the fascination with and condemnation of the justices’ use of their law clerks is largely a product of it. More specifically, this essay argues that the controversies about law clerks are really proxy wars for more important concerns. The first concern focuses on how the Court decides what cases it will hear, and arises from the black box nature of the Court’s cert process. The second, and both more important and more difficult, concern stems from the unresolved tension between judicial independence and democratic accountability and from ambivalence about the role of ideology in judging. The essay concludes that a more forthright examination of both of these concerns would benefit the Court, the bar, and the country. This essay is a first attempt to do just that.
