The Supreme Court writes full decisions in around 70 orally argued cases every term. The majority of these cases were previously heard by federal courts of appeals. Each of the twelve federal appeals circuits, however, decides hundreds of cases every year, with only a tiny percentage going to the Supreme Court for further review. Appeals courts judges end up as the final arbiters of most appellate cases and with these decisions regularly affect the course of the law. Just this past year, for example. the Supreme Court declined to hear two Second Amendment cases with large implications for gun rights. Appeals courts’ rulings effectively left tighter gun restrictions intact in those instances. This is the typical way we might think of appeals court judges’ influence on the course of federal law.
A limited number of federal appellate judges though have a much deeper influence on both the Supreme Court and on the Court’s decisions. Merrick Garland is at the top of this list. Even if he is never confirmed to the Court he will leave an indelible mark on the course of many Supreme Court decisions. If he is confirmed this should make for a much easier integration into the Court. But how does Garland regularly influence the Court and the current Justices?
A simple explanation begins with his relationship with Chief Justice Roberts. Garland and Roberts sat on the D.C. Circuit Court of Appeals together from Justice Roberts’ appointment to the circuit in 2003 until Roberts was nominated and confirmed as Chief Justice in 2005. The two worked together on more than 25 full written decisions (panel and/or en-banc) in these years and several hundred matters when orders are also included.* Garland’s seniority, experience judging, and general jurisprudential philosophy inevitably had a degree of impact on Justice Roberts during his years as an appeals judge.
Beyond this direct relationship much of Garland’s impact comes through the presence of his past clerks. His impact on the Roberts Court is more pronounced than that of any other federal appeals court judge (in a previous post I discussed how 41 of Judge Garland’s clerks went on to clerk for Roberts Court Justices).
Focusing on the relationships with the Justices, the figure below shows the breakdown of Garland’s clerk per Supreme Court Justice (two of Garland’s former clerks, Elizabeth Prelogar and Lindsey Powell, clerked for two Supreme Court Justices over two terms apiece) including the 2016 Term clerk hires.
Not surprisingly, Garland’s prior clerks went on to clerk for primarily liberal or moderate Justices with the exception of Justice Roberts. The strength of these relationships between Garland and the active Justices gives an initial sense of where Garland may fit ideologically on the Court (this graph places him closest to Justice Breyer, who was the closest Justice to Garland as well based on a New York Times article examining Garland’s perceived ideology).
Garland’s reach with the Justices is not only the most prevalent in the modern Court, but also is one of the greatest ever. Looking over the history of the Supreme Court, only two judges have fed more clerks to the Supreme Court. This must be taken with a grain of salt though since there is a strong bias towards more recent judges in this measure as Supreme Court Justices have increased their number of clerks per Term over time (Professor David Garrow has an interesting look in this book review).
Judge Kosinski from the Ninth Circuit fed the greatest number of clerks to the Supreme Court with 60. He is followed by Fourth Circuit Judge Wilkinson with 57 and then Judge Garland with 48. To give a sense of this modern bias, even historically renowned appeals court judge Judge Friendly (the appeals court judge who Garland clerked for prior to his Supreme Court clerkship with Justice Brennan) only fed 17 clerks to the Supreme Court. As the figure above examining the overall feeder judge numbers give a preference to judges who sat on appeals courts for longer spans of time, another way to view this group of five judges is by the average number of clerks they fed to the Supreme Court by Term.
Looking at this figure, Garland ranks second with 2.4 clerks/term just after Judge Luttig’s 2.6 clerks per term (this is followed by Judge Kozinski with 1.9 clerks/term, Judge Wilkinson with 1.72 clerks/term and Judge Tatel with 1.70 clerks/term).
Effects on Supreme Court Decisions
Supreme Court clerks are typically only a few years out of law school. Now it is almost a requisite to have a federal clerkship with a federal appeals court judge and many clerk for two federal judges (appeals and/or federal district judges) before clerking for a Supreme Court Justice. Supreme Court clerks’ prior clerkships are where clerks learn about working with judges and where they develop some or most of their understanding of the pragmatics of the law and legal interpretation. The impressions made by Supreme Court clerks prior, lower court clerkships cannot be underestimated. With this and the potential impact of Supreme Court clerks on the Court’s decisions, the implications of these clerks’ prior clerkships on the Court’s decisions are vast.
While Supreme Court clerks rarely publicly discuss their relationships with the Justices and their influence on decisions, the few books with clerk interviews describe the large roles the clerks play (some of these books include Deciding to Decide by Perry and In Chambers by Ward and Peppers, along with Closed Chambers by Lazarus which is discussed in Garrow’s book review linked above). We will likely never know the full extent of Garland’s clerks on the Supreme Court and without the release of Justices’ papers in future years much of these clerks’ impacts may never be made public (the release of papers like Justice Blackmun’s gives a good dealt of insight into the otherwise shrouded relationship between the Justices and their clerks).
Garland’s clerks have worked on some of the most important decisions of recent year. In total, Garland’s clerks have worked for Justices during the course of over 300 written, majority decisions from those Justices. As I previously stated, we may never know the direct relationship between the clerks and the individual decisions, although the figure below provides some sense of the number of decisions to date that the Justices made with Garland’s former clerks working in their chambers.
Garland’s former clerks worked with Justice Breyer over the course of 74 of his decisions, with Justice Ginsburg during 60 of her decisions, Justice Kennedy during 40 of his decisions, and with Justice Kagan during 39 of her decisions. While not all of these were landmark decisions, some of these were some of the biggest decisions of recent year.
Below is just a sample of the cases where a Justice wrote a majority opinion with a former Garland clerk in their chambers that Term:
1) League of United Latin American Citizens, et al., Appellants v. Rick Perry, Governor of Texas, et al. (2005)
Justice Kennedy; Clerk David M. Cooper
Focus: Texas’ redrawing of voting districts
Held: Redrawing of district lines amounted to vote dilution violative of §2 of the Voting Rights Act of 1965.
2) Massachusetts, et al., Petitioners v. Environmental Protection Agency, et al. (2006)
Justice Stevens; Clerk Chad Golder
Focus: EPA regulations under the Clean Air Act
Held: EPA’s claim to authority under the Clean Air Act exceeded its authority.
3) Snyder v. Phelps (2010)
Justice Roberts; Clerk Kate Heinzelman
Focus: Protest at military funeral
Held: Protesters protected from liability
4) Arizona, et al., Petitioners v. United States (2011)
Justice Kennedy; Clerk Ishan K. Bhabha
Focus: Federal government’s and Arizona’s conflicting immigration laws.
Held: Arizona law created an unconstitutional obstacle to federal law.
5) Hosanna-Tabor Evangelical Lutheran Church and School, Petitioner v. Equal Employment Opportunity Commission, et al. (2011)
Justice Roberts; Clerk Colleen Roh
Focus: Religious institutions exception to employment-related suits
Held: First Amendment bars suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.
6) National Federation of Independent Businesses v. Sebelius (2011)
Justice Roberts; Clerk Colleen Roh
Focus: The ACA’s (national healthcare law) constitutionality due to a claim that the individual mandate exceeded Congress’ limited and enumerated powers under the Constitution.
Held: Individual mandate may be upheld as within Congress’s power under the Taxing Clause.
7) National Labor Relations Board v. Noel Canning (2013)
Justice Breyer; Clerk Thomas Schmidt
Focus: Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate
Held: For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.
8) Schuette v. Coalition to Defend Affirmative Action (2013)
Justice Kennedy; Clerk Matthew X. Etchemendy
Focus: Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex-based discrimination or preferential treatment in public-university admissions decisions.
Held: Michigan laws that commit to the voters the determination of whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions, are allowed.
9) Alabama Democratic Conference, et al., Appellants v. Alabama, et al. (2014)
Justice Breyer; Clerk Kendall Turner
Focus: Whether the district court was correct or whether Alabama’s legislative redistricting plans unconstitutionally classified black voters by race by intentionally packing them in specific districts
Held: The district court’s analysis of the racial gerrymandering claim as referring to the State ‘as a whole,’ rather than district-by-district, was legally erroneous.
10) Whole Woman’s Health v. Hellerstedt (2015)
Justice Breyer; Clerk Galen Bascom
Focus: The constitutionality of Texas’ laws that would cause a significant reduction in the availability of abortion services.
Held: The requirements placed a substantial obstacle in the path of women seeking a previability abortion and led to an undue burden on abortion access, violating the Constitution.
This is just a snippet of the decisions where Garland’s former clerks may have had some if not a substantial hand. Cumulatively, they show that even without sitting as a member of the Supreme Court, Judge Garland has and will have an impact on a great number of the Court’s decision-makers and the Court’s decisions.
On Twitter: @AdamSFeldman
* The Per-Justice Figure was fixed after the initial post.
* Based on search terms within the D.C. Circuit: [JUDGES(Garland AND Roberts), eliminating per curiam opinions and bracketed by years 2002 through 2006.
Clerks located with the aid of the Clerk Wiki List
Cases compiled with the aid of the United States Supreme Court Database