So who writes the SC opinions

First off, I’d like to thank the Charles Center and the Monroe Program for this amazing opportunity, as well as my advisor Professor Sasser and my family for the support and guidance they gave me throughout the process.

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Ready to Collect

It’s takeByrnesn me a wBrudneyDoylehile, but I’ve finally pulled together the necessary materials to conduct my study. As an essential overview, I’ve decided to test the influence of Supreme Court clerks on the opinions of their justices by direct analysis of authorship. In my initial research I stumbled across a study conducted by Federick Mosteller and David L. Wallace in 1964 titled Inference and Disputed Authorship. It’s goal was to apply a then relatively unused form of statistical probability analysis called Bayesian Theory. They applied the theory to a set of 12 papers from the Federalist Papers, whose authorship had been disputed. Some claim that James Madison had written all 12, others that he and Alexander Hamilton had split them. Wallace and Mosteller focused on the theory that the frequency of certain Rutledge“function words” (i.e. is, that, in, for, of) could constitute an authorial fingerprint, that, when analyzed, could determine authorship. This experiment took them several years to develop and years more to conduct, but with much less advanced statistics, a smaller sample size, and faster technology, I hope to conduct what is essentially a small scale version of their experiment.

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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.

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