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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Antwain Leach
June 19, 2015
The American legal system continues to be an area of significant interest to scholars of public administration. Unfortunately, the administrative face of the judicial system still generates less scholarship from researchers with an interest in this particular field. Thus, scholars miss unique opportunities to illustrate just how useful attention to this area can be to advance our knowledge of many aspects concerning politics in the judicial arena. In this brief essay, I outline a few areas within the American judiciary where more rigorous attention from scholars would enhance our understanding of judicial politics. I also give a few recommendations for future research projects and explain how it could be beneficial to both the discipline and society.
I believe that more research should focus on judicial case selection and all of the attendant circumstances surrounding the case selection process. Though some scholars do address certain case selection concerns throughout their research, there are still many unexplored and unanswered questions, especially in regards to the interplay between litigation initiation and the timeliness of appearances on the docket.
Public administration scholars must also increase the research devoted toward the functions of Supreme Court justices. Most scholars often pay particular attention to cases deliberated and taken up by the Supreme Court in full bench. Attention to this aspect of the Supreme Court has its merits, but this particular duty is not the only one performed by the justices.
Besides their adjudicatory responsibilities while en banc, the justices are also responsible for the maintenance of the lower federal courts. To effectuate this, each particular justice is assigned duties to oversee one or more of the 13 different federal circuits. For example, Justice Stephen Breyer is assigned to the First Circuit, Justice Ruth Bader Ginsberg is assigned to the Second Circuit, etc. In their capacities as the head of these federal circuits, the justices make rulings, issue opinions and so forth. They do this many times independently from the full bench. It would be beneficial to read more scholarship that systematically evaluates their judicial behavior under these circumstances. Doing so could lend further credence to the particular models advanced throughout the literature and could also lead scholars to begin thinking of new models to account for judicial behavior in these roles.
Public administration scholars often overlook some of the key participants in the judicial arena. In conducting their observations, many of these scholars only seem to study and focus on the most obvious actors within the judiciary. This is unfortunate because we miss out on opportunities to systematically understand the significant roles that some of the less visible actors play in judicial politics.
In particular, the role that the law clerk plays while performing duties for the bench can provide novel insights in to how the justices, judges and other actors within the judiciary system make their decisions and formulate their opinions. Law clerks at the Supreme Court typically research the legal rationale and write the first few drafts of the judicial opinions for their respective justices. These law clerks may not know exactly what is in a justice’s head, but they are familiar with their legal preferences as well as their judicial temperaments. This knowledge helps them to craft drafts for justices in the manner that will fit their particular tastes.
Law clerks for members of the Supreme Court also assist justices in their process of deciding whether to grant certiorari to particular cases. Though perhaps not actually present in the conference room while the justices undergo their deliberations, law clerks do inform the justices on which cases are most likely to appear before them in their discussions based upon where they are situated within the legal system. How these cases will likely shape certain jurisprudential areas is conveyed to the justices through case summaries, memos and other mechanisms via their law clerks.
Perhaps both qualitative and quantitative research would help to pierce through this obscure area of research. Qualitatively, we could employ the use of memoirs, interviews, public statements and other sources of data from law clerks to gain deeper insights into the reasoning behind the language of their legal drafts. Quantitatively, it would be interesting to see panel data on a cohort of law clerks. As law clerks leave their duties at the Supreme Court, it would be interesting to see the progress of these legal scholars by observing them at different points in their careers. It would be especially fascinating to observe those former clerks that go on to become judges. Would they hand down judicial opinions that correspond to the judicial leanings of their former justices?
These are some of the puzzles that could be unlocked if explored by scholars, practitioners and students of public administration. With high publicity cases currently at the U.S. Supreme Court, perhaps this attention will also help to renew an inquisitorial zeal in judicial research.
Author: Antwain Leach, MPA, was previously employed as a congressional aide in the office of former Congressman Bart Gordon. He is the president of the Center for Strategic Affairs and Public Diplomacy, a think tank that provides management consulting services. His scholarly research focuses on Congress and its relationship to the conduct and formation of U.S. foreign policy. You can reach Mr. Leach at [email protected].