According to the papers of some U.S. Supreme Court justices released into the public domain by the Library of the U.S. Congress somehow only after the justices' deaths, some of the judicial decisions by the highest court in the country were made by law clerk who were never appointed by President or confirmed by Congress.
There was reportedly a symposium held in 2014 on the role of law clerks in judicial decision making, and that symposium was reportedly the first of its kind, even though law clerks as a class of supposedly auxiliary personnel of courts, were around for a very long time.
The above linked law review article shows the evolution of law clerks for Supreme Court justices, and their increasing control over the decisions.
Yet, 15 years prior to that law review, in a law review article written in 1999, a frank idea of the law clerk as a "hot commodity" and the "10th justice" was revealed.
How does a person become a clerk for a U.S. Supreme Court Justice?
The 2014 article claims that such a law clerk nearly always first serves as a law clerk of a "feeder judge" on a federal court of appeals, and that
This is a most interesting proposition, given the fact that:
- law clerks are increasingly considered as ADVISORS of judges;
- "feeder judges" are judges of lower jurisdiction from which decisions are appealed to the U.S. Supreme Court, which raises a lot of interesting questions if a law clerk/advisor of such a "feeder judge" becomes a law clerk/advisor of a U.S. Supreme Court justice
- to take or not to take a petition for a writ of certiorari from the "feeder judge's" court;
- how to decide that petition;
- to take or not take petitions for a writ of mandamus or prohibition, asking the U.S. Supreme Court, as a court of original jurisdiction, to make or prohibit the "feeder judge's" court to do something, and
- how to decide such petitions.
The interlinked 2011 article openly claims that the position of a law clerk involves, among other tasks, "ghostwriting" for the recruiting judges:
"The judges compete aggressively each year to recruit the best law students to work for them as clerks, prestigious positions that involve research, counsel and ghostwriting."
In 1999 a book was written by a former law clerk for a U.S. Supreme Court Justice depicting how law clerk influence justices to make politically driven decisions, and where the author wrote that:
"the justices 'resort to transparently deceitful and hypocritical arguments and factual distortions as they discard judicial philosophy . . . in favor of bottom-line results'".
That is an accusation of blatant political decision-making and the so-called "results-oriented jurisprudence", an unconstitutional practice of pre-judging cases before reviewing them on the basis of results desired by a judge on a certain topic.
A reviewer of the same book on Amazon.com reports that the U.S. Supreme Court allegedly "tightened its rules" in response to the book, here is the relevant portion of that review:
Interaction of certain U.S. Supreme Court justices with federal appellate court judges, such as Steven Breyer's and his brother-judge's attendance of 9th Circuit Alex Kozinski's "parties-with-booze-at-the-courthouse" raises issues whether Alex Kozinski is one of the "feeder judges", and is subject to a supreme deference (bias) of the judges whom he courts.
Notes of U.S. Supreme Court justice Blackmun became available at his death after he donated them to the Library of Congress. Such notes from other justices are unavailable, since they may not be making similar "gifts".
Justice Blackmun's notes reflect revealing interactions with the law clerks showing the law clerks' influencing the judge and ghostwriting for the judge.
Which raises a whole new host of issues - why the so-called "judicial deliberation" MUST be secret? What is the value of the secrecy if that secrecy may involve evidence of judicial disability.
When U.S. Supreme Court justices "serve" on the bench for life, and while the U.S. Supreme Court decides last-minute death penalty appeals, wouldn't it be more valuable to open those notes immediately after making them, in order for people whose life depends on the judge's decision, may see if the judge is biased, or if, instead of a judge, a young law clerk - never appointed by the President, never confirmed by he Senate - is making the decisions for and instead of the judge?
The influence of law clerks upon judges they "serve" becomes even more sinister when you consider the fact that such law clerks are "sponsored" by private attorney capital and by foreign capital for all-expenses-paid trips abroad.
Whenever a law clerk makes a decision FOR and INSTEAD OF the judge the law clerk supposedly "serves", you do not know who exactly that law clerk "serves":
- his own political views, or views of his influential family (I doubt that anybody but people from influential families get those positions);
- the views of those attorneys who, through non-profit organizations, sponsored the law clerk's trips abroad and want "return on investment";
- the views of those who lobbied the law clerk in any other way;
- the views of the future employer of the law clerk
When law clerks celebrate with champagne (as they did after Ted Bundy's execution) an execution of a person who asked to overturn his death penalty on an appeal - and got denied that relief BY THOSE LAW CLERKS, no matter who that person was, that is bias, and that is illegal.
And you will never know whether denying you relief is also celebrated with champagne, as a personal victory, by the bunch of young spoiled brats who deem themselves the "10th justices".
The way it is going, the number of judges must be changed to reflect the changes in the caseloads, to increase that number by the number of law clerks currently "serving" justices of the U.S. Supreme Court - and all other federal courts, and law clerk positions should be eliminated.
If judges cannot do their caseloads without law clerks, then the number of judges should be increased, and restrictions on judicial terms should be introduced. "Serving" well into Alzheimer's is not acceptable.
Ceding control of judicial decisions to youngsters who are not judges, is not acceptable.
If this country has money to pay clerks who influence judges, this country has money to pay for additional judges, at least, this country will then know that justice is not bought through the back doors of law clerks.
Only this way we can ensure that the judge who was confirmed by the Senate is actually the judge who authored your decision.
Otherwise, all of the so-called "judicial review" in this country, where judicial decisions are ghostwritten by unelected and unappointed and unconfirmed unknown people who are not judges, is a fake.