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December 2, 2014

Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review August 2, 2005 / 26 Tammuz, 5765

Supreme Court Should Reduce Reliance on Law Clerks

By Michael Barone


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http://www.JewishWorldReview.com | "The first thing we do is, let's kill all the law clerks." No, that's not exactly what Shakespeare wrote in Henry VI, Part II, but it is a sentiment that you occasionally will hear expressed by observers of our current Supreme Court. And not without some reason.

Supreme Court justices are entitled to hire four law clerks (Chief Justice William Rehnquist chooses to hire just three). Clerks are usually recent law school graduates — most Supreme Court clerks have served as clerks to federal appeals court judges first. Three of the current members of the court (Rehnquist, John Paul Stevens and Stephen Breyer) served as clerks to Supreme Court justices, as did George W. Bush's nominee, Judge John Roberts.

For most of the nation's history, Supreme Court justices got along without law clerks. Early in the century, Justice Oliver Wendell Holmes started hiring law clerks, some of whom became famous or notorious (Alger Hiss), and by the 1940s most justices did.

In the 1940s, historian David Garrow tells us, some justices started having their clerks write first drafts of their opinions. Now, most of them apparently do. Justice Louis Brandeis said that "the reason the public thinks so much of the justices of the Supreme Court is that they are almost the only people in Washington who do their own work." Not so any more.

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The proliferation of law clerks — justices got two in 1948, three in 1970, four in 1978 — has produced a proliferation of separate concurring and dissenting opinions. In the two-clerk era, there was an annual average of 107 opinions of the court, 78 dissents and 33 concurrences. In the three-clerk era, there were 146 opinions of the court, 134 dissents and 73 concurrences. In the four-clerk era, during which the Rehnquist Court started hearing fewer cases, there were 118 opinions of the court, 98 dissents and 65 concurrences.

In other words, there were 104 separate opinions for every 100 opinions of the court when justices had two clerks, 142 when they had three clerks and 138 when they had four.

And the opinions got more complex. In the 1920s, Chief Justice Taft encouraged justices to agree on unanimous opinions, and when justices disagreed there was usually just one crisp and clear dissent. Today on many, many cases, we get hundreds of pages of opinions, and justices stating agreement with parts I, II(B) and IV of the majority opinion and disagreement with parts II(A), II(C) and III. You can't read them without making a flow chart showing each justice's position first.

Once upon a time, Supreme Court opinions were widely read and understood by interested citizens. Now, they're mostly read by law professors and by practicing lawyers who get paid $500 an hour or more to do so — and by law professors and law firm partners who are making hiring decisions, and want to know which opinions their applicants have written. All this has resulted in opinions that complicate rather than clarify the law and encourage litigation rather than set clear rules which everyone can follow.

I am not the only one to conclude that the proliferation of law clerks has resulted in a proliferation of opinions. This was one conclusion of political scientist Bradley Best in his 1995 book "Law Clerks, Support Personnel and the Decline of Consensual Norms on the United States Supreme Court, 1935-1995." Best concludes that the increase in clerks has led to an increasing independence among the justices — or, in everyday language, justices now schmooze more with their clerks than with each other.


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David Garrow, reviewing Justice Harry Blackmun's papers, finds that Blackmun increasingly allowed clerks to write his opinions, sometimes without even letting them know his own position, and "increasingly ceded far too much of his judicial authority to his clerks."

I don't think that's the case with any of the current justices, who all seem highly intelligent and learned in the law.

I have hopes that a Justice John Roberts might reduce the reliance on law clerks, though he was one himself. Roberts clearly knows his own mind and is capable of drafting his own opinions. He has served on the D.C. Circuit on which former Chief Judge Harry Edwards and his successor, Douglas Ginsburg, have encouraged unanimity and discouraged dissents and separate concurrences. In cases Roberts has heard, there have been few separate opinions.

Moreover, Roberts, while showing respect for differing views, has shown a penchant for making crisp decisions and enunciating clear rules. Let's hope he and the other justices put the clerks in their place.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

BARONE'S LATEST
Hard America, Soft America: Competition vs. Coddling and the Battle for the Nation's Future  

America is divided into two camps, according to U.S. News and World Reports writer and Fox commentator Michael Barone. No, not Red and Blue, though one suspects Barone may taint the two groups in the hues of the 2000 presidential election. Barone's divided America is one part Hard, one part Soft. Hard America is steeled by the competition and accountability of the free market, while Soft America is the product of public school and government largesse. Inspired by the notion that America produces incompetent 18 year olds and remarkably competent 30 year olds, Barone embarks on a breezy 162-page commentary that will spark mostly huzzahs from the right and jeers from the left. Sales help fund JWR.

JWR contributor Michael Barone is a columnist at U.S. News & World Report. Comment by clicking here.




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