Sadly, you have to read this entire article to get to the point in the last sentence. I am really not certain the writer of this stroy actually knows what he is talking about, anyway.  There are also two stories here which get confused and intertwined—one about ideology and one about the influence of law clerks on the final opinion. I haven’t been an SCT law clerk, but I was at a state Supreme Court.  I don’t know what level of integrity current law clerks have (and based on my dealings with some younger attorneys I suspect the integrity level in sinking fast) but when I worked for the Court, the notion that you would throw some ideological tidbit into an opinion and try to “fool” the Justices about it would have been unthinkable. While we sometimes proposed opinions on certain subjects so we could have law to cite in other similair pending cases, it was never done in any way inconsistent with what we knew the Court’s bent on the topic was.  Being a law clerk has more to do with academic skills and debate/argument than it has to do with ideology.  By way of example, I wrote a majority opinion on a criminal case one time and the dissenting Justice asked me to draft his dissent, because I already knew all the ins and outs of the facts and law of the case. I guess I am saying that a good Justice knows who to trust and how to garner that trust—as the last paragraph says.

And remember, “without modification” does not mean nor should we infer “without review and approval”.

A more extreme problem exists in the legislaive branch. How many legislators actually read (or understand) the bills they vote on? And executive - how many chief execs actually critically examine staff recommendations? Increasingly, we live in a realm of unelected shadow government, and we have not even gotten to the lobbyists.

Well, when I was in law school (and it was only for a year before I transferred to seminary), legal writing was particularly stressed. I have to agree that I don’t think the writer of this article knows what he’s talking about, or at the very least is trying to create an issue out of nothing. Judges work closely with their clerks, and clerks do the research. That’s what clerks do.

This is not unlike a Ph.D. doing research who has his or her grad students doing the grunt work. If the Ph.D. has half a brain, he knows better than to just publish whatever his underling has done sight unseen.

I could see why 30 to 40% of a judgment might end up in the final draft “without modification” because most legal opinions have a opening section discussing the relevant case law and common law precedent and history that is at issue. In cases of the Supreme Court, that amount of introductory material at issue is massive in itself, particularly if its a debate about two intersecting rights that are at odds in a given case. Judgments also have to list the history of the particular case, citing what court and judge heard what, etc.

Clerks on the Supreme Court are the brightest of the bright, and they aren’t going to make mistakes in doing legal research, so most of what they present the judge will be correct. I’m sorry, but I don’t see a major issue here. This has more of a conspiracy feel to me.