From the archives The hidden power behind the Supreme Court Justices

This story originally published on March 13, 1998. It is being republished as part of the commemoration of USA TODAY's 40th anniversary on Sept. 15, 2022. WASHINGTON -- They are the most powerful, least known young lawyers in America. They are the law clerks of the Supreme Court. For an intoxicating year, 36 young men and women quietly screen most of the cases that come to the nation's highest court and write most of the words that come out. When citizens or companies take a case "all the way to the Supreme Court," their petitions almost always are looked at first by the law clerks and disposed of without any justice actually reading the briefs. A single law clerk, typically 25 years old, white, male and a year out of Harvard, can guide the fate of a multibillion-dollar commercial dispute or make the difference between life and death for a condemned prisoner. And when the court hands down a ruling that changes the course of society -- whether on race, the right to die or school prayer -- law clerks write the first drafts that have enormous influence in shaping the final opinions. USA TODAY spent five months studying the effect and growing influence of law clerks. Current clerks are barred from talking to the media, so the newspaper interviewed more than two dozen former law clerks. Many others declined to talk publicly and sought to downplay their roles as indispensable but supporting positions in processing the roughly 7,600 petitions placed before the court each year. But a growing number of legal scholars, as well as some justices themselves, are expressing concern that the clerks have become too powerful, usurping some of the key roles the justices used to play in the work of the court. A soon-to-be-published tell-all book by former clerk Edward Lazarus adds fuel to the debate by telling stories, some of which already are being disputed, of conservative clerks manipulating moderate justices during a politically divisive period 10 years ago."Justices yield great and excessive power to immature, ideologically driven clerks, who in turn use that power to manipulate their bosses and the institution," Lazarus writes in his book, Closed Chambers. In its independent investigation, USA TODAY found few signs of ideological manipulation by today's clerks. But the newspaper did identify several effects of the clerks' largely unseen and unaccountable power over the screening and drafting of cases:Delegating the court's work. Eight of the nine justices now routinely allow their clerks to write the crucial first drafts of the opinions they write. And eight of the nine, through a pooling arrangment, also give the clerks the key job of making the initial review of incoming cases, a task that helps determine just which cases the nation's highest court will consider. Even the ninth justice, John Paul Stevens, does not always review incoming cases or write all of his opinions.

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