Welcome to Supreme Court Brief. Justice Anthony Kennedy's retirement provides a boon in clerk power to the sitting justices who inherit the clerks he had hired for the October 2018 term. Is the record number of law clerks in the new term good or bad? Two political scientists who have written about the court's clerks offer some thoughts. Plus: A new website devoted to empirical research into the court's oral arguments shines light on which justices are the most polite. Can you guess who they are? And we give an update on the court's appointment of a new special master in the ongoing Florida v. Georgia water battle. Thanks for reading, and we welcome comments at [email protected] and [email protected].

|

Do Too Many Clerks Spoil the Court?

We recently reported that because of a quirk of timing, the Supreme Court may be fielding a record number of law clerks this upcoming term. The main reason: Justice Anthony Kennedy's four clerks were on the payroll already before he formally retired on July 31.

Three of them have been detailed to other sitting justices. Assuming Brett Kavanaugh is confirmed, he will hire his own four clerks. Add in the clerks for the other sitting justices and the clerks of two retired justices (who also help sitting justices,) and as many as 41 clerks will be working at the court.

Put another way, five of the nine current justices will have five clerks at their side, rather than the usual four clerks.

We asked two political scientists who have written extensively on the law clerk phenomenon—Todd Peppers of Roanoke College and Artemus Ward of Northern Illinois University—for their thoughts about the burgeoning number of clerks. Their comments:

➤➤ Ward: “My take on the growth in clerks is that it's a bad trend for the court and for our country. Clerks are more powerful and influential than ever in all aspects of the court's work from choosing which cases will be decided to deciding those cases and drafting opinions.”

➤➤ Peppers: “Since Art and I have slightly different views on the level of influence, our answers will also be slightly different in terms of the impact on these historically high numbers. On one hand, it seems excessive as the court grants fewer and fewer cert petitions and hears fewer and fewer cases. I believe that last term's numbers were at an all-time low for the modern court. So we have the justices hearing fewer cases and issuing fewer opinions with even more clerks. And these are justices who are not writing the first drafts of their opinions.”

➤➤ Ward: “During the first century of the court's existence there were no clerks. The first clerks did none of this work and were merely apprentices learning the law. The justices did their own work. Now, the justices are so reliant on them that there is a fierce competition among the justices to secure the best and the brightest.”

➤➤ Peppers: “Let's take the justices at their word for a moment. They say they are not overly reliant on their clerks. While the justices don't prepare first drafts of opinions, the clerks are given precise instructions and the editing pen is expertly used. If this is the case, could you argue that all these clerks are a misuse of government resources? Could you argue that the justices can't have it both ways—they can't argue that they are not overly reliant on clerks while simultaneously gobbling up more clerks as workload falls?”

➤➤ Ward: “The clerks come from a handful of the nation's most elite law schools and will go on to become influential legal and political elites including judges and justices in their own right. In short, clerks are unelected and unaccountable officials working at the highest level of the government. Shrinking or eliminating their responsibilities and ranks would return power and responsibility to the justices themselves, who at least have to successfully navigate the appointment process to gain their positions.”

Any more thoughts on this? Tell us what you think. We're at [email protected]and [email protected].

|

Who's the Most Polite Justice?

A new website—ScotusOA.com—plumbs the ins and outs of Supreme Court oral arguments through data-driven analysis. The site recently asked a version of the famous Disney question: “Mirror, mirror on the wall, who is the politest (justice) of them all?”

Under two different measures of politeness applied to all justices serving from 1955 through 2017, the court's female justices were more polite than the average male justice, according to Tonja Jacobi of Northwestern University School of Law and Matthew Sag of Loyola University Chicago Law School.

Jacobi co-authored a recent empirical study that concluded female justices are interrupted three times as much as their male colleagues by those colleagues and advocates. The study drew national attention and a desire, she said, to make her and Sag's argument research more accessible to an audience broader than legal and social science readers.

“I really want people to read some of this analysis,” Jacobi said. “I think the Supreme Court is endlessly fascinating and people can understand complicated things about the court if presented in simple, accessible ways.”

The website serves two other purposes. It is a home for research findings that don't quite fit into a larger project, she explained. And it will be a forum for their forecasting of the outcomes of cases based on oral arguments.

“Let's see if we can predict outcomes based on oral arguments,” said Jacobi. “We need a public forum to put out our predictions. We think we have some interesting two dimensional ways to show how we can predict outcomes. We've been asked to do that privately and thought we may as well do it publicly as well.”

Jacobi and Sag plan to post a new idea every week. “You have a short amount of space to explore ideas. It's a different kind of writing than writing long articles. We may have some guest bloggers as well.”

Now back to that politeness measure…

The first measure shows how often each justice says, “I'm sorry,” “excuse me,” “may I ask,” “can I ask” or says the advocate's name. The second measure omits the name-checking the advocate.

Under either measure, they found, two of the top three most polite speakers are women: Justice Elena Kagan is first of 33 justices and Justice Ruth Bader Ginsburg is third under the most inclusive measure. Justice Sandra Day O'Connorranked fifth. Under the narrower measure, Justice Sonia Sotomayor is second and Justice Kagan is third of the 33 justices. Justice John Paul Stevens had the top spot.

Lancaster Resigns as Special Master: Update

We have a little more to report on Ralph Lancaster, the special master in the Supreme Court's Florida v. Georgia “original jurisdiction” case, whose service in that capacity ended August 9.

The court's order said Lancaster was “discharged with the thanks of the court,” language used when other special masters have left suddenly. What the order did not state was that Lancaster had tendered his resignation from the position on June 28.

That was the day after the court had issued an opinion based on Lancaster's report about the water dispute between the two states. In this kind of litigation, brought to the Supreme Court without lower court proceedings, the court appoints special masters to gather facts and make recommendations to the justices. The court remanded the case to Lancaster for further findings.

In a June 28 letter addressed to Chief Justice John Roberts Jr., Lancaster, who was appointed special master in 2014, said that “with the passage of time” and the remand by the court, “my age and health now cause me to have reservations about continuing in my duties as special master.” The 88-year-old Lancaster, of counsel at Pierce Atwood in Maine, said the time was right for the court to appoint a new special master in the case.

The court appointed Paul Kelly Jr., a senior judge on the U.S. Court of Appeals for the Tenth Circuit, to replace Lancaster. Lancaster's stint in Florida v. Georgia was his fourth time as an appointed special master, an unrivaled number in court history.

|

In Case You Missed It…

>> Solicitor General Noel Francisco dumped stocks in major U.S. companies days after he was confirmed, a new financial disclosure shows. [SCB]

>>The families of two Mexican teenagers killed while on Mexican territory by U.S. Border Patrol guards soon will ask the Supreme Court in separate petitions to hear their claims. [NYT]

>>Justice Ruth Bader Ginsburg's robe collars are a “communication system, a kind of fashion semaphore.” [CNN]

>> The Supreme Court isn't on President Donald Trump's side as he continues to bash the media. [SCB]