The New York Times ran two stories this week looking at the increasing ideological polarization of the U.S. Supreme Court. These stories relied in large part on research by Washington and Lee University lecturer Todd Peppers and his recent studies looking at the influence of Supreme Court clerks on the decisions of the justices.
The stories begin by detailing how the current justices often choose clerks who previously clerked for a federal judge sharing their ideological leanings. The conservative members of the Court overwhelmingly choose clerks from judges appointed by Republican presidents. The same is true of the liberal members of the Court. In addition, the vast majority of Supreme Court clerks are selected from only the top law schools in the country.
This is significant, Peppers says, because Supreme Court clerks wield significant influence on the opinions issues by the Court. Over time, these selections have limited diversity of opinion on the Court and also made the Court more ideologically rigid.
In reaching this conclusion, Pepper’s and his coauthor used information about political party affiliations from more than 500 former clerks and standard measures of judicial ideology. Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study said, while the presence of additional conservative clerks pushes justices in the opposite direction.
The Times stories note that the rigid selection of clerks is a relatively recent phenomenon. For example, from 1975 to 1980, the selection of clerks was much more balanced with regards to political ideology. But only one justice split his selections equally during this period, Washington and Lee alumnus Lewis F. Powel, Jr. '29A, '31L. Appointed to the court in 1972, Powell’s judicial legacy was defined by a respect for both sides in a dispute and a desire to craft judicial opinions that struck a middle ground.
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