JURIST Special Guest Columnist Todd Peppers of Roanoke College, author of the forthcoming book Courtiers of the Marble Palace: The Rise and Influence of Supreme Court Law Clerks (Stanford University Press, 2006) says that although Justice Samuel Alito's recent hiring of former John Ashcroft aide and Time Warner VP Adam G. Ciongoli as a law clerk has raised a flap about the desirability of a Justice hiring a clerk with such solidly conservative credentials, we should consider whether the duties of Supreme Court law clerks in general really permit the exercise of inappropriate influence over the judicial process…

Last week the Supreme Court law clerk — not unlike groundhog Punxsutawney Phil – briefly emerged from the shadows of the Marble Palace and made a semi-annual appearance in the mainstream media. The specific cause of the most recent sighting of the elusive law clerk: Justice Samuel Alito’s hiring of Adam G. Ciongoli. As reported by the Washington Post and the New York Times, Ciongoli formerly clerked for Samuel Alito on the Third Circuit Court of Appeals before working for John Ashcroft in the United States Senate and the Department of Justice and then as a Vice President at Time Warner. The hiring of Ciongoli has been scrutinized and dissected as much as the shadow of the aforementioned Punxsutawney Phil, and the dire conclusions drawn by some legal observers and journalists show as much understanding of the role of the law clerk on the modern Supreme Court as weather predictions based on a groundhog’s shadow demonstrate one’s grasp of meteorology.

The flap over the hiring of Adam Ciongoli has nothing to do with fears about the legal competency of this Georgetown Law Center graduate. Nor does it have to do with his advanced age (37), health, or ethnicity. The flurry of articles commenting or criticizing his hiring has to do with perceptions about Mr. Ciongoli’s political ideology. In short, is it a good thing that a former Third Circuit law clerk who possesses impeccable conservative credentials — including being Attorney General John Ashcroft’s daily lunch companion and assisting in preparing Justice Alito for his confirmation hearings — will be clerking on the Supreme Court?

Law clerk ideology is not a new topic for Supreme Court observers. Concern over law clerk ideology was first sparked by an article written by then private attorney William Rehnquist in December of 1957. In a U.S. News and World Report article titled "Who Writes Decisions of the Supreme Court?," Rehnquist discussed his clerkship with the late Robert H. Jackson, summarized the basic duties performed by law clerks, and expressed his concern that substandard legal research as well as the "unconscious slanting" of cert. memoranda by legal law clerks might result in a justice's decision-making process being influenced. Rehnquist’s suggestion of improper influence ignited a firestorm of controversy, including stinging rebuttals from former Supreme Court law clerks Alexander Bickel and William D. Rogers (who found Rehnquist’s claims of law clerk influence to be absurd), and prompted Senator John C. Stennis of Mississippi to take to the Senate floor and argue that minimal professional competence requirements be established for these young, liberal, and incompetent legal assistants.

Although the controversy slowly died away, the proverbial genie was out of the bottle. Since 1957 legal commentators, journalists, and politicians have returned again and again to the topic of law clerk influence — often after reading similar unsubstantiated claims of law clerk misadventures in such books as Bob Woodward and Scott Armstrong’s The Brethren (1979) and Edward Lazarus’ Closed Chambers (1998). Americans love a good conspiracy theory, and tales of elderly, disinterested justices being manipulated by rabid young law clerks from elite Ivy League law schools are too juicy to ignore.

What the influence debate has lacked, however, is (1) a commonly understood definition of the word “influence,” (2) a thoughtful and thorough discussion of the institutional rules and norms surrounding the hiring and utilization of law clerks, (3) a delineation of the institutional conditions that must exist for the potential of law clerk influence, and (4) an examination of the personal motivations and preferences that must be present for the law clerks to want to seize the opportunity to wield influence. Undoubtedly, the United States Supreme Court law clerks corps represents the best and brightest legal minds that our top law schools can produce. At times in our history, the legal skills possessed by these law clerks have likely outstripped the intellectual firepower of a Fred Vinson or Joseph McKenna. And undoubtedly each and every man and woman who has clerked on the Supreme Court has possessed their own personal political ideology. Yet the fact that a law clerk may be a conservative, liberal, fascist, or communist is but one small piece of the influence puzzle.

Law clerks do not work in a vacuum. They are surrounded with rules and norms regarding their job duties and their behavior. The work assignments they receive are determined by the individual justice, and typically come with exacting instructions and guidelines. Law clerks work with equally bright peers, who often monitor, edit and critique their work product. And they are supervised by employers who possess not only their own substantial legal skills, but the institutional means and the personal motivations to craft intra- chamber rules designed to prevent law clerk misbehavior and defection.

Do law clerks affect judicial behavior? Of course they do. Even time a law clerk makes a grammatical change to a draft opinion, prepares a cert. pool memo, or engages in a debate with his or her justice, he or she has influenced judicial behavior in some minor way. The more critical question, however, revolves around the likelihood of inappropriate and pernicious influence. In my research on Supreme Court law clerks, I have interviewed or surveyed approximately 140 former Supreme Court law clerks. Moreover, I have reviewed the personal papers of such justices as Oliver Wendell Holmes, Jr., Felix Frankfurter, William O. Douglas, Earl Warren, Thurgood Marshall, and Harry Blackmun. I am not aware of any historical examples of justices who have permitted law clerks to decide which appeals to grant or deny or which litigants to find in favor of.

I have found, however, that every member of the Rehnquist Court — save Justice John Paul Stevens — asked their law clerks to prepare opinion drafts, and all justices on Rehnquist Court — with the exception of Justice William J. Brennan, Jr. — routinely relied upon law clerks to review cert. petitions and prepare cert. memoranda. Assuming that Justice Alito adopts this clerkship model, the important question to ask is whether these types of job duties permit the exercise of inappropriate influence and whether Supreme Court employment rules exist to limit or prevent such influence. If a justice tells a law clerk the correct outcome but does not provide the law clerk with the underlying reasoning (Justice Abe Fortas was occasionally guilty of such practices, often reaching an outcome and then telling his law clerks to “decorate” an opinion with legal precedent), then perhaps the law clerk begins to unduly encroach upon functions granted to the justices themselves. Then, and only then, is the ideology of
law clerks relevant. All law clerks.

Todd C. Peppers is an assistant professor in the Department of Public Affairs at Roanoke College in Salem, Virginia. He is the author of Courtiers of the Marble Palace: The Rise and Influence of Supreme Court Law Clerks (Stanford University Press, April 2006).
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