Legal Commentary

At the VC, Eugene Volokh has a post discussing the reaction of Senators Kyl and Sessions to memos written by Elena Kagan while she served as a law clerk to Justice Thurgood Marshall.  Volokh tries to rescue Kagan from the charge that she somehow acted improperly by offering what appeared to be personal opinions on the cases she discussed, and by basing cert. recommendations on what she thought the majority would do with the pending case.

I agree with Eugene on a number of points.  This kind of behavior is relatively unexceptional for at least some clerks in some chambers -- perhaps especially at the Supreme Court level.  It hardly renders Kagan unqualified for a Supreme Court position.  There is nothing wrong with making a recommendation to grant or deny cert. on the basis of what five members of the Court will ultimately do rather than on whether four of them should grant cert.  And we should be reluctant to read too much into the opinions of a Supreme Court law clerk, who may be very smart but is almost certainly raw and inexperienced.  

That said, I do have two things to add. 

 First, Eugene offers a form of the defense that was given by and about William Rehnquist and his own memos as a law clerk, particularly his famous memo on desegregation: that it represented his boss's views, not his own.  Surely that is sometimes true, but I don't think we can state this as a general rule, especially when the memo appears for all intents and purposes to be written from the clerk's own point of view.  Of course justices often (but not always) hire clerks whose views they expect will be similar to their own, and there is nothing impermissible about that, whether or not it is necessarily the best hiring approach for law clerks.  But when a memo appears to speak in the clerk's own voice, I don't think we should assume the clerk was engaging in a particularly confusing act of ventriloquism.

Second, just because we think a practice is unexceptional and non-disqualifying, it doesn't mean we have to approve of it absolutely.  Some judges, and perhaps most Justices, hire with a clear eye toward clerks who share their own views -- both jurisprudential and political -- and can be relied on to be an active partisan for those views.  But it is not required (the appellate judge I clerked for in no way expected his clerks to share his political or jurisprudential views; he was old enough and confident enough to know his own views, didn't need a local cheering section, and didn't see his clerks as an armature in the culture wars) and isn't always a good idea.  As I said, law clerks -- interestingly, perhaps especially Supreme Court clerks -- can be quite callow.  They are superb at legal analysis, and that's where their primary focus should be.  Their inexperience, and the fact that they will generally only have one year to serve as a law clerk at the Supreme Court, may lead them to overpersonalize the usual left-right battles on the Court and see everything as a high-stakes game that demands partisanship.  And when they mix their jurisprudential analysis with political analysis, on which few people in any event have strong predictive abilities, they truly go out of their depth.  Again, I don't think any of this makes Kagan's memos exceptional or disqualifying.  But that doesn't prevent us from concluding that some of what law clerks have to say in these memos can come to seem callow and presumptuous, and that Supreme Court Justices ought to focus on the actual grounds of their clerks' developing expertise rather than encouraging them to state broad opinions that go beyond their capacities, and ought to discourage them from seeing their job as one of enlisting in an intramural combat between Justices.

I had similar thoughts about this earlier, when Linda Greenhouse's book Becoming Justice Blackmun was published and revealed similarly callow and political memos from some earlier law clerks, including some who rose very high in the profession in their subsequent years.  They can be found here.