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Revisiting the Influence of Law Clerks on the U.S. Supreme Court's Loyola University Chicago Loyola eCommons Political Science: Faculty Publications and Other Works Faculty Publications 2014 Revisiting the Influence of Law Clerks on the U.S. Supreme Court’s Agenda-Setting Process Ryan C. Black Michigan State University, [email protected] Christina L. Boyd University of Georgia, [email protected] Amanda C. Bryan Loyola University Chicago, [email protected] Follow this and additional works at: https://ecommons.luc.edu/politicalscience_facpubs Part of the Political Science Commons Recommended Citation Black, Ryan C.; Boyd, Christina L.; and Bryan, Amanda C.. Revisiting the Influence of Law Clerks on the U.S. Supreme Court’s Agenda-Setting Process. Marquette Law Review, 98, 1: 75-109, 2014. Retrieved from Loyola eCommons, Political Science: Faculty Publications and Other Works, This Article is brought to you for free and open access by the Faculty Publications at Loyola eCommons. It has been accepted for inclusion in Political Science: Faculty Publications and Other Works by an authorized administrator of Loyola eCommons. For more information, please contact [email protected]. This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License. © Marquette University Law School, 2014 REVISITING THE INFLUENCE OF LAW CLERKS ON THE U.S. SUPREME COURT’S AGENDA-SETTING PROCESS* RYAN C. BLACK** CHRISTINA L. BOYD*** AMANDA C. BRYAN**** Do law clerks influence U.S. Supreme Court Justices’ decisions in the Court’s agenda-setting stage? For those Justices responding to their own law clerks’ cert recommendations, we expect a high degree of agreement between Justice and clerk. For non-employing Justices, however, we anticipate that the likelihood of agreement between clerk and Justice will vary greatly based on the interplay among the ideological compatibility between a Justice and the clerk, the underlying certworthiness of the petition for review, and the clerk’s final recommendation. Relying on a newly collected dataset of petitions making the Court’s discuss list over the 1986 through 1993 Terms, we find that Justices are more likely to follow a pool memo’s recommendation when it is consistent with the underlying cues present in the pool memo. In addition, our results indicate that Justices are significantly more likely to follow grant recommendations when the recommendation is provided by a clerk from an ideologically proximate chambers as opposed to one that is distant. * For helpful feedback on previous versions of this Article (and the original 2012 study), we thank Tim Johnson, Andrew Martin, Christine Nemacheck, Chad Oldfather, Todd Peppers, Harold Spaeth, Jim Spriggs, Justin Wedeking, Chris Zorn, and conference participants at Marquette University Law School. We owe a profound debt to Lee Epstein, Jeff Segal, and Harold Spaeth, who generously allowed us advanced access to the “raw” docket sheets and pool memoranda used in the original 2012 study. Finally, we gratefully acknowledge the research assistance of Eric Houghtaling, Jordan Hughes, Andrew Stone, and Dan Thaler, who helped us code these expanded data. ** Associate Professor of Political Science, Michigan State University (East Lansing, MI). Email: [email protected]. *** Assistant Professor of Political Science, University of Georgia (Athens, GA). Email: [email protected]. **** Assistant Professor of Political Science, Loyola University Chicago (Chicago, IL). Email: [email protected]. 76 MARQUETTE LAW REVIEW [98:75 These findings provide important information on the efficiency and effectiveness of the Court’s practice of pooling certiorari petitions among chambers and also suggest that political advisors, at the Supreme Court and in other institutions, are equipped to influence political elite decision making. I. INTRODUCTION ..................................................................................... 76 II. LAW CLERKS AS ADVISORS ................................................................. 78 A. Advisors in Politics ....................................................................... 78 B. Law Clerks as Advisors at Certiorari .......................................... 79 III. POLITICAL ELITES AS PRINCIPALS, ADVISORS AS AGENTS ............ 82 IV. SIGNALING THEORY: LAW CLERK INFLUENCE IN NON-AGENCY RELATIONSHIPS ......................................................... 85 V. HYPOTHESES .......................................................................................... 89 VI. DATA AND MEASUREMENT................................................................. 89 A. Methods and Results ..................................................................... 92 VII. DISCUSSION ......................................................................................... 101 A. Placing the Results in Context .................................................... 101 B. Normative Implications for the Cert Pool ................................. 102 C. Generalizing About Advisors Beyond the Supreme Court ..... 103 APPENDIX ..................................................................................................... 106 I. INTRODUCTION Do law clerks influence U.S. Supreme Court Justices’ decisions? This question is of unquestionable import. In a 2012 study published in American Politics Research, Black and Boyd examined this potential influence of law clerks on U.S. Supreme Court Justices’ decision making in the Court’s agenda-setting stage.1 While their findings were strong— indicating that law clerks serving in the Court’s certiorari (cert) pool have conditional influence on Justice cert voting—the analysis was based on limited data in terms of the number of observations and Court Terms analyzed.2 Here, we return to this question with a much more expansive set of data, an exercise that permits us to examine the robustness of these earlier findings. Consistent with this earlier work, we argue that the 1. Ryan C. Black & Christina L. Boyd, The Role of Law Clerks in the U.S. Supreme Court’s Agenda-Setting Process, 40 AM. POL. RES. 147 (2012). 2. See id. at 156, 164. 2014] REVISITING AGENDA SETTING 77 influence of law clerks on Justices varies. For those Justices responding to their own law clerks’ cert recommendations, we predict and find a strong relationship and a high degree of agreement between Justice and clerk. However, for non-employing Justices, we expect and find that the likelihood of agreement between clerk and Justice will vary greatly based on the interplay among three factors: (1) the ideological compatibility between a Justice and the law clerk, (2) the underlying certworthiness of the petition seeking review, and (3) the clerk’s final recommendation to grant or deny review in a petition. Relying on a newly collected dataset of all paid, non-death penalty petitions making the Court’s discuss list over the course of eight Terms (1986–1993) and drawn from the papers of Justice Harry A. Blackmun,3 the findings of our analysis are strong and robust. By way of preview, we find that nearly 75% of all Justices’ agenda-setting votes in our data match the recommendation made by the cert pool memo author. This influence is not uniform, but rather conditioned by two important factors: (1) Justices are significantly more likely to follow a pool memo’s recommendation when that recommendation is consistent with the underlying cues present in the pool memo; and (2) Justices are significantly more likely to follow grant recommendations when the recommendation is provided by a clerk from an ideologically proximate chambers as opposed to one that is distant. As we contend in this Article’s closing pages, these findings are informative on the effectiveness and efficiency of the Court’s practice of pooling certiorari petitions among the chambers. More generally, the results, which we argue are generalizable across a variety of political institutions, also suggest advisors can and do systematically influence the decisions made by political elites. Our efforts proceed in several steps. We begin by describing the advising role provided by clerks to their Justices. We then turn to outlining our theories for the conditions under which Justices should be influenced by law clerks—both their own (Part III) and those of other Justices (Part IV). Part V takes these general expectations and formulates them into specific empirically testable hypotheses. Part VI describes our data, measures, and statistical results. Finally, Part VII concludes with a discussion of the findings, some 3. LEE EPSTEIN, JEFFREY A. SEGAL & HAROLD J. SPAETH, THE DIGITAL ARCHIVE OF THE PAPERS OF JUSTICE HARRY A. BLACKMUN (2007), http://epstein.wustl.edu/blackmu n.php, archived at http://perma.cc/S5MQ-TPA9. 78 MARQUETTE LAW REVIEW [98:75 potential limitations, and what our results mean more generally for the Supreme Court as an institution. II. LAW CLERKS AS ADVISORS A. Advisors in Politics Since the 1920s, as the job of U.S. political elites has become more complex, the number of individuals serving in advisory roles across the branches has increased dramatically. In 1919, each legislator in the U.S. Congress was authorized only two staff members, while current rules allow for over twenty staffers per legislator, plus access to numerous committee aides.4 Through 1918, U.S. Supreme Court Justices had congressional authorization to hire one stenographic clerk;5 today, the total staff size for an A ssociate Justice has more than tripled, including the addition of three more clerks.6 The President’s staff, which numbers near
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