Advisors in Politics
Since the 1920s, the complexity of roles for U.S political elites has significantly increased, leading to a dramatic rise in the number of individuals serving in advisory positions across various branches of government In 1919, each U.S legislator had limited support, but this has evolved over the decades to meet the growing demands of governance.
Congress originally had authorization for only two staff members, but current regulations permit over twenty per legislator, along with numerous committee aides Similarly, U.S Supreme Court Justices were allowed to hire just one stenographic clerk through 1918, whereas today, an Associate Justice has more than triple that number, including three additional clerks The President’s staff has also seen significant growth, expanding from around 200 in the 1920s to nearly 2,000 today These increasing staff numbers highlight the crucial role advisors play in federal politics.
Advisors play a crucial role in national political institutions, significantly influencing policy development and decision-making In Congress, they engage in research, draft legislation, and negotiate on behalf of their members In the White House, advisors provide policy expertise and filter information for the president in their specialized areas At the Supreme Court, law clerks serve as essential advisors to Justices, undertaking various responsibilities to support judicial functions.
4 O RGANIZATION OF THE C ONGRESS , H.R R EP N O 103-413, S R EP N O 103-215, at
5 T ODD C P EPPERS , C OURTIERS OF THE M ARBLE P ALACE : T HE R ISE AND
I NFLUENCE OF THE S UPREME C OURT L AW C LERK 83 (2006)
7 L YN R AGSDALE , V ITAL S TATISTICS ON THE P RESIDENCY : W ASHINGTON TO
8 H ARRISON W F OX , J R & S USAN W EBB H AMMOND , C ONGRESSIONAL S TAFFS : T HE
I NVISIBLE F ORCE IN A MERICAN L AWMAKING 2 (1977)
9 See B RADLEY H P ATTERSON J R , T HE W HITE H OUSE S TAFF : I NSIDE THE W EST
10 P EPPERS , supra note 5, at 14; A RTEMUS W ARD & D AVID L W EIDEN , S ORCERERS ’
A PPRENTICES : 100 Y EARS OF L AW C LERKS AT THE U NITED S TATES S UPREME C OURT 3–4
In 2014, it was highlighted that advisors hold a significant and influential position within our political system, as evidenced by their numbers, understanding of responsibilities, and personal anecdotes Nonetheless, the degree of their influence and the specific circumstances under which it operates often remain unclear.
Law Clerks as Advisors at Certiorari
P OLITICAL E LITES AS P RINCIPALS , A DVISORS AS A GENTS
Political advisors are widely believed to wield significant influence, even if this influence is not always clearly defined Given the extensive responsibilities faced by major political figures, it is understandable that they rely on advisors for information, expertise, and representation in decision-making processes This reliance aligns with the principles of principal-agency theory, which emphasizes the delegation of tasks As Kowert highlights, important governmental and business decisions are rarely made in isolation; rather, they involve the contributions of advisors who play a crucial role in shaping outcomes across various political institutions.
White House advisors craft future national foreign policy, congressional
34 See W HITEMAN , supra note 11, at 35; see also J EAN A G ARRISON , G AMES
A DVISORS P LAY : F OREIGN P OLICY IN THE N IXON AND C ARTER A DMINISTRATIONS , at xviii–xix (1999)
35 See Gary J Miller, The Political Evolution of Principal–Agent Models, 8 A NN R EV
36 P AUL A K OWERT , G ROUPTHINK OR D EADLOCK : W HEN DO L EADERS L EARN
2014] REVISITING AGENDA SETTING 83 aides strike bargains over the text of a pending bill, and Supreme Court clerks write initial drafts of controversial opinions
Political principals bear the ultimate responsibility for their decisions, yet they cannot navigate this complex process alone due to constraints like limited time and information This is where political advisors play a crucial role, acting as essential support for presidents, legislators, and judges By specializing and developing expertise, these advisors equip their principals with the necessary information to facilitate informed, multi-dimensional decision-making In this context, political principals can be compared to managers in a business setting, relying on their advisors to enhance their decision-making capabilities.
Principal-agent theory highlights the necessity of properly incentivizing agents to ensure effectiveness and prevent shirking For advisors, both immediate and long-term reputation and career motivations create a significant incentive structure In the short term, while advisors enjoy considerable discretion in their roles, this discretion can be revoked at any time, even retroactively In the long run, many advisors are driven by career aspirations that keep them engaged in political and policy-related activities.
An effective principal-agent relationship allows politicians, acting as enterprise managers, to delegate significant tasks to their staff, which is essential for achieving success in contemporary politics This dynamic is crucial across the Executive, Legislative, and Judicial branches, enabling efficient governance and decision-making.
Branches lack the capacity to oversee every small detail of their roles or to independently gather the information needed for effective administrative and policy-making decisions.
37 H Owen Porter, Legislative Information Needs and Staff Resources in the American
States, in L EGISLATIVE S TAFFING : A C OMPARATIVE P ERSPECTIVE 39, 40 (James J Heaphey
38 Robert H Salisbury & Kenneth A Shepsle, Congressional Staff Turnover and the
Ties-That-Bind, 75 A M P OL S CI R EV 381, 382 (1981)
39 Bengt Holmstrửm, Moral Hazard and Observability, 10 B ELL J E CON 74 (1979);
Miller, supra note 35, at 204; Steven Shavell, Risk Sharing and Incentives in the Principal and
40 See Romzek & Utter, supra note 11, at 1260, 1263
Political principals delegate various tasks to advisors, ranging from routine duties to policy-making responsibilities Advisors are often viewed as experts in their respective areas, which, when combined with a well-structured system of incentivized agents, helps manage the chaotic informational environment by effectively filtering and delivering information to decision-makers This advisory system not only accounts for the significant number of advisors and staff surrounding modern political leaders but also highlights the substantial potential for these advisors to influence government policy.
When a Justice hires a law clerk, she is entrusting that individual to assist in achieving her legal and policy objectives, including the implementation of her preferences into law Theoretically, a Justice is well-positioned to ensure dedicated and loyal work from her clerks due to her control over their selection, her ability to review their decisions and activities, and her influence on their future employment opportunities after their clerkship.
Each Justice has full discretion in selecting their law clerks, allowing them to determine both the selection process and the final choice of clerks.
This creates the ability for a Justice, alone and through her existing staff of advisors, to develop a detailed understanding of the applicants, their
43 See, e.g., Andrew Rudalevige, The Structure of Leadership: Presidents, Hierarchies, and Information Flow, 35 P RESIDENTIAL S TUD Q 333, 338 (2005)
44 Id at 338, 344 We are not the first to suggest using a principal–agency approach to understanding law clerks Sally J Kenney has deployed such a perspective in her work on clerks at the Court and on reférendaires, the law clerk counterpart in the European Court of
Justice Sally J Kenney, Beyond Principals and Agents: Seeing Courts as Organizations by
Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S
Supreme Court, 33 C OMP P OL S TUD 593 (2000); Sally J Kenney, Puppeteers or Agents?
What Lazarus’s Closed Chambers Adds to Our Understanding of Law Clerks at the U.S
Supreme Court, 25 L AW & S OC I NQUIRY 185 (2000) (reviewing E DWARD L AZARUS ,
C LOSED C HAMBERS : T HE F IRST E YEWITNESS A CCOUNT OF THE E PIC S TRUGGLES I NSIDE
46 L EE E PSTEIN & J ACK K NIGHT , T HE C HOICES J USTICES M AKE 9–10 (1998)
47 W ARD & W EIDEN , supra note 10, at 108
In the process of selecting individuals who align with her agenda and policy goals, it is essential to consider various factors such as the law school attended, academic performance, coursework, letters of recommendation, group affiliations, writing samples, and previous clerkships These elements play a crucial role in ensuring the reliability and effectiveness of the selection process.
When a Justice hires a law clerk, they can effectively oversee their work through auditing The clerk's tasks, which may include reviewing cert petitions, preparing bench memoranda, or drafting initial opinions, remain transparent to the Justice, who has access to all foundational materials used by the clerk Additionally, law clerks are highly motivated to make a positive impression on their employing Justice.
Reliable and dedicated clerks often enjoy significant employment support after their clerkships, as 52 Supreme Court clerkships represent remarkable achievements for attorneys These positions offer substantial advantages, including hiring bonuses, competitive salaries, and enhanced prestige, along with valuable career opportunities Conversely, a negative reputation from a former Justice can severely diminish these post-clerkship prospects and benefits.
The strong clerk–Justice employment relationship aligns well with the principal–agency theoretical framework, suggesting a close similarity between a Justice's decisions and those made by her clerk as an agent This relationship leads us to anticipate significant alignment in their actions, particularly in the context of cert.
Justices will closely follow the recommendations of their own clerks.
S IGNALING T HEORY : L AW C LERK I NFLUENCE IN N ON -A GENCY R ELATIONSHIPS
LAW CLERK INFLUENCE IN NON-AGENCY RELATIONSHIPS
A Supreme Court clerk primarily interacts with the Justice they work for, but the cert pool creates opportunities for engagement with other Justices This is due to the shared pool memos that clerks prepare, which can influence the decision-making process across the Court.
49 Id at 55–56; Corey Ditslear & Lawrence Baum, Selection of Law Clerks and
Polarization in the U.S Supreme Court, 63 J P OL 869, 870–71 (2001); Todd C Peppers &
Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical
50 Peppers & Ward, supra note 20, at 9
52 See W ARD & W EIDEN , supra note 10, at 1
In the Marquette Law Review, it is highlighted that recommendations are shared with various chambers beyond the Justice who employs the law clerk Although all Justices in the pool receive identical memos, only the Justice who hired the law clerk can utilize specific direct supervision tools.
Justice O'Connor did not play a role in the selection or supervision of clerks for Justice Thomas, prompting a need to examine signaling theory rather than solely relying on principal-agency theory Signaling theory explores the dynamics of communication between a sender, who possesses greater information, and a receiver As the interests of the sender and receiver diverge, the effectiveness of the communication diminishes, impacting how non-employing Justices may react to cert pool recommendations.
The signaling model in our context involves the communication of information from the pool clerk to each Justice in the pool through pool memos The clerk holds a significant informational advantage, as they review the entire case record, including litigants' briefs and lower court opinions, which shapes the content of the memos However, the interests of the clerk and the Justices may not always align, leading to potential issues with the reliability of the information communicated through this signaling process.
As such, after the Justices in the pool receive the cert recommendation, they must account for the potential that the pool
55 Vincent P Crawford & Joel Sobel, Strategic Information Transmission, 50
56 In recent years, signaling theory has been used to understand other Supreme Court- related relationships, including the interactions between Justices and the Solicitor General,
Michael A Bailey, Brian Kamoie & Forrest Maltzman, Signals from the Tenth Justice: The
Political Role of the Solicitor General in Supreme Court Decision Making, 49 A M J P OL S CI
72 (2005), and the Supreme Court’s overall decision to grant or deny cert, Ryan C Black &
Ryan J Owens, Consider the Source (and the Message): Supreme Court Justices and Strategic
Audits of Lower Court Decisions, 65 P OL R ES Q 385 (2012); Charles M Cameron, Jeffrey
A Segal & Donald Songer, Strategic Auditing in a Political Hierarchy: An Informational
Model of the Supreme Court’s Certiorari Decisions, 94 A M P OL S CI R EV 101 (2000)
57 Crawford & Sobel, supra note 55, at 1431–33
58 S TERN ET AL , supra note 13, at 39
In 2014, the importance of evaluating the accuracy of law clerk recommendations was highlighted, noting that these suggestions could be flawed due to the clerk's interpretive skills or intentional bias Given the impracticality of a Justice personally reviewing every case's record, they often rely on informational shortcuts to assess the quality of these recommendations efficiently.
Justices utilize several key factors when evaluating cert petitions, including critical informational cues regarding the petition's quality, the clerk's pool recommendation direction (grant or deny), and the alignment of political preferences between the Justice and the pool clerk Additionally, a Justice's reliance on these recommendations may fluctuate based on their tenure on the Court.
Key elements of a case petitioned for certiorari significantly impact the Justices' voting decisions Critical factors include the presence of circuit conflicts, the importance of the national issue at stake, dissenting opinions from lower courts, and whether the petitioner is an indigent individual Cases that exhibit a higher number of positive informational cues are considered more certworthy by the Justices compared to those with fewer positive indicators or additional negative cues.
Informational cues play a significant role in influencing the pool clerk’s recommendation to grant or deny petitions It is anticipated that Justices are more inclined to adhere to clerk recommendations when they align with the petition's perceived certworthiness Specifically, if a petition is deemed certworthy and the clerk advises granting it, Justices are more likely to accept this recommendation compared to a denial for the same high-quality petition Conversely, for non-certworthy petitions, Justices are expected to be more inclined to accept denial recommendations For instance, a Justice is more likely to follow a grant recommendation for a petition that presents a conflict.
59 Joseph Tanenhaus, Marvin Schick, Matthew Muraskin & Daniel Rosen, The
Supreme Court’s Certiorari Jurisdiction: Cue Theory, in J UDICIAL D ECISION -M AKING 111,
88 MARQUETTE LAW REVIEW [98:75 and a deny recommendation for the petition submitted by an indigent
Individual law clerks are expected to align their actions with the preferences of the Justices who employ them This ideologically motivated conduct may resonate with certain external chambers, while diverging significantly from the views of others.
When there is a significant ideological gap between a Justice and the cert pool clerk, the credibility of the cert pool's recommendations may be questioned Consequently, the Justice is less inclined to adhere to those suggestions, as our theory indicates.
Scalia would, all else equal, reject a recommendation from one of
Justice Ginsburg’s law clerks while accepting a recommendation from one of Justice Thomas’s law clerks
Justices are likely to consider both the ideological alignment with pool clerks and the quality of petitions when making cert votes A petition that is deemed certworthy and receives a positive recommendation from a pool clerk is more likely to be granted if the clerk's policy preferences align with those of the Justice This interplay between ideological distance and the recommendation's influence suggests that Justices are forward-looking and policy-conscious in their decision-making process.
Justice Scalia would still potentially discount a recommendation coming from a pool clerk hailing from Justice Marshall’s ideologically distant chambers
A Justice's inclination to adhere to a clerk's recommendation is influenced by their experience and familiarity with the Court Research shows that a Justice's behavior evolves throughout their tenure on the Supreme Court, highlighting that newly appointed Justices require time to adjust and develop their decision-making processes.
62 Ryan C Black & Ryan J Owens, Agenda Setting in the Supreme Court: The
Collision of Policy and Jurisprudence, 71 J P OL 1062, 1063 (2009); Gregory A Caldeira, John
R Wright & Christopher J W Zorn, Sophisticated Voting and Gate-Keeping in the Supreme
63 Timothy M Hagle, “Freshman Effects” for Supreme Court Justices, 37 A M J P OL
S CI 1142 (1993); Mark S Hurwitz & Joseph V Stefko, Acclimation and Attitudes:
“Newcomer” Justices and Precedent Conformance on the Supreme Court, 57 P OL R ES Q 121
In 2014, it was observed that newer Justices in the Court tend to rely more on cert pool recommendations during the agenda-setting phase compared to their senior counterparts, who are more accustomed to the Court's distinct workload, norms, and responsibilities This reliance highlights the differences in decision-making approaches among Justices based on their experience within the Court.
H YPOTHESES
The above detailed theories give rise to the following four hypotheses 64 :
• Hypothesis 1: Pool clerk recommendations to deny non- certworthy petitions should be more likely to be followed than grant recommendations of similarly non-certworthy petitions
• Hypothesis 2: Pool clerk recommendations to grant certworthy petitions should be more likely to be followed than deny recommendations of similarly certworthy petitions
• Hypothesis 3: Pool clerk recommendations to grant certworthy petitions should be more likely to be followed by Justices ideologically similar to the recommending pool clerk
• Hypothesis 4: The less time a Justice has served on the Court, the more likely he should be to follow a pool clerk’s cert recommendation.
D ATA AND M EASUREMENT
In this replication project, we investigated the influence of clerks on certiorari petitions by analyzing a specific subset of cases reviewed by the Court Our analysis began with a thorough examination of the conference discussion lists related to these petitions.
Court’s 1986–1993 Terms, which we obtained from the archival papers of Justice Blackmun at the Library of Congress in Washington, D.C
The discuss list highlights petitions that received recorded votes during the agenda-setting phase While the Chief Justice is tasked with circulating the initial draft of this list, any Justice has the authority to request the inclusion of a petition Petitions that do not appear on the discuss list are automatically denied consideration.
64 These hypotheses align closely with hypotheses 1a–1c and 2 in the 2012 paper that we are replicating Black & Boyd, supra note 1, at 155–56 As we discuss in further detail below, we do not have the data necessary in this project to model the procedural complexity hypothesis from the 2012 paper See infra note 79
65 Ryan C Black & Christina L Boyd, Selecting the Select Few: The Discuss List and the U.S Supreme Court’s Agenda-Setting Process, 94 S OC S CI Q 1124, 1126 (2013)
90 MARQUETTE LAW REVIEW [98:75 without a formal vote 66
Discuss lists in hand, we then made several data-winnowing steps
In our analysis, we focused exclusively on 9,531 paid petitions for the review of death penalty sentences, specifically excluding all other types of petitions We ensured that our data was sourced solely from federal courts, including both federal court of appeals and federal district courts.
Justice votes cast across 1,081 petitions By way of comparison, the original Black and Boyd 2012 study examined 305 petitions containing just over 2,000 Justice votes 70
The dependent variable in our analysis assesses the alignment between a law clerk’s pool memo recommendation on certiorari and the final cert vote by a Justice in the cert pool This binary measure is assigned a value of 1 when a law clerk recommends granting certiorari and the voting Justice concurs, or when the clerk advises denial and the Justice votes to deny.
66 Id The process by which petitions are selected for the discuss list is not, of course, random See id Rather it is the Court’s first chance to winnow the pool of cases to a more manageable number by eliminating those that are clearly without merit See id One might be concerned that, by selecting only petitions that have already cleared this bar, our analysis will have some degree of a selection bias While there is undoubtedly some bias, we believe it actually causes us to understate the true nature of law clerk influence
67 During most of the Terms analyzed, the Court had a distinct cert review process for capital cases which automatically added them to the discuss list See E DWARD L AZARUS ,
C LOSED C HAMBERS : T HE R ISE , F ALL , AND F UTURE OF THE M ODERN S UPREME C OURT
In the 1998 case discussed in the 2005 Penguin Books publication, Justices Marshall and Brennan consistently voted to grant certiorari for petitions, leading to the vacating of death penalty sentences and the remanding of cases for additional proceedings.
L AZARUS , supra, at 159; see also B OB W OODWARD & S COTT A RMSTRONG , T HE
B RETHREN : I NSIDE THE S UPREME C OURT 205–08 (1979)
68 This is consistent with the vast majority of agenda-setting studies, which argue that unpaid (i.e., in forma pauperis) petitions are of substantially less merit than their paid counterparts See, e.g., Black & Owens, supra note 62, at 1065 n.4; Gregory A Caldeira &
John R Wright, Organized Interests and Agenda Setting in the U.S Supreme Court, 82 A M
P OL S CI R EV 1109, 1116 (1988) But see Ryan C Black & Christina L Boyd, U.S Supreme
Court Agenda Setting and the Role of Litigant Status, 28 J.L E CON & O RG 286, 288 n.2
69 The data we use here were collected as part of a larger project on the policy influences on agenda setting This separate project requires that we place lower court judges and Supreme Court Justices in the same ideological space The Judicial Common Space allows us to compare preferences of Justices and lower court judges Lee Epstein, Andrew D
Martin, Jeffrey A Segal & Chad Westerland, The Judicial Common Space, 23 J.L E CON &
Currently, there is no equivalent process for state court judges regarding data management Fortunately, this data loss is not a significant concern, as approximately 75% of all petitions originate from lower federal courts.
70 Black & Boyd, supra note 1, at 156
71 We follow Harold J Spaeth and code a Justice’s vote as “grant” when she actually
In the study of agenda-setting behavior among Justices, clerk recommendations and Justice votes were analyzed, with a coding system implemented where a vote to deny review is marked as 0 This data, sourced from Epstein, Segal, and Spaeth, was derived from pool memos and Justice Blackmun’s docket sheets, which prior research has established as reliable indicators of the Justices’ decision-making processes.
To evaluate our four hypotheses, we require independent variables that reflect the clerk’s recommendation direction, the certworthiness of a petition, the ideological distance between the recommending clerk and the voting Justice, and the tenure length of the voting Justice on the Court To determine if the influence of a clerk’s recommendation is significant solely for petitions deemed highly certworthy, we also interact the first three variables: direction, certworthiness, and ideological distance Each of these measures will be detailed subsequently.
The Clerk Recommendation holds a value of 1 for grants and 0 for denials, with approximately 70% of petitions being recommended for denial and only 30% for approval.
To operationalize Certworthiness, we follow the practice from our
In 2012, a study aimed to create a summary measure that encapsulates the significant informational cues identified by numerous scholars regarding the Court's certiorari process over the years To achieve this, the research first involved estimating a logistic model to analyze the voting patterns of justices, particularly focusing on instances when a justice voted to grant a case or to "Join-3," which would count as a grant vote if supported by three other justices This analysis was conducted by Harold J Spaeth, emphasizing the expanded dynamics of the Burger Court.
The Judicial Database (1969–1985) provides valuable insights and is accessible at http://artsandsciences.sc.edu/poli/juri/burger_codebook.pdf, with an archived version available at http://perma.cc/BDX8-HYPQ Notably, our findings remain consistent even when Join-3 votes are recoded as missing data.
72 E PSTEIN ET AL , supra note 3
73 Ryan C Black & Ryan J Owens, Analyzing the Reliability of Supreme Court
Justices’ Agenda-Setting Records, 30 J UST S YS J 254 (2009)
Methods and Results
Placing the Results in Context
Previous studies on the Supreme Court's agenda-setting process have acknowledged the presence of law clerks but have often overlooked their systematic role in models of judicial behavior This neglect results in an incomplete understanding of the Court's decision-making dynamics.
In their 2012 study, Black and Boyd explored the discretionary decision-making of courts, revealing that a pool clerk's certification recommendation significantly influences the quality of the certification petition and the ideological perspectives of the voting Justices Their findings suggest that these factors play a crucial role in determining when Justices align with the recommendations of the pool clerk.
While the initial study presented strong evidence, it was limited by a brief time frame of only four terms and a small data set of just over 300 petitions This article aims to replicate and extend the original research by examining a larger number of court terms and a more extensive set of petitions Such replication and extension are vital in social science research, as emphasized by renowned political science methodologist Gary King, who advocates for the replication of existing studies to enhance understanding and build upon prior work.
Our results largely confirm those found by Black and Boyd in their
2012 paper To summarize, we find a substantial level of agreement between what law clerks recommend in the pool memos and how
Justices ultimately vote Indeed, roughly 75% of the more than 9,500 votes in our data follow the recommendation made by the law clerk
The impact of law clerks on Justices is not uniform; instead, it varies based on the Justices' pre-existing beliefs regarding a petition's certworthiness Our analysis indicates that Justices are more inclined to accept recommendations from law clerks that align with their own views, while those that contradict their beliefs are less likely to be heeded Furthermore, when a pool clerk advocates for granting review on a petition, this recommendation significantly influences the Justices' decision-making process.
31% of the time in our data—a voting Justice also considers the
97 Black & Boyd, supra note 1, at 164
99 See Gary King, Replication, Replication, 28 PS: P OL S CI & P OL 444 (1995)
The influence of law clerks on the Supreme Court's agenda-setting process is significant, particularly when the supervising Justice shares similar ideological views with the clerk Research indicates that a voting Justice is over twice as likely to align with a clerk's recommendations when there is ideological proximity This highlights that clerks are not only engaged in reviewing cert petitions—estimated to comprise about one-third of their workload—but also play a crucial role in shaping the decisions of their employing Justices and potentially others within the Court.
Normative Implications for the Cert Pool
Our present findings, coupled with those previously obtained by
Black and Boyd highlight significant normative implications stemming from the institutionalized cert pool, which has encouraged law clerks to produce "objective" memos since its establishment in 1972 Their research reveals a standardization in memo formatting; however, it uncovers a disparity in content, particularly in the conclusions drawn based on the ideological alignment of the clerks Grant recommendations are perceived differently depending on whether they come from a clerk aligned with or opposed to a Justice's ideology, reflecting the strong principal-agent relationship between a Justice and their clerk.
The effectiveness of the cert pool, established over a decade ago, raises concerns about its ability to fulfill its intended purpose If bias is present in the recommendations, it is crucial for a pool Justice to invest extra effort in identifying and addressing this bias prior to making an agenda-setting vote Delegating this responsibility may undermine the integrity of the decision-making process.
The efficiency gains from utilizing a Justice's law clerk for independent reviews may vary significantly based on the ideological makeup of the Court and the specific position of a Justice within it.
Justice is one of the more extreme members of the Court, then grant recommendations from either proximate or distant chambers are
102 See supra notes 22 and accompanying text
103 W ARD & W EIDEN , supra note 10, at 118
2014] REVISITING AGENDA SETTING 103 informative—you follow those from allies and do the opposite of those coming from ideologically distant chambers Paradoxically, however, a
Justice in the middle derives minimal benefits from the extremes of the spectrum, necessitating a greater investment of her clerk's time to identify the most suitable vote This insight paves the way for increased empirical and normative research evaluating the value and efficiency of the cert pool for all Supreme Court justices involved.
Generalizing About Advisors Beyond the Supreme Court
As we have already argued, the activities of law clerks during the
U.S Supreme Court’s agenda-setting process provide an excellent setting for systematically and empirically testing for advisor influence 104
While Supreme Court law clerks differ from advisors in the Executive and Legislative Branches, their similarities, particularly regarding influence, are significant These parallels include the educational background and experience of the individuals in these roles, the motivations that guide their work, and the responsibilities they undertake in their positions.
Law clerks are recognized as some of the most talented young legal professionals, often hailing from the top ranks of elite law schools and possessing prior experience with federal judges Similarly, congressional advisors are described in comparable terms While White House staff members, especially those in close proximity to the President, generally have more experience and are older, all three roles—law clerks, congressional advisors, and White House staff—are highly sought after and can open numerous future career opportunities, both within and beyond their respective fields.
In addition to similar backgrounds, key advisors to presidents, legislators, and Justices tend to be selected with many of the same
104 See Black & Boyd, supra note 1; see also supra Part II.B
106 See W ARD & W EIDEN , supra note 10, at 1
108 See, e.g., M ICHAEL J M ALBIN , U NELECTED R EPRESENTATIVES :
C ONGRESSIONAL S TAFF AND THE F UTURE OF R EPRESENTATIVE G OVERNMENT 20 (1979)
Presidents typically select close advisors based on personal loyalty and trustworthiness, aligning with their partisan ideals While the selection process for lower-level White House staff may be less stringent, a demonstrated commitment to the presidency is essential In contrast, modern members of Congress often have a diminished role in staff selection due to larger teams and higher turnover rates.
Nonetheless, the content of “their personal staffs are entirely subject to their discretion,” 113 and partisan dedication matters greatly for choosing these employees 114 As one anonymous member was quoted in
Whiteman as saying of his staff, “I rely on their judgment, and I have to think that their judgment is attuned to my philosophy.” 115 At the
Supreme Court, the nine Justices choose new clerks each year
Although educational cues provide a bar for employment, other factors, including previous clerkship experience and ideological similarity or acquiescence, seem to be operational with at least some Justices 116
In each institution, although advisors tackle critical tasks and arguably exert vast influence, they nearly uniformly do so out of sight
Employers in public positions are typically elected or appointed officials who operate under public scrutiny As Patterson points out, the true exercise of presidential power often lies with the president's personal staff, who play a crucial role in channeling, shaping, and focusing that power These staff members remain largely unknown to the public, as it is generally in the president's interest to keep them out of the spotlight.
The same is said to be true for the other branches, with the anonymity of the job actually acting to foster a spirit of cooperation and
112 See Salisbury & Shepsle, supra note 38, at 393–94
113 David L Leal & Fredrick M Hess, Who Chooses Experience? Examining the Use of Veteran Staff by House Freshman, 36 P OLITY 651, 655 (2004)
114 Romzek & Utter, supra note 11, at 1267
115 W HITEMAN , supra note 11, at 35–36 (internal quotation marks omitted)
116 W ARD & W EIDEN , supra note 10, at 76, 102–03; Ditslear & Baum, supra note 49, at 870–71
2014] REVISITING AGENDA SETTING 105 to reduce (but not eliminate entirely) incentives for shirking or self- promotion 118
The role of law clerks closely resembles that of other federal political advisors, as highlighted by Fox and Hammond, who emphasize that congressional aides operate on a foundation of mutual trust, confidence, and loyalty to their members This personal connection is akin to positions held by White House staff and personal assistants within the federal government.
While our analysis of advisor influence is limited to a specific stage within one political institution, it offers valuable insights into the broader dynamics of advisor impact in politics Despite the distinct roles of law clerks, legislative advisors, and presidential staffers, their shared characteristics enable us to draw initial conclusions about the nature and variability of advisor influence across different political branches, particularly based on our findings related to clerk influence at the U.S Supreme Court.
Future research is necessary to apply these findings to other government branches, but there is little reason to believe that the influence of advisors on legislators and presidents is any less significant, even if it is harder to quantify A thorough examination of advisor influence on political leaders could enhance our understanding of the various factors that shape political decision-making.
118 See Christine DeGregario, Research Note, Staff Utilization in the U.S Congress:
Committee Chairs and Senior Aides, 28 P OLITY 261, 266 (1995); Romzek & Utter, supra note
119 F OX & H AMMOND , supra note 8, at 3
Appendix Table 1 Logistic Regression Parameter Estimates of Petition Certworthiness
Conflict Alleged Did petitioner allege existence of legal conflict? (0 = no, 1 = yes)
Conflict Present Did pool memo determine that alleged legal conflict existed? (0 no, 1 = yes)
U.S Seeks Review Was U.S petitioner in case or did it submit an amicus brief seeking review? (0 = no, 1 = yes)
U.S Opposes Review Was U.S respondent in case or did it submit an amicus brief opposing review (0 = no, 1 = yes)
Dissent in Lower Court Did one or more lower court judges dissent from majority opinion in court immediately below Supreme Court? (0 = no, 1 = yes)
Constitutional Petition Did petitioner assert a violation of his or her constitutional rights? (0 no, 1 = yes)
Did court immediately below Supreme Court exercise judicial review by invalidating a law as being unconstitutional? (0 = no, 1 = yes)
Legal Salience Did opinion of court immediately below the Supreme Court receive media coverage in the legal periodical U.S Law Week? (0 = no,
Civil Liberties Petition Did petition involve a civil liberties issue? 120 (0 = no, 1 = yes)
How many amicus briefs were filed either supporting or opposing the petition?
Note: The cell entries in the right column are maximum likelihood coefficients
Standard errors, which appear in parentheses below each coefficient, are robust standard errors
120 See Lee Epstein & Jeffrey A Segal, Measuring Issue Salience, 44 A M J P OL S CI
Appendix Table 2 Logistic Regression Parameter Estimates of Clerk–Justice Voting Agreement