The liberal tradition of the Supreme Court clerkship: Its rise, fall, and reincarnation?

Vanderbilt Law Review

Volumn 62, Issue 6, 2009, Pages 1749-1814

  Nelson, William E ^d   Rishikof, Harvey ^d   Messinger, I Scott ^d   Jo, Michael ^a,b,c  

^a NEW YORK UNIVERSITY   (United States)

^b National War College   (United States)

^c The Constitution Project

^d NONE

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[No Author keywords available]

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EID: 74549162189     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (411)

1. See, e.g., Jerry Markon, Obama's Appointments Are Expected to Reshape the U.S. Legal Landscape, WASH. POST, Dec. 8, 2008, at Al (explaining that despite the Court's conservative nature, Obama can assert his influence through lower-court appointments);
2. Tony Mauro, Despite Victory, Court May Hold Steady, LEGAL TIMES, Nov. 10, 2008, at 8 (discussing when the Court's four liberal justices might retire);
3. David G. Savage, Supreme Chance to Alter the Court; Who Would Obama Nominate if Given an Opportunity? Liberals Have High Hopes, but a Moderate is More Likely, L.A. TIMES, Nov. 17, 2008, at A12.
4. This Article was largely completed in the spring of 2009, before Justice Sotomayor's appointment, and it analyzes data through 2006. Therefore, it does not attempt to discuss the jurisprudence of Justice Sotomayor, Chief Justice John Roberts, or Justice Samuel Alito. It is enough to note that Justice Sotomayor is likely to serve on the court for decades to come, and that as a presumptively liberal justice, she replaced another member of the Court's liberal wing
5. President Barack Obama, Inaugural Address (Jan. 20, 2009), in WASH. POST, Jan. 21, 2009, at A34.
6. Legal scholars, political scientists, and economists have developed a sizable literature on the empirical measurement of ideological polarization in the Supreme Court and the federal appellate courts. Most of these studies correlate judicial voting patterns with the political party of the President appointing each judge.
7. See, e.g., CASS SUNSTEIN ET AL., ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY 19 (2006) ("Democratic appointees are far more likely to vote in the stereotypically liberal direction than are Republican appointees.");
8. Richard L. Revesz, Ideology, Collegiality, and the. D.C. Circuit: A Reply to Chief Judge Harry T. Edwards, 85 VA. L. REV. 805, 807-08 (1999) (finding that Republican-appointed judges were more likely than Democrat-appointed judges to reverse EPA decisions challenged by industry). Other studies examine the voting records of judges to determine their ideological orientations.
9. See, e.g., William M. LANDES & Richard A. POSNER, Rational Judicial Behavior: An Empirical Study 1-9 (Univ. of Chi. John M. Olin Law & Econ., Working Paper No. 404, 2008), available at http://ssm.com/abstract-1126403. Most scholars working in this area draw upon the databases assembled by Harold Spaeth and Donald Songer.
10. See, e.g., ASHLYN K. KUERSTEN & DONALD R. SONGER, DECISIONS ON THE U.S. COURTS OF APPEALS 241-64 (2001);
11. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL xvii (1993). All these studies conclude that ideology plays a role in judicial decisionmaking, conditioned by likelihood of appellate review, existence and broad acceptance of precedent, or the ideological consistency of court or appellate panel. Most find evidence of increasing polarization in recent decades.
12. Journalists have also conducted investigations of ideological polarization in the federal courts.
13. See, e.g., R. Jeffrey Smith, The Politics of the Federal Bench; GOP-Appointed Majorities Winning Ideological Battles at Appellate Level, WASH. POST, Dec. 8, 2008 , at Al (finding significant polarization in en banc rulings of Federal Court of Appeals for Sixth Circuit from 1998-2008, which is correlated with the party of the President appointing each judge).
14. In examining the Supreme Court clerkship as an institutional practice, this Article draws upon insights from New Institutionalism, specifically the Historical Institutionalism of political science. Historical Institutionalists argue that institutions have "have powerful channeling and delimiting effects" upon individuals, rather than merely functioning as neutral sites for political conflict, but they also examine institutions as "the developing products of struggle among unequal actors," rather than as wholly structural forces outside the control of political actors. In so doing, they focus upon historical and multi-institutional context in shaping institutions and their subsequent structuring of collective behavior. Paul Pierson & Theda Skocpol, Historical Institutionalism in Contemporary Political Science, in POLITICAL, SCIENCE: THE STATE OF THE DISCIPLINE 693, 706-07 (Ira Katznelson & Helen V. Milner, eds., 2002).
15. Historical Institutionalism is distinct from Rational Choice Institutionalism and New Institutional (or Organizational) Economics, which employ the tools of economic theory to analyze political and economic institutions. Peter Hall & Rosemary Taylor, Political Science and the Three New Institutionalisms, 44 POL. STUD. 936, 936-50 (1996).
16. Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DEPAULL. REV. 51, 53 (2008).
17. id.
18. Nearly all commentators on the Supreme Court clerkship, academic and otherwise, note that many of its former members assume leadership positions in private practice, all levels of government, and the academy. A small minority take prominent positions in business, public interest law, and the nonprofit sector. A leading scholar of the institution states that "no other internship program in the history of the United States has produced as impressive and diverse a collection of individuals as the U.S. Supreme Court law clerk corps." TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK l (2006).
19. Many have argued that the Court plays an "educative" role in American democracy.
20. See Christopher L. Eisgruber, 7s the Supreme Court an Educative Institution?, 67 N. Y. U. L. REV. 961, 964 (1992) ("[T]he Supreme Court cannot be fully understood except as an institution with educative responsibilities.");
21. Mark Tushnet, Style and the Supreme Court's Educational Role in Government, 11 CONST. COMMENT. 215, 223 (1994) (arguing in part that "[t]he Court educates the public by acting through opinion leaders");
22. see also ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 26 (1962) ("[T]he courts. are also a great and highly effective educational institution.");
23. Eugene V. Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REV. 193, 208 (1952) (calling Justices "teachers in a vital national seminar").
24. But see Michael J. Klarman, What's So Great About Constitutionalism?, 93 Nw. U. L. REV. 145, 175-79 (1998) (arguing that controversial Supreme Court decisions "were more successful at mobilizing opposition than at rallying support through educating the citizenry" and that "we should be glad that the Supreme Court's pronouncements do not have much educational effect. [because] the educational lessons conveyed by the Court are as likely to be bad as good"). Whether this role is effective or normatively desirable, the prominence of former clerks in the academy, private practice, and government suggest that they function as important agents in disseminating the doctrines of the Court throughout the nation's political and legal institutions.
25. Two recent book-length studies exhaustively document the clerkship institution: PEPPERS, supra note 7, and ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICESVV: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT (2006).
26. See also BRADLEY J. BEST, LAW CLERKS, SUPPORT PERSONNEL, AND THE DECLINE OF CONSENSUAL NORMS ON THE UNITED STATES SUPREME COURT, 1935-1995 (2002);
27. JOHN BLLYEU OAKLEY & ROBERT S. THOMPSON, LAW CLERKS AND THE JUDICIAL PROCESS: PERCEPTIONS OF THE QUALITIES AND FUNCTIONS OF LAW CLERKS IN AMERICAN COURTS (1980);
28. Paul R. Baier, The Law Clerks: Profile of an Institution, 26 VAND. L. REV. 1125 (1973);
29. Norman Dorsen, Law Clerks in Appellate Courts in the United States, 26 MOD. L. REV. 265 (1963);
30. Chester A. Newland, Personal Assistants to Supreme Court Justices: The Law Clerks, 40 OR. L. REV. 299 (1961). Other first-hand accounts include JOHN KNOX, THE FORGOTTEN MEMOIR OF JOHN KNOX: A YEAR IN THE LIFE OF A SUPREME COURT CLERK IN FDR's WASHINGTON (David J. Garrow & Dennis J. Hutchinson eds., 2002); J. HARVIE WILKINSON, III., SERVING JUSTICE: A SUPREME COURT CLERK'S VIEW (1974).
31. According to records provided by the Supreme Court, 1,888 clerks have served through O.T. 2006. Research has unearthed eight additional names of possible clerks, most of whom served before 1920. Of these 1,896, this study [hereinafter Supreme Court Clerks Data Set] has unearthed data for 1,723, or 90.9 percent of the total. For the majority of the 1,723 clerks with career data, research has identified their major career positions, undergraduate and law schools attended with dates of graduation, prior clerkship (if any), and post-baccalaureate degrees other than the J.D.
32. Primary sources include lawyer biographies and resumes published by law firms and law schools; the Martindale-Hubbell Law Directory; the Association of American Law Schools' annual directory of law professors;
33. Aspen Publishers' Directory of Corporate Counsel; government biographies and press releases from the Federal Judicial Center, the Department of Justice, and other agencies; corporate annual reports and press releases listing in-house counsel; and biographical directories such as Who's Who in America. Secondary sources include published reminiscences by former clerks, archived oral histories, and biographies of the Justices.
34. Each clerk has been assigned a primary and secondary career category out of the following: private legal practice, academia, government service, the judiciary, non-profit legal employment, elected office, and non-legal employment. Generally, the primary career represents the last position held by the clerk. Where a clerk's career has been dominated by a particular position that he or she no longer holds or did not hold at the time of his or her death, this position has been substituted for the clerk's last position of employment. Those few clerks who served for multiple terms or served multiple Justices during a single term are counted once, under the Justice who first appointed them. Data is current as of August 2008.
35. For tables summarizing the complete data set, see app. tbls. I, II.
36. For a typical assertion of this practice, see Margaret Talbot, Supreme Confidence: The Jurisprudence of Antonin Scalia, NEW YORKER, Mar. 28, 2005, at 40.
37. Most discussions of the Supreme Court clerkship outside legal academic and professional circles adopt the latter view of the institution.
38. See, e.g., EDWARD LAZARUS, CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT 6 (1998) (describing the Court as an "institution broken into unyielding factions" where justices "discard judicial philosophy and consistent interpretation in favor of bottom-line results" and where "ideologically driven clerks" use their power to "manipulate their bosses and the institution they ostensibly serve");
39. JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 339 (2007) (arguing that constitutional cases before the Court "can be decided only on the basis of a political judgment," which is directly related to the identities of the Justices and the outcomes of presidential elections);
40. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 18-19 (1979) (describing President Nixon's use of the F.B. I, to investigate Justice Fortas, with the goal of "discredit[ing] his student liberalism").
41. Democrats won seven of the nine presidential elections between 1932 and 1964, and the moderate Republican Dwight Eisenhower won in 1952 and 1956. For Eisenhower's attempt to forge a moderate "Modern Republicanism" that incorporated and extended New Deal programs such as Social Security,
42. see JAMES T. PATTERSON, GRAND EXPECTATIONS: THE UNITED STATES, 1945-1974 272 (2006) (noting that Eisenhower "in no way threatened the welfare state begun in the New Deal years");
43. STEVEN WAGNER, EISENHOWER R EPUBLICANISM: PURSUING THE MIDDLE WAY 4 (2006) ("[Eisenhower] supported the continuation and, in some cases, the expansion of popular New Deal programs."). For the limits of this accommodation of liberalism,
44. see Robert Griffith, Dwight D. Eisenhower and the Corporate Commonwealth, 87 AM. HIST. REV. 87, 91-92 (1982) (stating that Eisenhower's "middle way" initially "entailed arresting the momentum of New Deal liberalism" while acknowledging that "some forms of state action were not only expedient but necessary").
45. Of the four men appointed by President Eisenhower who served for any extended period of time, two-Earl Warren and William Brennan-became paradigms of liberalism. Two others-John Marshall Harlan and Potter Stewart-were no more conservative than a number of Democratic appointees, such as Stanley Reed, Tom Clark, and Byron White, or, arguably, Justice Frankfurter himself. Together these men, along with mostly more liberal Justices, made the Court a centrist to left-leaning entity between 1937 and 1968.
46. See PHILIPPA STRUM, LOUIS D. BRANDEIS: JUSTICE FOR THE PEOPLE 95-96,122-24,309-13 (1984) (describing the role of the "Brandeis brief' in bringing data about the current state of society before the Court and how Brandeis "found the key to jurisprudence in facts").
47. Letter from Louis D. Brandeis to Felix Frankfurter (Jan. 24, 1926), in 5 LETTERS OF LOUIS D. BRANDEIS 204 (Melvin I. Urofsky & David Levy eds., 1978).
48. STRUM, supra note 15, at 363-64.
49. See id. at 114-31 (describing Brandeis' use of statistics).
50. 208 U.S. 412 (1908).
51. See PHILIPPA STRUM, BRANDEIS: BSEYOND PROGRESsmsM 63-71 (1993) (describing Brandeis' use of facts in several cases);
52. MELVIN I. UROFSKY, A MIND OF ONE PIECE: BRANDEIS AND AMERICAN REFORM 133-39 (1971) (describing how Brandeis would search out "all of the relevant materials of any sort" and then see "how the law meshed with the facts").
53. See STRUM, supra note 15, at 356-57 (describing how one Brandeis clerk spent six months researching background material for a patent case and how another clerk "prepared endless pages of research").
54. See id. at 359 (describing Brandeis's goal of creating a new pool of law professors composed of former clerks).
55. For an example of historical scholarship supportive of Brandeis's views about government's power to stimulate and regulate the economy,
56. see JAMES WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES (1956). Not all of Brandeis's clerks, however, saw their subsequent careers or their experience in the clerkship in quite the same manner that Brandeis did. Riesman, for example, expressed contempt for his experience in the clerkship and for the duties he had had to perform. David Riesman, Becoming an Academic Man, in AUTHORS OF THEIR OWN LIVES: INTELLECTUAL BIOGRAPHIES BY TWENTY AMERICAN SOCIOLOGISTS 22, 38-40 (Bennett M. Berger ed., 1990). Nonetheless, it is noteworthy that Riesman had an extraordinary career doing the sort of scholarship that Brandeis anticipated would be helpful to a liberal-oriented Supreme Court.
57. The most important book of a former Brandeis clerk examining the work of the judiciary probably was HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. and Philip P. Frickey eds., 1994).
58. Letter from Louis D. Brandeis to Felix Frankfurter (Jan. 28, 1928), in 5 LETTERS OF LOUIS D. BRANDEIS, supra note 16, at 320.
59. Letter from Louis D. Brandeis to Felix Frankfurter (Oct. 13, 1929), in 5 LETTERS OF LOUIS D. BRANDEIS, supra note 16, at 404. As a general matter, Brandeis encouraged his clerks to leave Eastern metropolises and "[g]o home and be.. leader[s] in.. [their] own communitfies]." Nathaniel L. Nathanson, Mr. Justice Brandeis: A Law Clerk's Recollections of the October Term, 1934, 15 AM. JEWISH ARCHIVES 6,13 (1963).
60. See STRUM, supra note 15, at 413-14 (commenting on Brandeis's approach to sociological jurisprudence).
61. Fred H. Young, A Victor Over Prejudice, PROVIDENCE J. BULL., Oct. 7, 1941, reprinted in MR. JUSTICE BRANDEIS, GREAT AMERICAN: PRESS OPINION AND PUBLIC APPROVAL 32-33 (Irving Dillard ed., Modern View Press 1941).
62. Such institutions include the University of Florida (William Sutherland), St. John's University (Calvert Magruder), New York University (Thomas Austern), and Washington University (Paul Freund).
63. Letter from Louis D. Brandeis to Felix Frankfurter (Oct. 23, 1922), in 5 LETTERS OF LOUIS D. BRANDEIS, supra note 16, at 74.
64. Letter from Louis D. Brandeis to Felix Frankfurter (Oct. 7, 1928), in 5 LETTERS OF LOUIS D. BRANDEIS, supra note 16 , at 358-59 (emphasis added).
65. Letter from Louis D. Brandeis to Felix Frankfurter (Oct. 13, 1929), in 5 LETTERS OF LOUIS D. BRANDEIS, supra note 16, at 404.
66. For a list of Brandeis's clerks and information about their careers as of the mid-1940s,
67. see ALPHEUS T. MASON, BRANDEIS: A FREE MAN'S LIFE 690 (1946).
68. Supreme Court Clerks Data Set, supra note 10.
69. Robert M. Spector, Legal Historian on the United States Supreme Court: Justice Horace Gray, Jr., and the Historical Method, 12 AM. J. LEGAL HIST. 181, 186 n.19 (1968).
70. These were Samuel Williston (O.T. 1888, Gray);
71. Ezra Ripley Thayer (O.T. 1891, Gray);
72. Jeremiah Smith, Jr. (O.T. 1895, Gray);
73. Joseph Warren (O.T. 1900, Gray);
74. and Augustin Derby (O.T. 1906, Holmes).
75. A few other clerks, such as Blewett Harrison Lee (O.T. 1889, Gray)
76. and Roland Gray (O.T. 1898, Gray), taught in law schools briefly before entering private practice. William Schofield (O.T. 1883, Gray), served as an instructor of torts at Harvard Law School while maintaining his private practice; he later served as a member of the Massachusetts House of Representatives, the Supreme Judicial Court of Massachusetts, and the United States Court of Appeals for the First Circuit. Supreme Court Clerks Data Set, supra note 10.
77. The original act of Congress creating clerkship positions for each Justice called them "stenographic clerks." Act of Aug. 4, 1886, ch. 902, 24 Stat. 254. It was not until 1920 that Justices were authorized to appoint both a law clerk and a secretary. Act of May 29, 1920, ch. 214, 41 Stat. 631, 686-87.
78. Of the eighty-five clerks who served before O.T. 1916, fifty (58.8 percent) have left no record of attending law school. While some of these clerks may have read law in a practitioner's law office and later practiced law themselves, others worked as stenographers both before and after their time at the Supreme Court, suggesting that they had little or no legal education. Justices Samuel Blatchford, Joseph P. Bradley, David Josiah Brewer, Henry Billings Brown, William Rufus Day, Samuel Miller, William Henry Moody, Willis Van Devanter, and Edward Douglass White appear never to have hired a law school graduate as a clerk. The elder Justice John Marshall Harlan did, however, hire clerks with and without law degrees. Supreme Court Clerks Data Set, supra note 10.
79. Justices Gray and Holmes did employ recent law school graduates on a short-term basis, and they used their clerks mainly as legal rather than stenographic assistants.
80. See PEPPERS, supra note 7, at 51-53, 56-61. Justices Gray and Holmes, it might be noted, accounted for all but one of the twenty-nine Harvard Law School graduates who served as clerks before O.T. 1916. Supreme Court Clerks Data Set, supra note 10.
81. Justice Harlan Fiske Stone, who was appointed to the Court nearly a decade after Brandeis, became the fourth Justice to select only law school graduates as clerks. Stone, who had been dean of Columbia Law School, chose all his clerks except his first from Columbia, selecting from a list drawn up by Dean Young B. Smith and Professor Noel T. Dowling. ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 646-47 (1956).
82. For the duties of clerks hired by Justices other than Gray, Holmes, and Brandeis during this period,
83. see PEPPERS, supra note 7, at 56-62, 66-70 (noting that a law clerk's duties could include taking dictation, answering telephones and correspondence, balancing checkbooks, and acting as a traveling companion).
84. Horace Gray began his legal career in 1854 as Reporter of Decisions for the Massachusetts Supreme Judicial Court; his exemplary performance of those duties earned him a spot on that bench ten years later. Spector, supra note 35, at 185. He became Chief Justice of the state Supreme court in 1873, and hired law clerks including Louis Brandeis before joining the United States Supreme Court in 1882. Id.;
85. Supreme Court Clerks Data Set, supra note 10.
86. Supreme Court Clerks Data Set, supra note 10.
87. WILLIAM E. LEUCHTENBERG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 108 (1995).
88. The five were Hugo Black in 1937, Stanley Reed in 1938, Felix Frankfurter and William 0. Douglas in 1939, and Frank Murphy in 1940.
89. id. at 220;
90. Supreme Court Clerks Data Set, supra note 10.
91. The total of eight includes Harlan Fiske Stone: although he had first been appointed as an Associate Justice by Calvin Coolidge in 1924, he owed his appointment as Chief Justice to Roosevelt. The two additional Roosevelt appointees were James Francis Byrnes and Robert Jackson, both chosen in 1941. Byrnes left the Court to head the Office of Economic Stabilization in October 1942 and was succeeded by Wiley Rutledge. WILLIAM M. WIECEK, THE BIRTH OF THE MODERN CONSTITUTION: THE UNITED STATES SUPREME COURT, 1941-1953, at l, 51,106, no (2006).
92. These appointments came less than five years after Roosevelt's failed attempt to reorganize the Court. The vigorous scholarly debate on the "court-packing" controversy asks whether the Justices transformed constitutional jurisprudence in response to the President.
93. See, e.g., BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 11 (1998) ("Because each of the decisions comprising the revolution was handed down after Roosevelt's February 5, 1937 announcement of the plan, commentators quite naturally posited a causal link.");
94. LEUCHTENBERG, supra note 42, at 162 C'[N]o event has had more momentous consequences than Franklin Roosevelt's message of February 1937.");
95. G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 14 (2000) ("|T]he "Court-packing" plan. is treated. as chastening the Court and facilitating its accommodation to New Deal legislation.");
96. Laura Kalman, The Constitution, The Supreme Court, and the New Deal, 110 AM. HIST. REV. 1052, 1053 (2005) (noting that the shift on the Court occurred "weeks after the president had announced his plan to add one justice to the Supreme Court for each one over the age of seventy who did not retire, up to fifteen justices"). Regardless of the answer to that question, the controversy and its aftermath helped establish a more stable balance of power between the Court and Congress. The Twenty-Second Amendment, for example, constrains the President's ability to control the Court by reducing the number of appointments he can potentially make.
97. The last Justices who consistently appointed clerks without law degrees were two of the "Four Horsemen" opposed to the New Deal, Willis Van Devanter and Pierce Butler. The other two, James Clark McReynolds and George Sutherland, appointed clerks both with and without law degrees. After McReynolds's retirement from the Court in 1941, every incoming clerk has had a law degree, and only one or two clerks in any given year have clerked at the Court in a previous term. Supreme Court Clerks Data Set, supra note 10;
98. see also Newland, supra note 9, at 306 (Although the "system of employing recent law-school graduates for one-year terms is now the rule, it was not generally adopted until the advent of the Roosevelt court.").
99. Supreme Court Clerks Data Set, supra note 10.
100. KARL L. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 321 (i960).
101. STRUM, supra note 15, at 354.
102. LEONARD BAKER, BRANDEIS AND FRANKFURTER: A DUAL BIOGRAPHY 227-28 (1984);
103. LIVA BAKER, FELDC FRANKFURTER 103 (1969);
104. MICHAEL E. PARRISH, FELTX FRANKFURTER AND HIS TIMES: THE REFORM YEARS160-61 (1982). The S.J.D. (Scientiae Juridicae Doctor) is Harvard Law School's designation of its most advanced degree, Doctor of Juridical Science; most other law schools designate this degree the J.S.D. (Juris Scientiae Doctor).
105. Supreme Court Clerks Data Set, supra note 10.
106. This was Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court from 1977 to 1992. Supreme Court Clerks Data Set, supra note 10.
107. Out of 313 clerks who served during this period, seventy-nine became academics, and eighteen out of those seventy-nine clerked for Justice Frankfurter. Supreme Court Clerks Data Set, supra note 10.
108. See H.N. HmsCH, THE ENIGMA OF FELDC FRANKFURTER 6, 155-76 (1981) ("Frankfurter could not lead the Court and, much to his surprise, found himself faced with an opposing 'bloc.' ");
109. ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY 297-98, 322 (1994) (discussing Frankfurter's divisiveness and his failed expectation of being the Court's leader);
110. JAMES F. SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 127 (1989) (noting that within four years of his appointment Frankfurter had "lost his liberal majority and leadership").
111. Interview with Jerome A Cohen, Professor, New York Univ. Sch. of Law, in New York, N.Y. (Nov. 10, 2008); Interview with Norman Dorsen, Professor, New York Univ. Sch. of Law, in New York, N.Y. (Oct. 15, 2008).
112. See Erwin N. Griswold, Felix Frankfurter-Teacher of the Law, 76 HARV. L. REV. 7, 10-11 (1962) ("Through his succession of law clerks from the Harvard Law School he kept well informed about conditions at the School, and through his acquaintance with his own law clerks, and clerks to other Justices, too, he has been of great help in evaluating persons in whom we had an interest for possible membership on our Faculty.");
113. see also Norman Dorsen, Earl Warren, II, in 2008 GREEN BAG ALMANAC & READER 93, 94 (Ross E. Davies ed.) ("[M]y professors.. viewed Frankfurter's jurisprudence as close to gospel.");
114. Norman Dorsen, The Enigma of Felix Frankfurter, 95 HARV. L. REV. 367, 385 n. 101 (1981) (reviewing H.N. HIRSCH, THE ENIGMA OF FELDC FRANKFURTER (1981) and discussing Frankfurter's influence on constitutional law teaching and scholarship at Harvard and elsewhere).
115. In total, over half (that is, 50.8 percent) of the 786 clerks in this time period became academics or served in government. It is perhaps noteworthy that in addition to the 155 practitioners who served in government, 160 of the 244 clerks who became professors also served in government. Government service, in short, seems to have been a rite of passage for many clerks, regardless of their ultimate destination. Supreme Court Clerks Data Set, supra note 10.
116. Thirty-four out of Justice Blackmun's ninety-four clerks became academics; Justice Harlan, thirteen out of thirty-eight; Justice White, thirty-three out of ninety-five; Chief Justice Warren, fifteen out of forty-seven; and Justice Stewart, seventeen out of fifty-six. Supreme Court Clerks Data Set, supra note 10.
117. Several scholars have examined the hiring of Supreme Court clerks, and all have found increasing partisan polarization of the process since the 1980s. The first such study, by Corey Ditslear and Lawrence Baum, measured partisan polarization by comparing the party affiliations of Supreme Court Justices with those of federal circuit and district court judges, with whom clerks almost invariably serve before coming to the Supreme Court. They measured the affiliations of federal judges with a complex metric combining voting records, party of the appointing President, and other criteria. Corey Ditslear & Lawrence Baum, Selection of Law Clerks and Polarization in the U.S. Supreme Court, 63 J. POL. 869, 872-74 (2001). Most other scholars have in part followed a simplified version of the Ditslear and Baum method, focusing solely on the party of the appointing President. PEPPERS, supra note 7, at 31-37;
118. WARD & WEIDEN, supra note 9, at 76-85. In a similar vein, scholars studying other branches of the federal judiciary have also controlled for judges' political affihation by referring to the party of the appointing President. SUNSTEIN ET AL., supra note 3, at 6-7.
119. This metric has obvious imperfections. It assumes a strong correlation between party affihation and ideological orientation; it ignores the possibility that judges might transform their political and doctrinal approaches while in office; and it ignores the role of the Senate in constraining the President's choice of nominees, particularly when opposing parties control the two political branches of government. Given these problems, both Peppers and Ward and Weiden supplement their analysis with data from surveys of clerks. Peppers & Zorn, supra note 5, at 53;
120. PEPPERS, supra note 7, at 34-37;
121. WARD & WEIDEN, supra note 9, at 99-107. However, these surveys have imperfections of their own: limited coverage (never amounting to a bare majority of the clerks) and problems in objectively evaluating self-professions of political ideology.
122. Therefore, this Article focuses upon the party affiliation of the President appointing lower court judges. To existing studies, it adds data since 2001 and notes that Justices O'Connor, Souter, and Stevens cannot be readily characterized along straight party lines. Moreover, the studies cited largely break down the data by circuits and federal lower court judges, whereas the analysis here correlates the data with each Justice.
123. Of Chief Justice Burger's clerks with federal clerkship experience, twenty-eight out of fifty- four came from Democratic-appointed judges;
124. Powell's, twenty-eight out of forty-eight; and Stewart's, twenty-seven out of thirty-three. Totals for these and all other Justices below, see infra notes 60-61 and accompanying text, do not include all the clerks for each Justice, since some clerks did not have lower federal court experience prior to joining the Supreme Court. For a very few clerks, information on a presumed lower court clerkship is not available. Supreme Court Clerks Data Set, supra note 10.
125. Of Justice Byron White's clerks, twenty-seven out of the fifty-nine with federal clerkship experience came from Republican-appointed federal judges. Supreme Court Clerks Data Set, supra note 10.
126. Of Justice Blackmun's clerks with federal clerkship experience, fifty-four out of seventy-five came from Democratic-appointed judges;
127. Brennan's, fifty-seven out of seventy-four; Marshall's, fifty out of seventy; and Warren's, seven out of ten. Supreme Court Clerks Data Set, supra note 10.
128. See infra notes 94-96 and accompanying text.
129. Of Justice Frankfurter's clerks with federal clerkship experience, eight came from Democratic-appointed and eight from Republican-appointed judges. Supreme Court Clerks Data Set, supra note 10.
130. There is no centralized record of former Supreme Court clerks employed by the Executive Branch; statistics must be compiled from the biographical data of individual clerks. Therefore, it is likely that these figures are incomplete. Supreme Court Clerks Data Set, supra note 10.
131. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
132. JOHN HART ELY, DEMOCRACY AND DISTRUSTV: A THEORY OF JUDICIAL REVIEW (1980).
133. WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988).
134. See, e.g., Charles Fried, Privacy, 77 YALE L.J. 475 (1967);
135. Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 HARV. L. REV. 755 (1962).
136. See, e.g., Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363 (1983);
137. Mark Tushnet, Legal Scholarship: Its Causes and Cure, 90 YALE L. J. 1205 (1980);
138. Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 WIS. L. REV. 125;
139. Mark Tushnet, The Newer Property: Suggestion for the Revival of Substantive Due Process, 1975 SUP. Or. REV. 261.
140. See, e.g., ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1970);
141. ALEXANDER M. BICKEL, POLITICS AND THE WARREN COURT (1955);
142. BICKEL, THE LEAST DANGEROUS BRANCH, supra note 8.
143. See, e.g., Frank I. Michelman, Property As a Constitutional Right, 38 WASH. & LEE L. REV. 1097 (1981);
144. Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U. L.Q. 659;
145. Frank I. Michelman, States'Rights and States' Roles: Permutations of "Sovereignty" in National League of Cities v. Usery, 86 YALE L.J. 1165 (1977);
146. Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969).
147. See, e.g., THE BILL OF RIGHTS IN THE MODERN STATE (Cass R. Sunstein et. al. eds., 1992);
148. CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE (1990);
149. Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873 (1987);
150. Cass R. Sunstein, Public Values, Private Interests, and the Equal Protection Clause, 1982 SUP. CT. REV. 127.
151. See, e.g., Martha Minow, The Constitution and the Subgroup Question, 71 IND. L. J. 1 (1995);
152. Martha Minow, The Supreme Court 1986 Term, Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987);
153. Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L. J. 1860 (1986);
154. Martha Minow, "Forming Underneath Everything that Grows:" Toward A New History of Family Law, 1985 Wis. L. REV. 819.
155. William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 54. Rehnquist, who clerked for Justice Robert H. Jackson during O.T. 1952, rejected the notion that clerks influenced the Justices' opinions, but concluded that their political views exerted an inappropriate influence over review of certiorari petitions. id. In response to criticism, he subsequently published a reply: William H. Rehnquist, Another View: ClerksMight "Influence" Some Actions, U.S. NEWS & WORLD REP., Feb. 21, 1958, at 116.
156. Interview by Steven Teles with William H. "Chip" Mellor, President and Gen. Counsel, Inst, for Justice, quoted in STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 82 (2008) [hereinafter TELES, CONSERVATIVE LEGAL MOVEMENT]. The Institute for Justice is a libertarian public interest law firm, co-founded by Mellor.
157. Interview by Steven Teles with Steven G. Calabresi, George C. Dix Professor of Constitutional Law, Nw. Univ., quoted in TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 165. Calabresi is a co-founder of the Federalist Society and currently serves on its Board of Directors.
158. See also TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 11-12 ("[P]artisan entrenchment occurs not only in courts, but also in the social institutions that feed the courts with ideas, personnel, and cases.").
159. Interview by Steven Teles with Steven G. Calabresi, George C. Dix Professor of Constitutional Law, Nw. Univ., quoted in TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 164.]
160. Mark Tushnet, Public Law Litigation and the Ambiguities of Brown, 61 FORDHAM L. REV. 23, 28 (1992). For the agenda of progressive social change advanced by liberal legal scholars from the New Deal to recent years,
161. see LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 49 (1996) ("Mostly united in favor of the social change the Warren Court sought to make, law professors disagreed over the means it used."). For twentieth-century American liberalism more generally,
162. see, for example, JAMES T. KLOPPENBERG, THE VIRTUES OF LIBERALISM (1998) and THE RISE AND FALL OF THE NEW DEAL ORDER (Steve Fraser & Gary Gerstle eds., 1989).
163. It is unclear what holds the broader conservative movement together-a matter of considerable scholarly investigation and debate. Modern American conservatism contains many disparate strands-Protestant evangelicals, libertarians, business lobbyists, conservative Catholics, anti-feminists, and foreign-policy-oriented neo-conservatives among them-making it difficult to isolate an ideological core of the movement as a whole. Hence the movement's coherence comes from strategy, networks, and organization-building, as much as any ideological affinities.
164. See, e.g., JACOB S. HACKER & PAUL PIERSON, OFF CENTER: THE REPUBLICAN REVOLUTION & THE EROSION OF AMERICAN DEMOCRACY 140 (2005) (describing how "effective coordination" of Republican "power brokers" ameliorates "real fissures" in Republican coalition);
165. JEROME L. HRMMELSTELN, TO THE RIGHT: THE TRANSFORMATION OF AMERICAN CONSERVATISM (1990) (analyzing the existence of specific social conditions and how the right positioned itself to take advantage of these opportunities). This coherence is constantly renegotiated and may dissolve even at critical points, such as President George W. Bush's failed nomination of Harriet Miers to the Supreme Court in 2005.
166. See Anthony Paik, Ann Southworth & John P. Heinz, Lawyers of the Right: Networks and Organization, 32 L. & SOC INQUIRY 883, 886 (2007) ("[T]he varying constituencies on the conservative side of the political spectrum may fail to present a united front, even when the stakes are high.").
167. However, the conservative legal movement is a comparatively well-organized and coherent branch of modern American conservatism, dominated by a "new class" of lawyers and legal academics distinct from the twin pillars of the conservative movement as a whole: business interests and social conservatives. The Federalist Society for Law and Public Policy Studies crucially strengthens the movement's coherence by providing it with a forum for policy discussions, recruiting, and networking, even though it does not take official policy positions or endorse candidates.
168. See TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 3,135-37,274-77 (noting that there was "a shift of power within the conservative legal movement, from grassroots activists, Republican politicians, and business to a 'new class' of legal professionals and academics.");
169. Paik, Southworth & Heinz, supra, at 910-12 (concluding that "a set of notables successfully occupied the space between religious conservatives and business interests.").
170. See, e.g., BERNARD BATLYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 47 (1967) (arguing that thinkers of American Revolution, strongly influenced by opposition writers in England, saw government as "by its very nature.. hostile to human liberty and happiness"). Modern American conservatives repeatedly assert that the Founders believed in the necessity of limiting government; for an influential example of this argument,
171. see RUSSELL KTRK, THE CONSERVATIVE MIND: FROM BURKE TO SANTAYANA 6 (1953) (identifying John Adams as a major conservative thinker, and arguing that "the American Revolution, substantially, had been a conservative reaction, in the English political tradition, against royal innovation").
172. CONG. REC. S120-3 (daily ed. Jan. 9, 2003) (statement of Sen. Hatch), quoted in TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 152.
173. TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 80 (quoting planning documents authored by William H. Mellor and Clint Bolick during the creation of the Center for Constitutional Litigation, a conservative public interest law firm).
174. The Federalist Society, arguably the most representative entity of the conservative legal movement, has adopted a conscious policy of fostering debate among its members rather than formulating organizational positions
175. See TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 142-45, 152-53, 163-64 ("[T]he society sought to make its ideas attractive to those not affiliated to conservatism.").
176. Justice Clarence Thomas has staked out the most consistently originalist position on the Rehnquist and Roberts Courts, though it is unclear whether he adheres to a jurisprudence of the original intent of the framers, or the original public meaning of the Constitution.
177. See, e.g., Kelo v. City of New London, 545 U.S. 469, 523 (2005) (Thomas, J., dissenting) ("When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.");
178. United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring) ("I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause.");
179. see also SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS 104 (1999) (arguing that Thomas' originalism was "rather a liberal' originalism grounded in the natural rights political philosophy of the Declaration of Independence").]
180. One of the most prominent religious theorists of natural law in the United States is John T. Noonan, a former professor of law who was appointed to the United States Court of Appeals for the Ninth Circuit by President Reagan.
181. See, e.g., JOHN T. NOONAN, JR., POWER TO DISSOLVE (1972);
182. JOHN T. NOONAN, JR., THE SCHOLASTIC ANALYSIS OF USURY (1956).
183. See, e.g., CHARLES FRIED, MODERN LIBERTY AND THE LIMITS OF GOVERNMENT 180-83 (2006) (examining notions of individual liberty in the modern welfare state, and asserting that it is the duty of lawyers, judges, legislators, and economists to protect and maintain a "spirit of liberty");
184. CHARLES FRIED, RIGHT AND WRONG 138 (1978) ("P]n law it is a legal and a moral question how to interpret and when to abrogate a grant of right.").]
185. 347 U.S. 483 (1954).]
186. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 866 (1992) (opinion of O'Connor, Kennedy & Souter, JJ.) CThere is a limit to the amount of error that can plausibly be imputed to prior Courts.. The legitimacy of the Court would fade with the frequency of its vacillation.");
187. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 139- 40 (1997) C[S]tare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.").
188. See TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 80, 221 ("[Conservative public interest law firms] had learned that conservative interests could only be protected by actively using courts to establish new or reinvigorate old rights.").
189. 410 U.S. 113(1973).
190. See, e.g., PAUL FREUND, ON LAW AND JUSTICE 22 (1968) (comparing the Constitution to "a work of art in its capacity to respond through interpretation to changing needs, concerns, and aspirations.");
191. HART & SACKS, supra note 24, at 3 C'[A]s people gain in experience and social conditions change, existing understandings will prove from time to time inadequate..");
192. LOUIS L. JAFFE, ENGLISH AND AMERICAN JUDGES AS LAWMAKERS 85 (1969) ("[E]ven in a parliamentary democracy a vigorous, independent judiciary can make important contributions to the solution of problems demanding lawmaking. The judiciary can enforce the Constitution and rework it to meet new challenges.").
193. For an illustration of liberal criticism of conservative scholarship and conservative rejection of the critique, compare Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 525-26 (1995) (criticizing conservative legal scholars for making "poorly supported" historical generalizations to support constitutional arguments, which "are at best deeply problematic and at worst, howlers"), with Richard A. Epstein, History Lean: The Reconciliation of Private Property and Representative Government, 95 COLUM. L. REV. 591, 592 (1995) (arguing that "history offers us too much information, without the means of sorting it out," and the Constitution can often be understood simply through "ordinary words as understood in the popular discourse of the time"). For an earlier liberal critique of conservative scholarship,
194. see Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History, 17 AM. J. LEGAL. HIST. 275, 276 (1973) (asserting that the tradition of legal history "contain[s] fundamentally conservative political preferences dressed up in the neutral garb of expert and objective legal history"). Cass Sunstein suggests that differences between liberal and conservative scholars of constitutional history stem from the fact "that the political or moral commitments of the constitutional lawyer are an omnipresent part of the constitutional lawyer's constitutional history." Cass R. Sunstein, The Idea of a Usable Past, 95 COLUM. L. REV. 601, 602 (1995) (citing G. Edward White, Reflections on the "Republican Revival": Interdisciplinary Scholarship in the Legal Academy, 6 YALE J.L. & HUMAN. 1 (1994)).
195. For a discussion of these two strategies in the growth of the law and economics movement, see TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 216-19.
196. Of Justice Kennedy's clerks with federal clerkship experience, seventy-three out of seventy- nine came from Republican federal circuit or district court judges; Rehnquist, seventy-seven out of ninety-seven; Scalia, seventy-six out of eighty-two;
197. and Thomas, all sixty-four clerks. Totals for these and all other Justices below, see infra notes 95-96 and accompanying text, do not include all the clerks for each Justice, since some clerks did not have lower federal court experience prior to joining
198. and Thomas, all sixty-four clerks. Totals for these and all other Justices below, see infra notes 95-96 and accompanying text, do not include all the clerks for each Justice, since some clerks did not have lower federal court experience prior to joining
199. For the methodological issues involved in measuring partisan polarization of clerk hiring through the party affiliation of lower court judges, see supra note 58.
200. Of Justice Breyer"s clerks with federal clerkship experience, twenty-nine out of fifty came from Democratic-appointed circuit and district court judges: Ginsburg, thirty-four out of fifty-two; Souter, forty-one out of sixty-four; and Stevens sixty out of eighty-five. It is not surprising that Justices Breyer, Ginsburg, Souter, and Stevens appoint a lower percentage of clerks from Democratic-appointed lower court judges than do Justices Kennedy, Rehnquist, Scalia, and Thomas from Republican judges since there are significantly fewer Democratic appointees serving on the lower courts. For example, there are currently sixty-three Democrats sitting on the federal circuit courts of appeals, compared with 101 Republicans. The numbers were very briefly even at the close of the Clinton administration-seventy-six and seventy-six, but given Republican domination of the White House since 1968, Republican-appointed judges typically have constituted a majority of federal circuit court judges in recent decades. Supreme Court Clerks Data Set, supra note 10;
201. see also WARD & WEIDEN, supra note 9, at 99-107 ("There is considerable evidence to suggest that some clerks limit their applications to particular justices for partisan reasons."); Appeals Courts Pushed to Right by Bush Choices, N.Y. TIMES, Oct. 29, 2008, at Al (asserting that President Bush transformed the federal appellate courts by appointing younger and more conservative judges).
202. Of Justice O'Connor's clerks with federal clerkship experience, forty-nine out of ninety-eight came from Democratic-appointed judges and forty-nine from Republican-appointed judges. Supreme Court Clerks Data Set, supra note 10. the Supreme Court. For a very few number of clerks, information on a presumed lower court clerkship is not available. Not enough data yet exists for Chief Justice John Roberts and Justice Samuel Alito; as of O.T. 2006, both Justices have maintained a spotless record of hiring from Republican-appointed judges. Supreme Court Clerks Data Set, supra note 10.
203. Throughout this article, elite schools are defined as those that have reached the top ten in the law school rankings published annually by U.S. News & World Report, including those tied for tenth place, at any time since the rankings began in 1987: Columbia, Cornell, Duke, Georgetown, Harvard, New York University, Northwestern, Stanford, the University of California at Berkeley, the University of Chicago, the University of Michigan, the University of Pennsylvania, the University of Virginia, and Yale. Best Law Schools, in America's Best Grad Schools 2010, U.S. NEWS & WORLD REP., MAY 2009, at 74 (ranking Yale, Harvard, Stanford, Columbia, New York University, Berkeley, Chicago, University of Pennsylvania, University of Michigan, Duke, Northwestern, and University of Virginia in the top ten);
204. Schools of Law, in Best Graduate Schools, U.S. NEWS & WORLD REP., Mar. 29,1999, at 94 (ranking Cornell at number ten);
205. Law, in America's Best Graduate Schools, U.S. NEWS & WORLD REP., Mar. 22,1993, at 62 (ranking Georgetown at number ten). While not all of these schools enjoyed their current prestige in earlier decades, all the leading schools of those earlier decades are included in this list. Patterns of hiring from particular schools are examined more fully in PEPPERS, supra note 7, at 23-31;
206. WARDV & WEIDEN, supra note 9, at 69-76.
207. For discussions of the allegedly liberal bias of elite law school professors, see, for example, John O. McGennis, Matthew A. Schwartz, & Benjamin Tisdell, The Patterns and Implications of Political Contributions by Elite Law School Faculty, 93 GEO. L.J. 1167 (2005);
208. Adam Liptak, If the Law is an Ass, the Law Professor is a Donkey, N.Y. TIMES, Aug. 28, 2005, at 4.4.
209. Information on legal education is lacking for a sizeable number of clerks who served between 1882 and 1939. Given the information available, it can be stated that 55.8 percent of all clerks during this period (including those without law degrees and for whom there is no information) came from elite schools, including 38.1 percent from Harvard. Supreme Court Clerks Data Set, supra note 10.
210. Supreme Court Clerks Data Set, supra note 10.
211. id.
212. id.
213. Looking at the circuit judge who supplied the most clerks for each Justice as of O.T. 2006, Justice Scalia had chosen 18 percent of all his clerks (fifteen out of eighty-three), and Justice Thomas 26.6 percent (seventeen out of sixty-four), from the chambers of Judge J. Michael Luttig of the Fourth Circuit-a former clerk of Justice Scalia when he was on the D.C. Circuit. Justice Kennedy had chosen 21.5 percent of his clerks (seventeen out of seventy-nine), and Justice O'Connor 11.0 percent (eleven out of one hundred), from Judge Alex Kozinski of the Ninth Circuit. Chief Justice Rehnquist never chose more than four of his clerks from any particular circuit judge. As for the liberals, Justice Ginsburg has taken 11.1 percent of her clerks (six out of fifty-four), and Justice Stevens 6.5 percent (six out of ninety-two), from the chambers of Judge David S. Tatel of the D.C. Circuit. Justice Breyer has taken 18.0 percent of his clerks (nine out of fifty) from Judge Guido Calabresi of the Second Circuit, while Justice Souter has taken 12.3 percent of his clerks (eight out of sixty-five) from Judge Michael Boudin of the First Circuit.
214. id.
215. The practice of hiring from "feeder judges" appears to have originated with Justice Brennan, who took twelve of his 109 clerks from Judge J. Skelly Wright of the D.C. Circuit and another twelve from Judge David Bazelon, also of the D.C. Circuit. Justice Marshall also took ten of his eighty-eight clerks from Judge Wright. id. For further discussion of "feeder" judges,see PEPPERS, supra note 7, at 31-34;
216. WARD & WEIDEN, supra note 9, at 76-85.
217. See PEPPERS, supra note 7, at 200-03 (describing Justice Thomas's practice of having current clerks meet with applicants and Justice Kennedy's clerk selection committee);
218. WARD & WEIDEN, supra note 9, at 61-63 (describing involvement of clerks in selection process, and Justice Kennedy's clerk selection committee comprised of his son Gregory, a New York attorney, and a number of former clerks).
219. Tony Mauro, Clerks Follow New Path to High Court: In Break with Past, Majority Have Had Work Experience, LEGAL TIMES, Oct. 21, 2002, at 1.
220. id. (noting that the "time-honored path" for law clerks is a lower court clerkship, immediately followed by a position at the Supreme Court.").
221. From 1940 through 1989, 304 out of the 1,005 clerks for whom information is available served in academia. A total of 1,084 clerks served during these decades. Supreme Court Clerks Data Set, supra note 10.
222. Notre Dame Law School (Roman Catholic) (4), J. Reuben Clark Law School at Brigham Young University (Church of Jesus Christ of Latter Day Saints) (2), and Pepperdine University School of Law (Churches of Christ) (1).
223. id.
224. George Mason University School of Law (2). id. On the conservative character of George Mason, see TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 207-16.
225. Five of Brandeis's twenty-one clerks spent the majority of their careers at Harvard, one at Yale, and one at Northwestern. Brandeis did not encourage his clerks to teach only at elite schools, and a number of them, such as Willard Hurst, spent their careers at nonelite schools such as Wisconsin, while others, such as Louis Jaffee, began their careers at nonelite schools such as Buffalo. Of Frankfurter's thirty-seven clerks, seven taught at Harvard, two at Columbia, two at New York University, two at the University of Chicago, two at Yale, and one each at Georgetown and the University of Pennsylvania. Supreme Court Clerks Data Set, supra note 10.
226. For these purposes, elite schools are defined in the same fashion as above. See supra note 97. Of the total of 1,005 clerks from this period for whom information is available, 181 spent the majority of their careers teaching at one or more elite schools. id.
227. id.
228. This phenomenon was noted by one of its foremost exponents, Chief Justice John Roberts, while he was a judge on the U.S. Court of Appeals for the D.C. Circuit. John G. Roberts, Jr., Oral Advocacy and the Re-emergence of a Supreme Court Bar, 30 J. SUP. CT. HIST. 68, 77 (2005);
229. see also KEVIN T. MCGUTRE, THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY 22- 25 (1993) ("[A]s the ranks of professional representatives began to swell in the nation's capital, so too did the reliance of litigants upon Washington-based Supreme Court counsel.");
230. Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 GEO. L.J. 1487,1497-1501 (2008) (examining the development of Supreme Court practice groups);
231. Joseph W. Swanson, Experience Matters: The Rise of a Supreme Court Bar and its Effect on Certiorari, 9 J. APP. PRAC. & PROCESS 175, 176-78 (2007) (examining the rise of Supreme Court practice groups and how they exemplify "the degree to which Supreme Court practice has become dominated by a handful of repeat players");
232. Posting of Tom Goldstein to SCOTUS blog, The Expansion of the "Supreme Court Bar, "http://www.scotusblog.com/wp/the-expansion- of-the-supreme- court-bar/ (Mar. 2, 2006,11:32 EST).
233. Charles Lane, Former Clerks' Signing Bonuses Rival Salaries on the High Court, WASH. POST, May 15, 2006, at A15;
234. Tony Mauro, Big Bucks Used to Woo Clerks at High Court, LEGAL TIMES, June 21, 2004, at 1. For Justice Kennedy's comments, see Fiscal Year 2007Appropriations for the Supreme Court: Hearing Before the Subcomm. on Transp., Treasury, Hous. and Urban Dev., the Judiciary, D.C. of the H. Comm. on Appropriations, 109th Cong. 217 (2006) (testimony of Anthony M. Kennedy, Associate Justice of the United States Supreme Court) (asserting that the fact that Supreme Court clerks' sign-up bonuses and salaries are equal to the salaries of Supreme Court justices "devalues the position of the judiciary") and Judicial Security and Independence' Hearing before the Senate Comm. on the Judiciary, 110th Cong. 8 (2007) (testimony of Anthony M. Kennedy, Associate Justice of the United States Supreme Court) ("Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before.").
235. Karen O'Connor & John R. Hermann, The clerk connection: appearances before the Supreme Court by former law clerks, 78 JUDICATURE 247, 249 (1995) (finding that former clerks are more active before the Supreme Court than non-clerks);
236. Tony Mauro, New Study Suggests Veteran Advocates Sway Supreme Court, LEGAL TIMES, Oct. 22, 2007, at 1 C'[M]ore and more of the Court's cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form.");
237. Emma Schwartz & Tony Mauro, Firms Buying their Way into an Exclusive Club, LEGAL TIMES, Mar. 20, 2006, at 1 (noting a trend among top law firms to bulk up their Supreme Court and appellate practices);
238. Tony Mauro, Arguing on High: An Appealing Practice, LEGAL TIMES, Oct. 9, 2000, at 14 (examining emerging Supreme Court practice groups, "most of them populated by former Court law clerks and alumni of the [Solicitor General's] office").
239. As late as the 1980s, New York corporate practices and specialized appellate practices (mostly centered in Washington, D.C.) achieved rough parity in hiring former clerks, and few (if any) firms hired more than five clerks in any particular decade. Both the D.C. firm Covington & Burling and the New York firm Cravath, Swaine, & Moore hired five clerks who served on the Court between 1980 and 1989, while New York corporate firms Skadden, Arps, Slate, Meagher & Flom and Debevoise & Plimpton joined the appellate practices of Kirkland & Ellis and Morrison & Foerster in hiring four. This parity disappeared in the 1990s; the appellate practices of Sidley
240. Austin, Kellogg Huber, WilmerHale, Jones Day, Kirkland & Ellis, and Williams & Connolly each hired more than ten clerks who had served on the Court in the 1990s, while the New York corporate firm Sullivan & Cromwell hired eight, Davis Polk & Wardwell seven, and Debevoise and Skadden four each. Since 2000, the New York firms have almost entirely left the market, with Sullivan & Cromwell hiring four clerks and Wachtell, Lipton, Rosen & Katz hiring three who served between 2000 and 2007. Supreme Court Clerks Data Set, supra note 10.
241. Richard Lazarus names nineteen firms as members of the private Supreme Court bar: Sidley Austin, Mayer Brown & Piatt, Jenner & Block, Kirkland & Ellis, Hogan & Hartson, Covington & Burling, WilmerHale, Jones Day, Gibson, Dunn & Crutcher, Morrison & Foerster, O'Melveny & Myers, Latham & Watkins, Quinn Emmanuel, Baker Botts, Akin Gump Strauss Hauer & Feld, Fulbright & Jaworski, the two-person firm Farr & Taranto, and two spin-offs of Mayer Brown: Kellogg, Huber, Hansen, Todd & Evans, and Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Lazarus, supra note 112, at 1499-1502. Of these, Quinn Emmanuel, Fulbright & Jaworski, Farr & Taranto, Akin Gump, and Robbins, Russell do not hire large numbers of clerks. Of the fourteen firms remaining, ten show polarized patterns in their hiring of former clerks, as discussed below; only Mayer Brown, Covington & Burling, Latham & Watkins, and Kellogg Huber do not show such patterns.
242. Supreme Court Clerks Data Set, supra note 10. Starr, who had previously served as Solicitor General and as a federal appellate judge, brought two clerks from conservative chambers- Christopher Landau (O.T. 1991-92, Scalia and Thomas) and Paul T. Cappuccio (O.T. 1998, Kennedy)-to start Kir Hand's practice group. Al Kamen, In Dining Room, At Least Symbolism's Free, WASH. POST, Feb. 5,1993, at A23.
243. Since assuming the deanship of Pepperdine University Law School in 2004, Starr has continued to solidify his ties with the conservative chambers.
244. See, e.g., Tony Mauro, Starr's Law School to Employ Alito, Scalia, LEGAL TIMESVV, Apr. 2, 2007, at 7 (describing Starr's dual role as litigator in the Supreme Court and summer employer of Justices Alito and Scalia at Pepperdine).
245. Supreme Court Clerks Data Set, supra note 10.
246. Neil A. Lewis, Contesting the Vote: The Lawyers: Trusted Litigator For Republicans, N.Y. TIMES, Dec. 1, 2000, at A31.
247. Jeffrey Leib, Denver Lawyer Working as Point Man for Bush: Friends and Co-Workers Describe Fred Bartlit as a Legal 'Swat Team,' DENVER POST, Nov. 25, 2000, at B-01;
248. James Warren, Chicagoan Shows Killer'Instincts as Bush Lawyer, Cm. TRIB., Dec. 10, 2000, PERSP., at 2.
249. U.S. 98 (2000);
250. Supreme Court Clerks Data Set, supra note 10.
251. Mary Flood, Election 2000: Bush Legal Team Adds Two Local Litigators, HOUSTON CHRON., Nov. 29, 2000, at A21;
252. Julie Mason, Election 2000: Cavalry Rides to Bush's Rescue: Old Guard Baker Mends Fences, Could Save Election, HOUSTON CHRON., Dec. 5, 2000, at Al.
253. Tony Mauro, Clerks Jump-Start a High Court Practice, LEGAL TIMES, Oct. 11, 2004, at 1; Schwartz & Mauro, supra note 114, at 1.
254. Three clerks served with Chief Justice Rehnquist and one each with Justice Scalia and Chief Justice Roberts. One clerk served with Justice Breyer and two with Justice O'Connor. Supreme Court Clerks Data Set, supra note 10.
255. Tony Mauro, Wilmer, Cutler Signs Top Free Agent, LEGAL TIMES, July 9, 2001, at 3.
256. Supreme Court Clerks Data Set, supra note 10.
257. Susan Beck, How O'Melveny & Myers Built a Litigation Powerhouse, LEGAL TIMES, Jan. 12, 2004, at 1.
258. That one clerk served with Justice Scalia. Four of O'Melveny's hirees served with Justice Ginsburg, three with Justice Souter, two with Justice Breyer, and one each with Justices O'Connor and Stevens. Supreme Court Clerks Data Set, supra note 10.
259. id.
260. From 2000 to 2007, the five conservative firms named above-Kirkland & Ellis, Bartlit Beck, Baker Botts, Jones Day, and Sidley Austin-hired a total of forty-three former clerks, while the three named liberal firms hired thirty-four, twenty-eight of whom were hired by WilmerHale.
261. id.
262. No centralized source lists each firm's totals of Supreme Court oral arguments. Many of the firms do not keep such statistics, at least for public release; others have begun maintaining them only in recent years. Moreover, official reporters of Supreme Court decisions do not consistently list the firm affiliations of counsel arguing before the Court. Therefore, statistics acquired through databases like Westlaw or Lexis will be incomplete. Here, we have listed statistics received from the firms whenever possible. If we have not been able to acquire such statistics, we have relied upon totals from Westlaw searches, with the caveat that these numbers only represent a minimum number of cases argued by the firm during the time period listed and may significantly underestimate the actual total.
263. Sidley Austin LLP, Supreme Court Cases in Which the Firm has Filed Merits Briefs, 1985-2006, http://www.sidley.com/en-US/appellatemeritscases/ linkedContent.aspx Oast visited Oct. 8, 2009).
264. E-mail from Anu Vermani, Bus. Dev. & Commc'n Manager, Jones Day, to Michael Jo, J.D. Candidate, N.Y. Univ. Sch. of Law (Jan. 16, 2009, 10:43:59 EST) (on file with authors).
265. These figures were obtained by searching for each law firm in Westlaw's "All U.S. Supreme Court Cases" database with the date restrictions described above.
266. Hogan & Hartson LLP, Supreme Court Cases Argued by Hogan & Hartson Attorneys, October 1993-October 2006 Terms, http://www.hhlaw.eom/ files/upload/U.S.%20Supreme%20 Court%20arguments-1993-2005%20Terms.pdf Oast visited Oct. 8, 2009).
267. This figure was obtained by searching for the firm in Westlaw's "All U.S. Supreme Court Cases" database with the date restrictions described above. Eleven of those cases were argued by Theodore B. Olson. Gibson Dunn & Crutcher LLP, Theodore B. Olson, Selected Appellate Litigation, http://www.gibsondunn.com/publications/Documents/01sonT-Selected- AppLitigation2007.pdf Oast visited Oct. 8, 2009).
268. For a complete list of cases argued by Mayer Brown attorneys,
269. see Mayer Brown LLP, Cases Argued in The Supreme Court by Mayer Brown Attorneys, http://www.appellate.net Oast visited Oct. 8, 2009). Reliable statistics are not available for other firms with leading Supreme Court practices such as Latham & Watkins, Williams & Connolly, Covington & Burling, Akin Gump Strauss Hauer & Feld, and Farr & Taranto, or the conservative newcomers Bartlit Beck and Baker Botts. Totals derived from searches on Westlaw are suspiciously low for these firms, suggesting incomplete reporting. Baker Botts notes that its lawyers have argued twenty-five cases before the Supreme Court, but does not give dates. Baker Botts LLP, Litigation: Appellate and Supreme Court Practice, http://www.bakerbotts. com/departments/practice-detail.aspx?id= bl396b4c-3177-4087-97af-28016f01b754 Oast visited Oct. 8, 2009).
270. Kenneth W. Starr, Rule of Law: Supreme Court Needs a Management Revolt, WALL ST. J., Oct. 13, 1993, atA23.
271. id.
272. Richard POSNER, quoted in Tony Mauro, The Hidden Power Behind the Supreme Court- Justices Give Pivotal Role to Novice Lawyers, U.SA. TODAY, Mar. 13,1998, at 1A.
273. Lazarus, supra note 112, at 1531-32. According to Michael Greve of the American Enterprise Institute, O.T. 2005 featured twenty business-related cases out of seventy-two signed opinions, and O.T. 2006, twenty-five out of sixty-seven. Michael S. Greve, Does the Court Mean Business?, FEDERALIST OUTLOOK, Sept. 19, 2007, available at http://www.aei.org/outlook/26834.
274. Adam H. Charnes & James J. Hefferan, Jr., Last Term's High Court Rulings Mostly Pro- Corporation, NAT*L L.J., Aug. 6, 2008, at 9;
275. Tony Mauro, High Court Reveals a Mind for Business, LEGAL TIMES, July 2, 2007, at 8;
276. Jeffrey Rosen, Supreme Court, Inc., N.Y. TIMES, Mar. 16, 2008, Magazine, at 38, 40;
277. David G. Savage, High Court is Good for Business, L.A. TIMES, June 21, 2007, at A-l.
278. But see Melissa Maleske, Pro-Business Myth, INSIDE COUNSEL, Sept. 2008, at 16 (criticizing Rosen's characterization of the Roberts Court as pro-business and ascribing seeming pro-business bias to stare decisis and strict approach to statutory interpretation).
279. One explanation is that during the administration of President George W. Bush, the Office of the Solicitor General-perennially the leading advocate before the Court-generally advocated for conservative policy positions. With a new Democratic administration, firms hiring conservative clerks may take up more cases in constitutional law, thereby further encouraging the political polarization of the Supreme Court bar.
280. U.S. 558 (2003).
281. U.S. 557 (2006).
282. U.S. 124 (2007).
283. U.S. 71 (2007).
284. S.Ct. 2229 (2008).
285. Id.; Lawrence, 539 U.S. 558.
286. For increasing amicus curiae filings by the larger firms of the Supreme Court bar, see Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA L. REV. 743, 826-27 (2000) and Lazarus, supra note 112, at 1512-14.
287. Brief for Sandra L. Banning as Amicus Curiae Supporting Petitioners, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (No. 02-1624). Petitioner Michael Newdow filed suit on behalf of his daughter;
288. Kirkland & Ellis successfully challenged his standing on behalf of her mother, Sandra Banning, a born-again Christian locked in a custody dispute with Newdow. Newdow, 542 U.S. at 8-10;
289. see Tony Mauro, The Case and the Controversy: How a Bitter Family Drama Threatens to Ensnarl a Major Constitutional Challenge Over the Pledge of Allegiance, LEGAL TIMES, Nov. 10, 2003, at 1 (discussing the family history and dynamic involved in Elk Grove).
290. Consolidated Brief for Lt. Gen. Julius W. Becton et al. as Amici Curiae Supporting Respondents, Grutter v. Bollinger, 539 U.S. 306 (2003) (Nos. 02-241, 02-516). Sidlry;s amicus brief in Grutter accorded with the position of many large corporations.
291. Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 CARDOZO L. REV. 1689 at 1719-20 (2005). In this respect, the firm's seemingly anomalous advocacy actually suited the preferences of the firm's client base.
292. To name two recent examples involving Jones Day: First, lawyers from the firm filed an amicus curiae brief in 2005 for Human Rights First, formerly the Lawyers Committee for Human Rights, in litigation surrounding the case of Jose Padilla. Brief for Human Rights First as Amicus Curiae Supporting Petitioner, Padilla v. Hanft, 547 U.S. 1062 (2006) (No. 05-533).
293. Second, a Jones Day partner represented the National Security Archive in its suit to force the Bush administration to recover email records of the Executive Office of the President. Citizens for Responsibilities & Ethics in Washington v. Executive Office of the President, 587 F. Supp. 2d 48 (2008) (consolidated case which included the action of National Security Archive v. Executive Office of the President);
294. Press Release, National Security Archive, Court Rejects White House on Missing E-mails (Nov. 10, 2008), http://www.gwu.edu/ ~nsarchiv/news/20081110/ index.htm.
295. Jones Day partner Michael Carvin represented the Republican Party in Bush v. Gore. Brief of Petitioner, Bush v. Gore, 531 U.S. 98 (2000) (No. 00-949). He has also successfully defended California's Proposition 209 limiting affirmative action, and supported Ohio's 2003 constitutional amendment prohibiting same-sex marriage and homosexual civil unions. Vivia Chen, Rise of the Right: Pro Bono Isn't Just for the Bleeding Hearts Anymore. Very Quietly, Big Firms are Takingon Conservative Causes as Well, AM. LAWYER, July 2007, at 114, 117.
296. Lance v. Coffman, 549 U.S. 437 (2007). The case was brought by Colorado Republican voters, represented by Jones Day, objecting to a redistricting plan that would have benefited Democrats. Karen E. Crummy, Redistrict Challenge Flops in High Court: D.C. Justices Rebuff a GOP Appeal of a Denver Court's '02 Remapping of Colorado Congressional Districts, DENVER POST, Mar. 6, 2007, at B-04.
297. League of United Latin AM. Citizens v. Perry, 548 U.S. 399 (2006). Jones Day represented officials of the Republican Party of Texas. Linda Greenhouse, Justices Uphold Most Remapping in Texas by G.O.P., N.Y. TTMES, June 29, 2006, at Al.
298. U.S. 93 (2003).
299. Bipartisan Campaign Reform Act of 2002, 2 U.S.C.S. § 431 (LexisNexis 2009).
300. Stephen Labaton, Chief of F.T.C. to Resign; Bush Selects a Successor, N.Y. TIMES, May 12, 2004, at C2.
301. Jube Shiver, Jr., All Eyes on a New Antitrust Chief, L.A. TIMES, July 2, 2001, at C3.
302. BlCKEL, supra note 8, at 115.
303. See TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 78-79, 88-89, 221, 226 (discussing the evolution of conservative public interest law and its increasing influence on legal change through agenda control). For scholarly analysis of agenda-setting on the Supreme Court,
304. see, for example, H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES Supreme COURT (1991);
305. Robert L. Boucher, Jr. & Jeffrey A Segal, Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court, 57 J. POL. 824 (1995);
306. Gregory A Caldeira, John R. Wright & Christopher J.W. Zorn, Sophisticated Voting and Gate-Keeping in the Supreme Court, 15 J.L. ECON. & ORG. 549 (1999);
307. Gregory A Caldeira & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 1109 (1988).
308. Chen, supra note 155, at 114, 117 (showing that "big firms now regularly champion libertarian causes" with the support of "influential groups like the Federalist Society, religious organizations, and pro bono advocates" and that conservative public interest law organizations "are making a determined play for a piece of the legal establishment's pro bono pie").
309. As noted in footnote 64, there is no centralized record of former Supreme Court clerks employed by the Executive Branch, and it is therefore likely that these figures are incomplete.
310. Statistics quoted in the following paragraphs differ from those in Figure IV due to the fact that some former clerks entered government service in the Bush and Clinton administrations long after their Justices left the bench, and accordingly do not count toward the percentages listed in the text for current or recently serving Justices.
311. The Clinton administration hired ten clerks from Justice O'Connor's chambers, for a total of twenty-five out of ninety-six clerks (26.0 percent) from Republican appointees excepting Justice Souter. Supreme Court Clerks Data Set, supra note 10.
312. Vanessa Blum, How to Get a Job at Justice, LEGAL TIMES, Apr. 25,2005, at 1.
313. For an account of the controversy, see Bruce A. Green & Fred C. Zacharias, "The U.S. Attorney Scandal" and the Allocation of Prosecutorial Power, 69 OHIO ST. L.J. 187, 204-07 (2008).
314. For criticism of hiring in the Honors Program, see OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING IN THE DEPARTMENT OF JUSTICE HONORS PROGRAM AND THE SUMMER LAW IZNTERN PROGRAM (2008), available at http://www.usdoj.gov/oig/special/s0806/final.pdf.
315. For criticism of hiring in the Civil Rights Division, see OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING AND OTHER IMPROPER PERSONNEL ACTIONS IN THE CIVIL RIGHTS DIVISION (2008), available at http://www.usdoj.gov/oig/ spedays0901/final.pdf.
316. Attorneys in the above-listed offices are classified by the Office of Personnel Management as Schedule C positions, which "are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials." 5 C.F.R. § 213.3301(a) (2009). Other attorneys hold Schedule A positions, "which are not of a confidential or poUcy-determining character."
317. id. § 213.3101. Schedule C attorneys are commonly called "political" attorneys, while Schedule A attorneys are known as "career" attorneys. The Office of Inspector General declares that Department of Justice policy prohibits "using political affiliations and may also prohibit using certain ideological affiliations in assessing candidates for career attorney positions," but notes no such restrictions for assessing political attorneys. OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY GENERAL 15 (2008), available at http://www.usdoj.gov/oig/special/s0807/final.pdf.
318. Lazarus, supra note 112, at 1497-1501; Schwartz & Mauro, supra note 114, at 22.
319. Supreme Court Clerks Data Set, supra note 10.
320. See TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 70 (discussing the need for conservatives to foster links in law schools in order to compete with liberals in the public interest law arena). From an early date, conservative thinkers recognized the need for practitioners "to produce law review articles, to sponsor and provide speakers for law-related seminars, to work in concert with other legal scholars, and to coordinate with think tanks within the movement," which are tasks commonly performed by liberal academics. id. at 81.
321. See NANCY L. ROSENBLUM, ON THE SIDE OF THE ANGELS: AN APPRECIATION OF PARTIES AND PARTISANSHIP 7 (2008) ("[Partisanship fuels collective discussion of men and measures; partisans are the agents of'trial by discussion.'").
322. See Evan Caminker, A Glimpse Behind and Beyond Grutter, 48 ST. LOUIS U. L.J. 889, 894- 95 (2004) (describing focus of litigators in Grutter v. Bollinger on Justice Sandra Day O'Connor).
323. The assumption underlying the last sentence in the text is that a transactional lawyer would be more likely to be a consensus builder, all other things being equal, than a litigator who has spent a career advancing a partisan agenda.
324. For an example of a strategy of narrowly appealing for a fifth vote, see Caminker, supra note 177, at 894-95.
325. By the time U.S. NEWS & World Report began its rankings of law schools in 1987, Yale had displaced Harvard from the top spot and would continue to remain there; in 1990, Harvard also was outranked by Stanford, Columbia, and the University of Chicago. Since then it has mostly remained in the second spot, occasionally displaced by Stanford.
326. Before 1987, the only widely published rankings of law schools were assembled by Jack Gourman, a retired professor of political science. Gourman published his first rankings of undergraduate institutions in 1967, but did not assemble a separate volume for graduate and professional schools until 1980. Between 1980 and 1985 his top ten list of law schools included Harvard, the University of Michigan, Yale, the University of Chicago, the University of California at Berkeley, Stanford, Columbia, Cornell, Duke, and the University of Pennsylvania; only the last four schools changed positions in any given year. Gourman's rankings were met with considerable controversy because of his refusal to publicize his methodology.
327. JACK GOURMAN, THE GOURMAN REPORT: A RATING OF GRADUATE AND PROFESSIONAL PROGRAMS IN AMERICAN AND INTERNATIONAL UNIVERSITIES 75 (Nat'l Educ. Standards, 3d REV. ed. 1985).
328. See MORTON J. HORWTTZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 84 (1998) (noting that Justice Frankfurter's retirement created a liberal majority and a shift away from the judicial restraint he espoused);
329. BERNARD SCHWARTZ, INSIDE THE WARREN COURT 199-200, 206- 09 (1983) (discussing Chief Justice Warren's role in the Court's growing activism following Justice Frankfurter's resignation).
330. U.S. 533 (1964).
331. U.S. 421 (1962).
332. U.S. 430 (1968).
333. U.S. 409 (1968).
334. U.S. 241 (1964).
335. 187. 372 U.S. 335 (1963).
336. U.S. 436 (1966).
337. See, e.g., ARCHIBALD Cox, THE WARREN COURT: CONSTITUTIONAL DECISION AS AN INSTRUMENT OF REFORM 88 (1968) (praising the Warren Court for "enabl[ing] our civilization to give a vastly better account of itself);
338. ANTHONY LEWIS, CLARENCE EARL GIDEON AND THE SUPREME COURT 155 (1972) (explaining that Gideon's victory in Gideon v. Wainwright "shows that the poorest and weakest of men.. can take his cause to the highest court in the land and bring about a great change in the law"); Yale Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New"Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REV. 59, 63 (1966) (answering the Miranda dissents by arguing that it may be a departure from recent precedents, but that it is faithful to old principles and is not "a thunderbolt from the blue").
339. See, e.g., BICKEL, POLITICS AND THE WARREN COURT, supra note 70, at 206-07 (criticizing Engel v. Vitale, a school prayer case, because it means that "just about anything with the word 'God' in it would also be [unconstitutional]") ;
340. PHILIP B. KURLAND, POLITICS, THE CONSTITUTION, AND THE WARREN COURT 80-82 (1970) (arguing that Miranda is a "highly overrated opinion" from the perspective of both supporters and critics, because it merely required state criminal processes to adhere to the same standards as the federal criminal forum).
341. See MARY C. BRENNAN, TURNING RIGHT IN THE SIXTIES: THE CONSERVATIVE CAPTURE OF THE GOP 81 (1995) (noting that conservatives in 1964 "had already won the war for control" of the Republican Party);
342. RICK PERLSTEIN, BEFORE THE STORM: BARRY GOLDWATER AND THE UNMAKING OF THE AMERICAN CONSENSUS xi-xv (2002) (chronicling Goldwater's loss to Lyndon Johnson in the 1964 election, despite the fact that conservatives dominated Congress at the time, and describing the 1960s as "[the] decade when the polarization began").
343. See ALLEN J. MATUSOW, THE UNRAVELING OF A MERICA: A HISTORY OF LIBERALISM IN THE 1960 310, 340-42 (1984) (noting those who participated in the protests were attempting to achieve a more moral society through direct action);
344. JAMES MILLER, DEMOCRACY IS IN THE STREETS: FROM PORT HURON TO THE SIEGE OF CHICAGO 172-74 (2d ed. 1994) (discussing how student radicals distinguished themselves from "corporate" and " establishment" liberalism).
345. For discussions of how President Nixon's 1968 campaign linked criminal justice and the Warrant Court,
346. see, for example, DONALD GRIER STEPHENSON, JR., CAMPAIGNS AND THE COURT: THE U. S. SUPREME COURT IN PRESIDENTIAL ELECTIONS 180-82 (1999) and Cornell W. Clayton & J. Mitchell Pickerill, The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court's Criminal Justice Jurisprudence, 94 GEO. L.J. 1385, 1399-1400 (2006).
347. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U. S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II 236-38, 250-52 (5th ed. 2007) (discussing political context of Nixon appointments).
348. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 36 (1992) (arguing that "too few law professors are producing articles or treatises that have direct utility for judges, administrators, legislators, and practitioners").
349. TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 91-101,192-99,204-07.
350. Simon Chesterman, The Globalisation of Legal Education, 2008 SING. J. LEGAL STUD. 58, 63;
351. see also Mary C. Daly, The Structure of Legal Education and the Legal Profession, Multidisciplinary Practice, Competition, and Globalization, 52 J. LEGAL EDUC. 480, 488-89 (2002) (proposing auricular reforms in light of globalization);
352. John E. Sexton, "Out of the Box" Thinking About the Training of Lawyers in the Next Millennium, 33 U. TOL. L. REV. 189, 191, 198-99 (2001) (discussing the importance of globalization to law schools and means by which it can be integrated into curriculum).
353. See Chesterman, supra note 197, at 63-64 (providing examples of law schools which offer international double-degree programs).
354. See Richard H. Pildes, Conflicts Between American and European Views of the Law: The Dark Side of Legalism, 44 VA. J. INTL L. 145, 147 (2003) (noting the growing pressure from some within the legal and political professions to reduce the role of courts in the United States).
355. For discussions of Marshall's abolition of seriatim opinions in favor of a single opinion issued as the opinion of all,
356. see 2 GEORGE LEE HASKINS & HERBERT A. JOHNSON, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-15, at 105 (1981);
357. and William E. Nelson, The Province of the Judiciary, 37 J. MARSHALL L. REV. 325, 345 (2004).
358. U.S. CONST, art. Ill, § 1 ("The Judges, both of the Supreme and inferior Courts, shall hold their Offices during good Behaviour.").
359. See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB. POL'Y 769, 821 (2006) (noting members of the highest court in every other major democratic nation do not have life tenure);
360. John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 TEX. L. REV. 1671, 1672, 1676-77 (2004) (discussing the fixed terms justices of European constitutional courts serve and their ability to avoid the politicization of judging typical of American courts).
361. See TELES, CONSERVATIVE LEGAL MOVEMENT, supra note 75, at 175-78, 273 (arguing that despite movements to increase the number of conservatives in law school faculties, conservatives in the legal academy remain a small minority).
362. See id. at 268, 273 (noting that after numerous attempts conservatives have yet to succeed in displacing the liberal legal network).
363. See id. at 207-16 (describing how Manne took a unique approach to gaining conservative presence in higher education by "building an alternative institution from the bottom up rather than influencing the legal academy from the top down").
364. It is possible that conservatives, who often have made their greatest societal gains while out of power in government, id. at 148-49, will try more effectively than they have in recent years to infiltrate the academy.
365. See, e.g., BICKEL, supra note 8 , at 235-43 (arguing that the Justices should "immerse themselves in the tradition of our society" and then "seize and demonstrate" the "fundamental presuppositions" that they identify).
366. AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 92 (2005) ("Purposive interpretation pinpoints, along the range of sematic meanings of the legal text, a legal meaning that realizes the purpose of the norm.").
367. See, e.g., LAURENCE H. TRIBE, THE INVISIBLE CONSTITUTION 210-211(2008) C'[T]he enormous difficulties attending any effort to reach consensus [on the implicit norms of constitutional interpretation]. must not be permitted to deflect or deflate our efforts to engage one another in the attempt.").
368. This phrase was coined in a different context in CARL VON CLAUSEWTTZ, VOM KRIEGE bk. 1, ch. 1, § 24 (Berlin, Dummlers Verlag 1832), available at http://www.clausewitz.com/ readings/ VomKriegel832/BooklCh01VK.htm ("Der Krieg ist eine bloBe Fortsetzung der Politik mit anderen Mitteln.").
369. Vestiges of the Natural History of Creation, in 17 THE BIBLICAL REPERTORY AND PRINCETON RVEVIEW 505, 534 (Philadelphia, Princeton 1845), quoted in THOMAS JEFFERSON WERTENBACHER, PRINCETON, 1746-1896, at 233 (1946) (identifying Albert B. Dod as the author of the original work). The "Princeton Theology," a combination of Scottish common sense empiricism and Calvinist orthodoxy, arguably helped to shape the worldview of the Justices of the late nineteenth-century Supreme Court.
370. See MARK WARREN BAILEY, GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910, at 211 (2004) (explaining that the Justices "understandQ the law as a branch of moral science" and hence "approach social, political, and economic issues" with "antebellum moral philosophy" to ensure "adherence to the principles of truth and justice revealed by moral science");
371. THE PRINCETON THEOLOGY: SCRIPTURE, SCIENCE, AND THEOLOGICAL METHOD FROM ARCHIBALD ALEXANDER TO BENJAMIN BRECKINRIDGE WARFIELD, 1812- 1921, at 25 (Mark A. Noll ed., 2001) (explaining the elements of Princeton Theology generally).
372. After the trial of John T. Scopes in 1925, both Protestant fundamentalism and its broader worldview lost intellectual and popular legitimacy outside the social sphere of conservative evangelicalism.
373. See GEORGE M. MARSDEN, FUNDAMENTALISM AND AMERICAN CULTURE: THE SHAPING OF TWENTIETH-CENTURY EVANGELICALISM, 1870-1925, at 184-88 (1980) (noting that following the trial of Scopes the strength of the fundamentalist movement in urban centers rapidly diminished);
374. see also JOEL CARPENTER, REVIVE US AGAIN: THE REAWAKENING OF AMERICAN FUNDAMENTALISM 13-14 (1997) (noting the fundamentalist movement was dying throughout the country and especially among intellectuals by 1930).
375. In legal thought, the move away from fundamentalist conceptions of formalism was begun by the pragmatism of Oliver Wendell Holmes, Jr. and continued by the Legal Realists.
376. See, e.g., LOUIS MENAND, THE METAPHYSICAL CLUB 61-67 (2001) (discussing the disinterested manner in which Holmes made judicial decisions);
377. G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 219-22 (1993) (noting Holmes's belief that judges should consider and articulate the policy implications of their decisions).
378. WILLIAM E. NELSON, THE LEGALIST REFORMATION: LAW, POLITICS, AND IDEOLOGY IN NEW YORK, 1920-1980, at 1 (2001) (quoting THEODORE H. WHITE, THE MAKING OF THE PRESIDENT, 1968, at 214 (1969)).
379. By historical-institutional analysis the authors mean the process by which reform of institutions have future unintended consequences that can affect the delicate balance of incentives and disincentives for institutional effectiveness.
380. The Supreme Court forbids former clerks, or any other former employees of the Court, from participating "in any professional capacity in any case pending before this Court or in any case being considered for filing in this Court" for two years after separation. SUP. CT. R. 7.
381. The American Bar Association's Model Rules of Professional Conduct offer a narrower bar; they only bar lawyers who have formerly served with the government from representing clients in matters where the lawyer participated personally as a government employee or officer unless the relevant agency gives its consent to the representation; and forbids firms employing such lawyers from representing such clients unless the disqualified lawyer is screened from participation and remuneration, and the relevant government agency is notified. MODEL RULES OF PROF'L CONDUCT R. l.ll(a)-(b) (2002). The rationale for such a limited conflict-of-interest provision is that overly broad prohibitions on practice before government agencies would adversely affect attorneys' careers in private practice and deny them the ability to use the skills and knowledge gained in government service.
382. The Supreme Court of Canada follows a somewhat similar procedure. Applications are submitted directly to the Court rather than to individual Justices, who consider all applications. Justices request the Chief Justice's Office to arrange interviews, and in final selection the Chief Justice selects his or clerks first, then followed by each Justice selecting one clerk at a time in descending order of seniority. Mitchell Mclnnes, Janet Bolton & Natalie Derzko, Clerking at the Supreme Court of Canada, 33 ALTA. L. REV. 58, 63-64 (1994).
383. Clerk selection procedures at the state level vary widely, even among judicial districts within states. The highest courts of Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Nevada, New Hampshire, North Dakota, Oregon, Puerto Rico, and South Dakota require clerks to apply to the court rather than particular Justices; those applying to the Supreme Judicial Court of Massachusetts may express a preference for a particular Justice. On the New York Court of Appeals, Central Legal Research Staff clerks apply directly to the court, whereas personal law clerks apply to each judge, who sets his or her own procedures;
384. New Jersey uses a similarly bifurcated system. Courts in some states, such as California, employ staff attorneys rather than law clerks, while in other states, such as Oklahoma, state judicial clerkships are career positions.
385. See generally VT. LAW SCH., VT. PUB. INTEREST ACTION PROJECT, THE 2009 GUIDE TO STATE JUDICIAL CLERKSHIP PROCEDURES, available at http://www.law.virginia.edu/pdf/ judclerkguide2009.pdf (an annual guide to application procedures for state court judicial clerkships).
386. For attempts at reforming the selection process for federal judicial clerks,
387. see Edward R. Becker, Stephen G. Breyer & Guido Calabresi, The Federal Judicial Law Clerk Hiring Problem and the Modest March 1 Solution, 104 YALE L.J. 207, 225 (1994) (arguing that pushing back interviews for clerkship positions to a later date would improve the system);
388. Louis F. Oberdorfer & Michael N. Levy, On Clerkship Selection: A Reply to the Bad Apple, 101 YALE L.J. 1097, 1108 (1992) (advocating a matching system similar to that used in filling medical residency positions should be adopted);
389. Patricia M. Wald, Selecting Law Clerks, 89 MICH. L. REV. 152, 160- 163 (1990) (also advocating a matching system).
390. But see Alex Kozinski, Confessions of a Bad Apple, 100 YALE L.J. 1707, 1730 (1991) (arguing the current system of selecting clerks functions well and should not be discarded). For an empirical analysis of this market before and after the 2002 moratorium on hiring law students in their second year,
391. see Christopher Avery, Christine Jolls, Richard A. POSNER & Alvin E. Roth, The Market for Federal Judicial Law Clerks, 68 U. CHI. L. REV. 793, 805-45 (2001) and Christopher Avery, Christine Jolls, Richard A. POSNER & Alvin E. Roth, The New Market for Federal Judicial Law Clerks 2-4 (Yale Law Sch. Pub. Law & Legal Theory Research Paper No. 122, 2007), available at http://ssrn.com/ abstract=959696.
392. Perhaps to six. For similar proposals, see Jed Handelsman Shugerman, A Six-Three Rule- Reviving Consensus and Deference on the Supreme Court, 37 GA. L. REV. 893, 1011 (2003) (proposing a two-thirds rule in which the Supreme Court could only strike down a federal law by a six-three vote);
393. Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 IND. L.J. 73, 77 (2003) (analyzing both a supermajority rule and rule requiring individual Justices to presume a law's constitutionality as solutions to the Court's current trend of invalidating federal statutes).
394. Since 1977, a "merit selection" process has governed appointments to the New York Court of Appeals, the state's highest court. The governor must select his or her candidate from nominations by the statewide Commission on Judicial Nomination, charged with making merit-based recommendations.
395. See N.Y. CONST, art. VI, § 2; N.Y. JUD. LAW §§ 61-68 (McKinney 1983 & Supp. 1996) (establishing the commission as required under the state constitution).
396. See generally Luke Bierman, Preserving Power in Picking Judges: Merit Selection for the New York Court of Appeals, 60 ALB. L. REV. 339 (1996) (examining the merit-based system used by New York in appointing judges to the highest court).
397. Such is the practice on a number of foreign constitutional courts. For example, members of Germany's Federal Constitutional Court (the Bundesverfassungsgericht) are appointed for nonrenewable terms of twelve years and have a mandatory retirement age of sixty-eight; judges on the Constitutional Court of South Africa also serve for twelve years and must retire at seventy. Members of the Supreme Court of Canada must retire at age seventy-five, whereas those of the Australian High Court must do so at seventy. VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 489-91 (1999). Moreover, only one state, Rhode Island, has life tenure for the Justices of its highest court. Calabresi & Lindgren, supra note 202, at 772 n.9 (citing R.I. CONST., art. X, § 5).
398. For proposals to eliminate life tenure on the United States Supreme Court, see, for example, Roger C. Cramton, Reforming the Supreme Court, 95 CAL. L. REV. 1313, 1323-34 (2007) (arguing that terms on the Supreme Court should be limited by statute or constitutional amendment);
399. REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES (Roger C. Cramton & Paul D. Carrington eds., 2006) (a collection of essays from various authors on limiting life tenure).
400. But see, e.g., David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a "Golden Parachute", 83 WASH. U. L.Q. 1397, 1467 (2005) (arguing that life tenure should be retained but incentives ought to be created to entice Justices to retire voluntarily).
401. See, e.g., Edwards, supra note 195, at 36 (explaining that too many legal scholars are "ivory tower dilettantes" whose work serves no social purpose, and arguing that law schools should fill their ranks with more interdisciplinary scholars).
402. U.S. 306, 336-38 (2003) (approving a law school's admissions policy that considered the race of applicants, because considering race as just one factor in a "highly individualized, holistic view" of each candidate was sufficiently narrowly tailored). An administrative body, of course, would need to be created by enactment of federal or state legislation.
403. The Fairness Doctrine required broadcasters to present programming on controversial issues and allow a reasonable opportunity for the presentation of conflicting viewpoints. It was established by the FCC in 1949, Editorializing by Broad. Licensees, 13 F.C.C. 1246, 1257-58 (1949), affd, Red Lion Broad. Co. v. Federal Commc'n Comm'n, 395 U.S. 367, 400-01 (1969), rev'd, Syracuse Peace Council, 2 F.C.C.R. 5043, 5052 (1987).
404. See Jerome A Barron, What Does the Fairness Doctrine Controversy Really Mean?, 12 HASTINGS COMM. & ENT. L.J. 205, 244 (1989) (defending the doctrine by arguing that the principal form for exchanging ideas in the nation should not be wholly privatized).
405. But see Adrian Cronauer, The Fairness Doctrine: A Solution in Search of a Problem, 47 FED. COMM. L.J. 51, 75-77 (1994) (criticizing the doctrine for regulating the free market exchange of ideas). For background on the purpose and rationale of the doctrine,
406. see FORD ROWAN, BROADCAST FAIRNESS: DOCTRINE, PRACTICE, PROSPECTS: A REAPPRAISAL OF THE FAIRNESS DOCTRINE AND EQUAL TIME RULE 1-21 (1984).
407. Litigation could potentially assist in such oversight and the construction of new scholarly standards. However, there are compelling reasons for judges and legislators not to interfere with academic decisionmaking about what scholarship should be published. Judges would most likely decline to take on the burden of such cases, instead deferring to those who currently administer law reviews. Of course, judicial or legislative efforts to review what should be published in law reviews would raise profound issues of free speech and academic freedom; perhaps the First Amendment requires that distributed decisionmakers have freedom to determine what each of them should publish.
408. On the other hand, the First Amendment could be found to be in tension with the mandate of the Fourteenth that competing political views receive equal protection if it turns out to be the case that nearly all publishers refuse to print materials reflecting a particular political viewpoint. Traditional First Amendment law is clear that government may not engage in viewpoint discrimination, and can decide to grant access to competing groups seeking to use a public forum only on some neutral ground.
409. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 55 (1983) (holding that in a public forum the state cannot restrict access to speakers with a single viewpoint);
410. cf. Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 189-90 (1983) (distinguishing content-neutral from content-based communication restrictions). It should be noted that academic freedom is easier to defend if law is understood to be separate from politics and subject to objective, quasi-scientific analysis with which non-experts should not interfere. But, if law is nothing other than politics and policy choice, it is difficult to argue that academics, especially if they are paid by the public, should be permitted to engage collectively in arguing essentially one point of view, whether liberal or conservative.
411. See RONALD DWORKIN, LAW'S EMPIRE 45-86 (1986) (explaining that judges arrive at the "right" solution through various interpretive theories which ensure that the community treats all its members consistently, rather than by simply applying precedent).