Abstract: the influence of clerks on opinions

I  will be studying the amount of influence Supreme Court clerks have on the opinions of the justices they serve under. I hope to determine how much of an opinion is written by the justice and how much of it is the clerk’s own writing. Clerks are a significant part of the judicial system. They are found at nearly every level, serving under judges in order to give them more time to hear cases, rather than writing and filing smaller items 0f paperwork. However, even this smaller work can be legally complicated, such as drafting opinions that the court will issue or successfully comprehending a legal document being dictated by a judge, so many clerks, especially in higher courts, are either completing or have completed law school. As a result, they have their own thoughts on how rulings might be made. I mentioned earlier that they might be called upon to draft opinions. In the Supreme Court, many justices are old enough or frustrated enough that there are rumors that their clerks may not only draft their opinions, they may entirely write them. The possibility of shadow justices serving without consent of the Senate and without appointment by the president under aging, inexperienced, or disinterested justices is very interesting to me. There is a great deal of controversy surrounding bureaucratic discretion in the executive branch when it comes to enforcement of federal laws, but it is often taken for granted the judicial branch is run entirely by trusted and validated judges. If I can find a connection between opinions supposedly written by the most intellectual judges in the country and works written by their clerks, I could then conclude that the justice department too had its fair share of bureaucratic decision makers. The research I am proposing will, for reasons of time, only cover one or two clerks under an especially disengaged justice, such as Justice Thurgood Marshall during his later years of disinterest in the Court, or Justice Powell in 1971 during the period when he was too new to the bench to feel comfortable writing his own opinions in full.

I want to conduct this research by identifying a specific clerk under a single justice and analyzing similarities between their own work outside of clerking and opinions written while they served as a clerk, as well as opinions written by the same justice while they did not serve as a clerk. There are software packages such as QDA miner lite and others that can check two papers for similar phrasing, repeated words or phrases, and similar sentence structure that I can use to compare clerks’ works from outside of the Supreme Court and opinions they are likely to have had a chance to influence.

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