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Ulmschneider Y320 Judicial Politics
The agenda process of the Supreme Court is no doubt of a legal question but that does not mean that politics are not involved. Every Justice and every clerk of the court has certain political leanings that they are inclined to follow. To take politics out of the decision-making of the individual justices is impossible. It colors everything that you think, every opinion that you have is based is some part on how you were raised, your environment and the experiences that you have had. The first scholar said that ‘the clerks have become a Junior Supreme Court.’ I do not necessarily agree with this assessment. This comment portrays the clerks as having tremendous power. They cannot control their justice and the process has some checks although one cannot deny that the clerks do have a critical role. On page 70 of Deciding to Decide, Perry interviews a clerk and asks him/her how much influence, if any, that the clerks have on their justice. The clerk is pretty clear that ‘if he [justice] has been doing his job and has been on the Court that long, he damn well better have his views about what
the Constitution means.’ The clerk goes on to say that they think the clerks have more influence on their justices in areas that are less socially important and ‘we only had the opportunity to persuade him on an opinion here or there, because he had his own views on the major stuff.’ Some of the justices choose their clerks based on ideology which would be another reason that they probably do not have that much influence on the agenda. If they have the same ideology then it would be assumed that they would be choosing the same cases anyways. Not all justices hired clerks strictly on ideology, some hired not based on ideology but on a myriad of qualifications, chiefly what school they attended. A lot of the clerks interviewed by Perry in his book referenced themselves as “surrogates” of their particular justices. Most said that they thought that their justices just wanted the facts spelled out on a case, which they were to ‘act as the eyes and ears of the justice and supposed to winnow out cases as he would. And you would want to bring to his attention a particular case that your justice would want to push for cert (Perry pg. 75).’ Over the course of the term the clerks learn how what qualifications that their justices look for in granting cert. The clerks start to keep their eyes open for certain ‘cues’ that they believe that their justice might be looking for.
Perry talks about the cert. petition starting a communication process. ‘It is a process where one party is trying to send information, and another is trying to evaluate that information. The notion is that information is transmitted in basically two forms – indices and signals (Perry pg. 121).’ There are certain things that a petitioning attorney can emphasize, although this is a simple explanation because there are most certainly factors that might interest the justices that are out of their (attorneys) control, Perry talks about the former being “signals” and the latter being “indices (Perry pg 123).” There are also some indices where the interest is universal which include all capital cases, subject area, authors of the opinions, circuit conflict, a better case likely working through the system, and any action that involves the solicitor general. Perry formulates an opinion that ‘approximately 95 percent of all petitions are denied.’ He goes on to talk about the clerks started to come under the attitude that every cert. petition would be denied. Some of the clerks he interviewed said that they started to look for ‘every reason possible to deny cert. petitions (Perry pg. 218).’ A large majority of cases are not granted cert. on the basis of being frivolous. There are other certain types of cases that are treated as frivolous, in terms of preparing a memo. After working for a certain justice for a while, clerks start to know when their justice would deny, this they
would treat as “clear denies.” The non-pool clerks would see a wider variety of these because they were only working for one judge (pg. 226). But the question still remains are the scholars right? I do not agree with scholar #1. What exactly would this Junior Court provide that is different than what the clerks already perform? I agree with Justice Brennan who, when arguing against a National Court of Appeals, stated ‘how important he thinks the case selection process is and that it is a responsibility that clearly cannot be ceded to another court (pg. 67).’ I also do not agree with #3. I would think that the pool would be better at keeping clerks personal agendas from entering the cert. process. The non-pool clerks, I believe, have a little more influence than the pool clerks. This is attributed to the fact that nonpool clerks are only writing for one pair of eyes whereas the pool clerks are writing for multiple sets of eyes. The justices that are not involved in the pool could be swayed one way or the other by cert memos written by their clerks if they chose only to glance over them. The pool clerks on the other hand would have trouble getting all the justices to be influenced by their pool memos. This would then put me in the camp with scholar #2, ‘don’t fix what isn’t broken.’ It seems to me that this process works and that it has been tweaked over time by different Chief Justices’ who have seen deficiencies and have corrected
them as they have seen fit. The Supreme Court is basically a self-run and self-governed institution, at least as far as norms and guidelines. When some is not efficient in the minds of the justices, they change it. I think that if the Court sees the growing caseload as a problem that they will take the necessary steps to correct the process.