People speculate the leaker was a law clerk, one of the 36 young lawyers chosen by the justices to work alongside them in complete confidentiality. Perhaps the leaker clerks for a liberal justice and wanted to warn Democrats about the impending opinion. Or maybe a conservative justice’s clerk was worried someone might defect, leading to a less sweeping outcome.
If a clerk was the leaker, it might not be surprising. Since the 1990s, justices have increasingly selected clerks for ideology, not just skill and training. This ideological linkage grows stronger against the backdrop of a court that has a lot of control over which cases it focuses its attention on.
Here’s what political scientists knows about clerks, their potential to influence their justices and calls for reform.
Leaks don’t hurt trust in the Supreme Court. Unpopular decisions do.
Why do justices have clerks?
As the 20th century progressed, Congress has steadily authorized more clerks to help the justices handle the demands of the job. When Lewis Powell joined the court in 1972, he lobbied Chief Justice Warren E. Burger to “think of including in the budget a request for funds for a fourth law clerk for me and for any other Justice who may desire one. … There is simply not enough time for me to do this on my own.”
His lobbying paid off. Ever since, each justice can hire four clerks for routine tasks including filtering requests to hear cases, conducting research and drafting opinions.
While the number of clerks remains the same since the 1970s, the court’s operation has changed. In 1988, the justices successfully lobbied Congress to gain more power to choose which cases to hear and which to ignore. One study finds that after this change in policy, the justices decided 54 fewer cases each year, on average.
Today, the court issues written opinions for less than half of the number of cases it decided 50 years ago. Indeed, in the 2019-2020 term, the court issued written opinions in the fewest cases of any term in more than a century: 53, compared with 41 during the Civil War.
With a total of 36 clerks, that means the ratio of signed opinions to clerks hovers around 2 to 1 (there were 69 signed opinions in 2018-2019, the last pre-pandemic term). In 1975, after Powell and the other justices were authorized to hire four clerks, that ratio was about 4 to 1 (160 signed opinions).
A second change is that the court now receives thousands of additional petitions to hear cases — more than 7000 in 2018, compared with less than 5000 in 1975. Many of these ask the justices to issue a writ of certiorari and formally agree to hear the case. In 1972, Powell originally organized a “cert pool,” in which participating justices pool their clerks and assign a single clerk to process each petition, summarizing it and recommending whether to grant the request. Interestingly, two justices don’t participate in the pool. Their clerks process each petition separately to preserve independence from the pool’s recommendation.
