In 1957, former-law clerk William Rehnquist wrote an exposé in US News about the role of clerks on the Supreme Court. Adam Liptak mentioned (here) the former-clerk’s article in relation to a recent study from the DePaul Law Review (here). The surge in interest over the case inspired US News to repost the article online and you can find it here.
Some of the tenets of the “liberal” point of view which commanded the sympathy of a majority of the clerks I knew were: extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, and great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren.
There is the possibility of the bias of the clerks affecting the Court’s certiorari work because of the volume factor described above. I cannot speak for any clerk other than myself in stating as a fact that unconscious bias did creep into his work. Looking back, I must admit that I was not guiltless on this score, and I greatly doubt if many of my fellow clerks were much less guiltless than I. And where such bias did have any effect, because of the political outlook of the group of clerks that I knew, its direction would be to the political “left.”
Rehnquist’s article doesn’t seem particularly provacative today, but at the time it was a heavily political question. The Court had decided Brown a few years earlier (while Rehnquist was a clerk) and the Warren Court was shifting into high gear. If fact, Rehnquist’s 1952 memo to Justice Jackson advocating a vote against Brown was the hot topic of both of his confirmation battles. He always attributed the views in the memo to the Justice himself, but I think a lot of people find that difficult to believe.
When I think of Supreme Court exposés my first thought is always Bob Woodward and Scott Armstrong’s The Brethren (1980). At the time, Justices were enraged by the apparent betrayal of hundreds of their former law clerks, but in 1985, following his death, Woodward revealed that Justice Potter Stewart had been his primary source.
(Hat tip to Emperical Legal Studies Blog)
(Update 12/14, 6:36p: I mistakenly mentioned that Adam Liptak is formerly of SCOTUSblog- Adam isn’t associated with SCOTUSblog. I was thinking about Adam Chandler, who wrote for SCOTUSblog some time ago and published an interesting article with Sloan recently.)