Tuesday, June 11, 2013

The Sway of a Judicial Law Clerk

How much influence does a judicial law clerk have on the happenings of a court?

At the United States Supreme Court level, the Justices' clerks may be the key to judicial reform that keeps pace with current society.

Edward Lazarus, a former law clerk to Justice Harry Blackmun wrote a booked called Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court that was released in 1998. In the book, Lazarus "claims that clerks hold too much influence over their justices-- they succeed in persuading the justice to accept the clerk's view."

In a law review response piece to Lazarus's book, Sally J. Kenney, writes, "I think clerks do have a positive influence on the justices and the Court by bringing fresh ideas and providing a close-knit group wherein justices can reconsider their positions if they choose to do so. Being persuaded by clerks to reconsider a position or accept an argument is very different from being manipulated by them." 25 Law & Soc. Inquiry 185 (2000).

We may see Kenney's position play out with the same-sex marriage opinion that is expected from the court shortly as "[o]penly gay law clerks are now common in the chambers of both liberal and conservative justices."

"As the justices consider two major cases on same-sex marriage, with decisions expected this month, they are, of course, focused on legal issues. But students of the court say other factors may also play a role. In addressing for the first time whether the law must recognize lesbian and gay couples as families,” said David C. Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, “certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families.”


NYTimes -- Exhibit A for a Major Shift - Justices' Gay Clerks

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