Judicial ghostwriting: Authorship on the Supreme Court

Cornell Law Review

Volumn 96, Issue 6, 2011, Pages 1307-1343

  Rosenthal, Jeffrey S ^a   Yoon, Albert H ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

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EID: 80054065926     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (71)

1. CHARLES E. WYZANSKI, JR., WHEREAS-A JUDGE'S PREMISES: ESSAYS IN JUDGMENT, ETHICS, AND THE LAW 61 (Greenwood Press 1976) (1965) (internal quotation marks omitted).
2. For example, each member of the House of Representatives is allowed eighteen permanent employees and up to four additional shared or part-time employees. See IDA A. BRUDNICK, CONG. RESEARCH SERV., RL 30064, CONGRESSIONAL SALARIES AND ALLOWANCES 3 (2009).
3. See TODD C. PEPPERS, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK 195 (2006).
4. See ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT 117 (2006) (describing the creation of the cert pool during the Burger Court in response to the growing caseload). Most Justices joined the cert pool with a few notable exceptions, such as Justice Brennan and Justice Stevens. See id. at 121, 125. Most recently, Justice Alito has opted out of the cert pool.
5. See Debra Cassens Weiss, Alito Opts Out of the Supreme Court Cert Pool, ABAJOURNAL. COM (Sept. 29, 2008, 8:42 AM), http://www.abajournal.com/news/ article/alito-opts-out-of-the-supreme-court-cert-pool/.
6. Sean Donahue, Behind the Pillars of Justice: Remarks on Law Clerks, 3 LONG TERM VIEW 77, 81 (1995).
7. See WARD & WEIDEN, supra note 5, at 205 (citing Transcriptions of Conversations Between Justice William O. Douglas and Professor Walter F. Murphy, Cassette No. 3, (Dec. 20, 27 1961), http://www.princeton.edu/~mudd/finding- aids/douglas/douglas3.html).
8. See EDWARD LAZARUS, CLOSED CHAMBERS: THE RISE, FALL, AND FUTURE OF THE MODERN SUPREME COURT 271 (Penguin Books 2005) (1998) ("[O]nly Justices Stevens and Scalia made it a regular practice to participate in first drafts.").
9. See Paul J. Wahlbeck et al., Ghostwriters on the Court?: A Stylistic Analysis of U. S. Supreme Court Opinion Drafts, 30 AM. POL. RES. 166, 172(2002), available at http://apr.sagepub.com/content/30/2/166;
10. see also Mark Tushnet, Thurgood Marshall and the Brethren, 80 GEO. L. J. 2109, 2112 (1992) [hereinafter Tushnet, Brethren] ("Marshall relied more heavily on his law clerks for opinion writing than did the other Justices during the early years of his tenure, but his practices were not wildly out of line with those of the others on the Court.").
11. See BERNARD SCHWARTZ, THE ASCENT OF PRAGMATISM: THE BURGER COURT IN ACTION 38 (1990) (internal quotation marks omitted).
12. David J. Garrow, The Brains Behind Blackmun, LEGAL AFF., May/June 2005 at 28.
13. Justice Oliver Wendell Holmes is attributed as saying, "I am always suspicious of an advocate who comes before the Supreme Court saying this is a court of justice; it is a court of law." EUGENE W. HICKOK & GARY L. MCDOWELL, JUSTICE VS. LAW: COURTS AND POLITICS IN AMERICAN SOCIETY (1993) (unnumbered page in front matter).
14. BERNARD SCHWARTZ, DECISION: HOW THE SUPREME COURT DECIDES CASES 52 (1996).
15. For a general discussion of the principal-agent model, see Joseph E. Stiglitz, Principal and Agent, in 3 THE NEW PALGRAVE: A DICTIONARY OF ECONOMICS 966, 966-71 (John Eatwell et al. eds., 1987).
16. Adam Liptak, A Second Justice Opts Out of a Longtime Custom: The 'Cert. Pool', N. Y. TIMES, Sept. 26, 2008, at A21, available at http://www.nytimes.com/ 2008/09/26/washington/26memo.html?scp=1&sq= A%20Second%20Justice%20Opts%20Out&st=cse.
17. For example, as of April 2009, 42% of President Obama's appointees to Senateconfirmed positions had served in the Clinton administration. See Peter Baker, It's Not About Bill, N. Y. TIMES, May 31, 2009, § 6(Magazine), at 47.
18. See, e.g., JOHN MICHELL, WHO WROTE SHAKESPEARE ? (1996) (providing a survey of arguments for alternative authors);
19. S. SCHOENBAUM, SHAKESPEARE'S LIVES (1993) (same);
20. James D. A. Boyle, The Search for an Author: Shakespeare and the Framers, 37 AM. U. L. REV. 625, 628-29 (1988) (noting debates on authorship of Shakespeare's works in connection with changing conceptions of authorship throughout history).
21. See Thomas Regnier, Comment, Could Shakespeare Think Like a Lawyer? How Inheritance Law Issues in Hamlet May Shed Light on the Authorship Question, 57 U. MIAMI L. REV. 377, 378 (2003) (noting that Shakespeare's frequent use of legal terms has authorship implications).
22. See FREDERICK MOSTELLER & DAVID L. WALLACE, INFERENCE AND DISPUTED AUTHORSHIP: THE FEDERALIST 263 (1964). During this same period, scholars also used statistical analyses to examine literature.
23. See generally ALVAR ELLEGARD, A STATISTICAL METHOD FOR DETERMINING AUTHORSHIP: THE JUNIUS LETTERS, 1769-1772, at 7 (1962);
24. LOUIS TONKO MILIC, A QUANTITATIVE APPROACH TO THE STYLE OF JONATHAN SWIFT 16-19 (1967);
25. A. Q. MORTON & JAMES MCLEMAN, PAUL, THE MAN AND THE MYTH: A STUDY IN THE AUTHORSHIP OF GREEK PROSE 13-14 (1966) (asserting, based on statistical analysis, that Paul did not author more than five of the fourteen letters attributed to him in the New Testament).
26. See Stephen J. Choi & G. Mitu Gulati, Which Judges Write Their Opinions (and Should We Care) ?, 32 FLA. ST. U. L. REV. 1077, 1111-16 (2005) (reasoning that judges who write their own opinions are more likely to cite their own opinions).
27. See, e.g., J. Daniel Mahoney, Foreword, Law Clerks; For Better or For Worse?, 54 BROOK. L. REV. 321, 339 (1988) (noting that "it is widely known that law clerks play a substantial role in opinion writing" and that the "clerks are often responsible for a judge's first draft").
28. For example, while each of Paul Krugman's columns in the New York Times typically focuses on the economic consequences of a specific government policy, the column's general subject matter is economic policy. See Archive of Columns by Paul Krugman, N. Y. TIMES, http://topics.nytimes.com/top/opinion/ editorialsandoped/oped/columnists/paulkrugman/index.html (last visited July 19, 2011).
29. See Kevin Burns, Bayesian Inference in Disputed Authorship: A Case Study of Cognitive Errors and a New System for Decision Support, 176 INFO. SCI. 1570, 1572-74 (2006).
30. See Oleg Seletsky et al., The Shakespeare Authorship Question 1 (Dec. 12, 2007) (unpublished manuscript) (on file with authors), available at http://www.cs.dartmouth.edu/~datamining/Final.pdf.
31. See Edoardo M. Airoldi et al., Whose Ideas? Whose Words? Authorship of Ronald Reagan's Radio Addresses, 40 POL. SCI. & POL. 501, 501-02 (2007);
32. Edoardo M. Airoldi et al., Who Wrote Ronald Reagan's Radio Addresses?, 1 BAYESIAN ANALYSIS 289, 291-92 (2006).
33. For a technical explanation of our approach, see Jeffrey S. Rosenthal & Albert H. Yoon, Detecting Multiple Authorship of United States Supreme Court Legal Decisions Using Function Words, 5 ANNALS APPLIED STAT. 283, 288-90(2011), available at http://projecteuclid.org/euclid.aoas/1300715191.
34. David Madigan et al., Author Identification on the Large Scale 2-3 (2005) (unpublished manuscript), available at http://www.stat.columbia.edu/~madigan/ PAPERS/.
35. See US Supreme Court Cases & Opinions, JUSTIA. COM, http://supreme.justia.com/us/year/ (last visited Apr. 4, 2011).
36. On Justia, for most volumes, the majority opinion and any dissenting or concurring opinions for each case are contained within a single HTML file. Our software program identifies the beginning and end of each majority opinion. We have made the software for downloading and analyzing these texts available. For a full description of the software program, see Jeffrey S. Rosenthal, Explanation of the Software, PROBABILITY. CA, http://probability.ca/usscj/README (last visited July 24, 2011).
37. Prior to 1941, approximately 10% of decisions included a dissent. Subsequently, in most Court terms, over 50% of decisions include a dissent. See LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 211-15 tbl.3-2 (3d ed. 2003).
38. See id. ("I [Justice Douglas] have written all my own opinions." (quoting Transcriptions of Conversations between Justice William O. Douglas and Professor Walter F. Murphy, Cassette No. 3, (Dec. 20, 27 1961), http://www.princeton. edu/~mudd/finding-aids/douglas/douglas3.html)).
39. See Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421, 1432 (1995) (deeming Cardozo "one of the finest judicial writers in our history").
40. See, e.g., LAZARUS, supra note 11, at 209 (describing Justice O'Connor's influence as the "crucial swing vote" in Tison v. Arizona, 481 U. S. 137 (1987));
41. Douglas M. Parker, Justice Kennedy: The Swing Voter and His Critics, 11 GREEN BAG 2d 317, 317-18 (2008) (describing Justice Kennedy as the successor to Justice O'Connor as the swing voter on the Court);
42. see also Lynn A. Baker, Interdisciplinary Due Diligence: The Case for Common Sense in the Search for the Swing Justice, 70 S. CAL. L. REV. 187, 199 n. 68, 202-03 (1996) (describing the influence of Justices Kennedy and O'Connor as swing voters).
43. B. Drummond Ayres Jr., The 'Swing' Justice: Byron Raymond White, N. Y. TIMES, June 30, 1972, at 16.
44. See Lee Epstein et al., The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U. S. Supreme Court, 91 CALIF. L. REV. 903, 935 (2003) (noting that in 2003 the Court consisted of "three former law professors-Justices Breyer, Scalia, and Ginsburg-who toiled for a total of forty-two years at Harvard (Breyer), Chicago (Scalia), and Rutgers and Columbia (Ginsburg) ").
45. See Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U. S. Supreme Court Opinions, 45 HOUS. L. REV. 621, 634-35, 639-42 (2008) (concluding that although clerks may have contributed to an increase in the length of majority opinions, "they do not appear to have been the driving force behind this change").
46. See, e.g., Paul M. Barrett, If There Is Blood in an Opinion, We Know Who Wrote It, WALL ST. J., Oct. 4, 1993, at A8 ("Owing to court secrecy, the public hears little of the clerks....");
47. See Richard Posner, Diary: Entry 2, SLATE (Jan. 15, 2002, 11:47 AM), http://www.slate.com/id/2060621/entry/2060742/.
48. See Tracey E. George & Chris Guthrie, Remaking the United States Supreme Court in the Courts' of Appeals Image, 58 DUKE L. J. 1439, 1440 (2009) (quoting sources noting the contraction of the Supreme Court's plenary docket alongside the growth of those of the federal courts of appeals).
49. See generally BRADLEY EFRON & ROBERT J. TIBSHIRANI, AN INTRODUCTION TO THE BOOTSTRAP (CRC Press 1998) (1993) (describing bootstrapping and providing applications).
50. See, e.g., Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 NW. U. L. Rev. 1483, 1485-87 (2007).
51. In 1957, Chief Justice Rehnquist famously argued, shortly after he clerked on the Supreme Court, that clerks-and predominantly those from the political Left-influence how Justices make decisions. William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U. S. NEWS & WORLD REP., Dec. 13, 1957, at 74, 74-75.
52. See 42 U. S. C. § 416 (l) (2006) (establishing a "normal retirement age" of sixty-five to determine eligibility for social security benefits).
53. The actual age at which Justices and all other Article III judges vest in their pensions is determined by statute. See 28 U. S. C. § 371 (2006). Under the current requirements, referred to as the Rule of 80, the Justice must be at least sixty-five years of age and have served at least ten years, and the age at retirement and years of service combined must be at least eighty.
54. See Albert H. Yoon, Pensions, Politics, and Judicial Tenure: An Empirical Study of Federal Judges, 1869-2002, 8 AM. L. & ECON. REV. 143, 147 (2006).
55. See David J. Garrow, Mental Decrepitude on the U. S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995, 995 (2000).
56. Tushnet, Brethren, supra note 12, at 2112.
57. Most analysis of judicial politics examines the voting patterns of the Justices based on the U. S. Supreme Court Judicial Database, created by Harold J. Spaeth. See THE SUPREME COURT DATABASE, http://scdb.wustl.edu/ (last visited April 11, 2011) ("The Supreme Court Database is the definitive source for researchers, students, journalists, and citizens interested in the U. S. Supreme Court. The Database contains over two hundred pieces of information about each case... [including] the votes of the Justices.");
58. see also The Genesis of the Database, THE SUPREME COURT DATABASE, http://scdb.wustl.edu/about.php (last visited April 11, 2011).
59. See Paul H. Edelman & Jim Chen, The Most Dangerous Justice Rides Again: Revisiting the Power Pageant of the Justices, 86 MINN. L. REV. 131, 186-88 (2001) (noting that Justice O'Connor and Justice Kennedy write more 5-4 opinions than their seniority would suggest).
60. See Richard Posner, Diary: Entry 1, SLATE, (Jan. 14, 2002, 11:46 AM) http://www.slate.com/id/2060621/entry/2060676/.
61. See, e.g., William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 271-74 (1998). (Pubitemid 128426690)
62. Mark Tushnet, Style and the Supreme Court's Educational Role in Government, 11 CONST. COMMENT. 215, 222 (1994).
63. See generally Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J. L. & PUB. POL'Y 769, 771-72 (2006) ("[T]he American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed...." (footnote omitted));
64. See U. S. CONST., art. III, § 1 (specifying only that Supreme Court Justices "shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office").
65. Cf. Elena Kagan, Confirmation Messes, Old and New, 62 U. CHI. L. REV. 919, 920-30 (1995) (reviewing STEPHEN L. CARTER, THE CONFIRMATION MESS (1994)) (arguing that the less acrimonious Senate confirmation hearings of the present also run the risk of "ceas[ing] to engage nominees in meaningful discussion of legal issues").
66. See WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 132-62 (1995).
67. Tracey E. George & Chris Guthrie, "The Threes": Re-Imagining Supreme Court Decisionmaking", 61 VAND. L. REV. 1825, 1827 (2008).
68. See 28 U. S. C. § 2072 (a) (2006) ("The Supreme Court shall have the power to prescribe general rules of practice and procedure... in the United States district courts... and courts of appeals.").
69. See Benjamin R. D. Alarie et al., Is Bigger Always Better? On Optimal Panel Size, with Evidence from the Supreme Court of Canada 2 (Univ. Toronto Legal Studies Research, Paper No. 08-15, 2011), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id= 1152322 ("[A]lthough the Supreme Court of Canada is composed of nine justices... it routinely sits in panels of five, seven, or nine justices.").
70. For example, the California Supreme Court and lower courts now have permanent law clerks. See Paul L. McKaskle, The European Court of Human Rights: What It Is, How It Works, and Its Future, 40 U. S. F. L. REV. 1, 27 n. 164 (2005);
71. see also THE SUPREME COURT OF CALIFORNIA: CONTAINING THE INTERNAL OPERATING PRACTICES AND PROCEDURES OF THE CALIFORNIA SUPREME COURT 4(2007), available at http://www.courtinfo.ca.gov/courts/supreme/iopp. htm (noting that "a judicial assistant and five staff attorneys" support each Justice).