Friday, April 15, 2016

Two Cheers for Counterclerks

by Michael Dorf

In Prof. Segall's post on Monday, he used Prof. Gil Seinfeld's Reflections of a Counterclerk as an occasion to wonder why Justice Scalia never offered a sustained originalist argument for reading the Fourteenth Amendment as entailing a principle of color-blindness. I won't re-litigate that question today. Instead, I want to make a few observations about the practice of hiring counterclerks.

As a reminder, in a typical term Justice Scalia hired one liberal clerk to work with his three conservative clerks. Here is how Prof. Seinfeld describes the practice:
The practice of hiring counterclerks was a reflection of the Justice’s commitment to maintaining high standards of intellectual integrity.  . . . The role of the counterclerk was, as the Justice used to say, to “keep him honest”; and the motivating intuition was that a liberal clerk was more likely than a conservative one to cry foul in the event that, in a moment of weakness, the Justice showed signs of playing fast and loose with (or even abandoning) the interpretive principles he had repeatedly insisted are the lifeblood of properly restrained judging. To put the point more concretely, the role of the counterclerk was not to try to persuade the Justice that, say, originalism is an error or that his mode of textualist statutory interpretation was too wooden. It was, rather, to help assure that he was the best, truest, most straight-shooting originalist and textualist he could be. It didn’t always work.
Thus, despite the counterclerks, Justice Scalia did not always follow his jurisprudential philosophy where the counterclerks thought it led. Presumably all judges and justices will sometimes, perhaps frequently, succumb to the temptation to put their Jesus on the shelf (to paraphrase the protagonist of Eugene O'Neill's The Emperor Jones) and vote their priors. Or, more commonly, to persuade themselves that their priors align with their jurisprudential philosophy. Justice Scalia nonetheless deserves credit for recognizing the risk and taking a measure--hiring a counterclerk--to combat it.

But note an important limitation of the counterclerk role. According to Prof. Seinfeld, Justice Scalia did not want his counterclerk to challenge his fundamental assumptions. Speaking from my own experience, that makes quite a bit of sense. I don't have law clerks but I do use research assistants. In hiring them, I typically approach the one or two students who performed the best in my constitutional law class. Sometimes they're liberal, sometimes moderate, sometimes conservative. A conservative RA would be wasting my time and hers if, in the course of giving me feedback on, say, an article offering normative arguments for policy independence in the Federal Reserve, she wrote me a long memo explaining why, in her view, the entire administrative state violates the original understanding of the Constitution. It's helpful to provide a list of academic articles that stake out this position, and of course I would want to look at the literature (if I hadn't already), but the RA's time is better spent providing me feedback that works within the methodology the article uses.

That point seems generalizable. For example, suppose a law-and-economics scholar writes a paper arguing that adopting some rule in place of the extant rule would be pareto-optimal. It would not be helpful for the scholar's RA to dispute the value of pareto-optimality as a measure of social welfare or, more broadly, to challenge various assumptions of economics, such as rationality.

That's not to say, however, that such questions--whether originalism is right or wrong; whether economic efficiency is a coherent concept, and even if so, how to measure it; etc.--are unimportant. On the contrary, they are profoundly important. It's just that one can't make progress on particular projects that work within a paradigm if one is constantly responding to challenges to the paradigm itself.

But this means that we shouldn't give Justice Scalia too much credit for hiring counterclerks. Although surrounding oneself with yes-men can be a sign of weakness, hiring one out of four clerks to keep the justice honest by pointing to potential inconsistencies within the justice's preferred paradigm does not reflect a whole lot of open-mindedness.

Suppose that a case has a clear liberal/conservative valence. (Not all cases do.) Suppose further that Justice Scalia was initially inclined to vote the conservative way. Now what happens? The counterclerk presumably tells the justice that he should be voting for the liberal side based on textualist and originalist arguments. At that point, Justice Scalia doesn't simply give up. Presumably the other three law clerks make arguments to the effect that actually the textualist and originalist arguments do lead to the conservative result, which is how the justice is inclined to vote anyway. No one need ever say (or consciously think) that the result should be driven by ideological considerations for those considerations nonetheless to prevail.

Meanwhile, because attacks on the overall judicial philosophy itself are out of bounds, the counterclerk doesn't ever get to say what he or she is no doubt thinking much of the time: Gee, Mr. Justice, I don't want to say that your jurisprudence is extremely malleable, but don't you think it's odd that it almost always leads you to results that you favor on ideological grounds?

I want to be clear that I think the same frustration would be felt by a conservative counterclerk for a liberal justice--at least if the liberal justice were to make claims about the objectivity of her methodology similar to the claims made by the likes of self-described textualist and originalist judges on behalf of their methodology.

The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all. I give counterclerks only two cheers.