The Role of Law Clerks in the U.S. Supreme Court’s Agenda-Setting Process

Abstract

Do law clerks influence the decisions made by justices on the U.S. Supreme Court? Although numerous studies of law clerk influence exist, none has controlled for alternative factors that lead a justice to behave in a particular way even absent the actions of the law clerk. Turning to the Court’s agenda-setting stage, we draw from archival materials contained in the private papers of Justice Harry A. Blackmun to address this precise issue. Our results suggest that once a justice’s initial voting inclinations in a case are controlled for, the ability of a law clerk to systematically alter a justice’s vote is conditioned on the quality of the petition, the direction of the clerk’s recommendation, and the ideological closeness of the pool clerk and voting justice. Given the closeness of many agenda-setting votes, we suggest that clerk influence could be the determining factor in whether a case is granted review by the Court.