Clinging to Power

Duke lawprof Paul Carrington, a “veteran observer” of the Supreme Court, argued in a New York Times op-ed that we’ve had at least a couple of justices who held on to their post just a wee bit past their expiration date.


It is said that Supreme Court justices used to direct a junior colleague to notify a dotty justice that it was time to resign. But as the influence of the court expanded in the second half of the 20th century, that practice seemed to disappear. Some justices, even those seriously unfit, have held on to their awesome power and status long beyond what was reasonable. William Rehnquist, who continued to work on cases in 2005 even as he was dying of cancer, is the most recent example. The celebrated Thurgood Marshall, who was 82 when he retired in 1991, was another.

Lucky for Carrington that dotty-dom isn’t limited to any particular philosophical view, though I don’t see why someone dying of cancer can’t think straight or why terminal mumbling is a certain sign of incompetence.  Of course, if there was a competency test for holders of “awesome power” in government, I hesitate to think of what that would do to the other two branches of government as well.  Thankfully, it wouldn’t apply to the quasi-awesome power of voters.

Having not been anywhere near as observant at the writer, I demur on the subject of who was dotty or incompetent, and note instead a tangential aspect of Carrington’s argument.


One reason justices are able to cling to power is that they have made their jobs relatively easy. For more than 80 years, they have been empowered to choose the cases they decide, and to leave many matters to lower courts without close oversight. When Congress largely eliminated the automatic right to a Supreme Court hearing as part of the Judiciary Act of 1925, it was assured that the court would continue to decide about 300 cases every year. That promise was soon forgotten. The justices are now down to about 75 cases a year. And the vital task of selecting those few cases is substantially delegated to young law clerks who also help write the justices’ opinions.

The reduction in caseload of 300 to 75 has it’s pluses and minuses.  While it means that the number of cases reviewed as absolutely minimal, it also limits the amount of damage the Supremes can do in any given term.  Given the clarity, scope and decisiveness of decisions recently, some of us wish they would be included in the Skadden sabbatical program.  It seems to me that Chief Justice Roberts could really use a year in the south of France.  No, really.

But the lines that grabbed me is the one about the “vital task of selecting those few cases is substantially delegated to young law clerks.”  Somebody has to go through the thousand upon thousand of cert petitions to handicap which cases get to the Sweet 75.  Why not leave the fate of the law in the hands of bunch of kids with this worldly experience of fruit flies?

The Supremes can’t decide it if their child-gatekeepers “ding” it.  What are the pressing issues in real life for real people?  Certainly 24 year olds know.  Mind you, these are the best and the brightest, coming from the tippy-top law schools, with sterling grades and law review editorship feathers in their propeller caps (which makes it very hard for the propellers to spin freely).  Yet it’s left to them, by virtue of weighty necessity, to vet the efforts of seasoned advocates to persuade the court that their cause is worthy of review.

What does the legal world look like through the eyes of the privileged few?  Do they understand the significance in the gap of legal representation for the poor?  Do they feel the sense of humiliation when a police officer takes liberties with a few salient details surrounding a stop that reveals an otherwise good person’s most embarrassing moment?  Legal issues span the gamut of human experience.  What do 24 year olds know about human experience?

I remember what I thought of myself when I was 24.  I was much smarter then.  I understood so much more then.  I was not inclined to believe that others might disagree with me and not be wrong.  It takes a few decent kicks in the teeth to come to the realization that my experience in life wasn’t share by all.  I still believed that there was something called “common sense,” and it was whatever I believed it to be.  Life at 24 was much clearer than it is now.

Perhaps the privileged few who obtain a Supreme Court clerkship are truly that much better, smarter, more worldly, than the rest of us.  After all, so many go on to greatness afterward, though there remains a cause and effect problem that makes a survey somewhat difficult to interpret.  When a legal career starts in hallowed halls, chances are slim that the privileged few will spend much time on the street or in the trenches like the rest of us, and will ultimately achieve their greatness with a narrow view of the world.  Some might argue that such a wondrous start in the law should prove a hindrance to their breadth of experience, critical to their future growth.  Yet it doesn’t seem to work that way at all.

As even a casual Supreme Court observer knows, there are issues surrounding a justice’s retirement that go beyond their being at the top of their game.  When you’re one of only nine votes, it matters that your replacement might shift the balance of power in a way that will undo your entire life’s work.  I can forgive dotty justice, whether Rehnquist or Marshall, for clinging, both to the job as well as the belief system they reflected.

But it’s the decision-makers without life tenure, with a mere year or two to change the world, who are subject to no scrutiny at all, who scare me.  After all, I was the only 24 year old who knew everything.  If only I still did.

5 comments on “Clinging to Power

  1. Amanda

    You bring up valid concerns/ideas in your blog today.

    However, your logic is not sound. First of all, where do you get the age of 24 for the average Supreme Court clerk? According to my math, students typically graduate from high school at the age of 18, then their undergraduate universities at the age of 22. Law school is three years, so it seems the youngest age of law school graduates is 25 (unless the student has skipped grades/graduated early along the way – though this is far from typical). But…the average age for incoming 1L students at law schools (which can vary from school to school, is typically 25 (check out the top law schools’ Web sites for their incoming 1L classes). Meaning, when the “average” student graduates from law school, they would be 28.

    Okay…so now let’s move onto who obtains Supreme Court clerkships. The majority of these clerks did not even obtain the clerkship straight out of law school. More often, a student clerks at a federal or appellate level, and then reaches the level of clerking for the Supreme Court. So, if these clerks were the average law school graduate age of 28…then clerk one year at a lower level…then become clerks for the Supreme Court…hmmm looks like those clerks are closer to the age of 30.

    Granted, there are exceptions in both directions of this “average” age, but 30 is a much closer estimate of the age of clerks than 24. I take it you have spent more of your life writing that completing basic math, but even a mere 22-year-old such as I could compute those numbers.

    Overall, I am not disputing your basic questioning of having clerks doing more judicial work at the Supreme Court level than the justices, but I feel a strong sense of blatant ageism throughout your argument. Not every “24-year-old” is unexposed to the “real world.” I do not sense my life background is anything close to yours, and I most definitely do not identify to a privileged background of which you speak. Your arguments contain basic assumptions from your own past as to the experiences/knowledge of a 24-year-old.

    “What do 24-year-olds know about human experience?” you ask? Are not 24-year-olds also humans…who have had experiences…so would know something of human experience? Let’s compare notes, I’d love to see if you’ve even had half the experiences I have had of “life,” and I am not yet even 24. Maybe I’m an exception though.

    I’d love to see your next argument on this topic attacking the age of the Supreme Court judges. Are they not “too old” to be making such important decisions for our nation? What if their mental skills are deteriorating, yet they hold such a high level of power? Maybe the 30-60 age range of our society should just rule the world? I don’t think the rest of us are qualified based on your standards. Perhaps we should be held at a lower value than the rest of society?

  2. SHG

    You know, you are absolutely right.  I forget sometimes that it takes some kids a little longer than others to find their way out of school.  I have to tell you a secret, though.  From my side of the table, 24 to 30 isn’t much of a stretch.  I realize to a 22 year old it seems like a lifetime, but given that they’ve never ventured far from the school hallways, it’s all pretty much the same.  It is blatant ageism by the way, and that’s just fine with me.

    As for your query, “should we be held as a lower value than the rest of society,” you betcha.  Do something worthwhile first, and then you get your chance to whine.  Until then, you’re barely qualified to spit.

  3. Joel Rosenberg

    Well, yeah. All depends on where you sit, as I learned from the Usual Source, long ago, when Rod’s sister told him she was marrying the Deacon:

    Rod was caught speechless. His sister looked at him and said, “What’s the matter, Buddy? Don’t you approve?”

    “Huh? Oh, sure! It’s . . . ” He dug into his memory, fell back on quoted ritual: “‘May the Principle make you one. May your union be fruitful.’”

    “Then come here and kiss me.”

    Rod did so, remembered to shake hands with the Deacon. It was all right, he guessed, but — well, how old were they? Sis must be thirtyish and the Deacon . . . why the Deacon was old — probably past forty.

    It did not seem quite decent.

    But he did his best to make them feel that he approved. After he thought it over he decided that if two people, with their lives behind them, wanted company in their old age, why, it was probably a good thing.

    But I digress.

  4. Rumpole

    Amanda wrote:

    I take it you have spent more of your life writing than completing basic math, but even a mere 22-year-old such as I could compute those numbers.

    Child, where did you learn to write that like. Have you been reading the archives of Simple Justice. I think you are a little young to be a curmudgeon.

  5. Eric Johnson

    Read SHG, Rumpole, etc. Don’t you guys know that the most powerful person on earth is a woman aged 21-24? How do you know commenter has to worthwile, spit, write, compute or anything else?

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