A few decades ago, the court decided 150 cases a term. That number has dropped by about half, meaning each justice must write about eight majority opinions a term. Yet the practice of entrusting much of the drafting to clerks remains entrenched.
“We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices,” Professor [David] Garrow said.
The justices forbid their current clerks to talk to the press, and most former clerks refuse to discuss the work they performed for living justices in any detail. But Artemus Ward and David L. Weiden received responses from 122 former clerks to a question concerning the drafting of opinions for their 2006 book “Sorcerers’ Apprentices.” Thirty percent of the clerks said their drafts had been issued without modification at least some of the time.
Reviewing the book in The New Republic, Judge Posner, a close student of the court, wrote that “probably more than half the written output of the court is clerk-authored.”