The salacious allegations against Judge Eleanor Ross have overshadowed a more important issue: judges delegating too much responsibility to their clerks.
Greetings! I am not yet a law student, so this content is fascinating to me, especially dynamics between clerking at different levels of the judiciary. Out of curiosity, is it standard for law graduates to start off with a district court clerkship first, followed by a clerkship with a court of appeals judge or higher? Or is the order sometimes reversed? I'm curious about this because of how you describe the workload and autonomy that district judges have, vs working at the court of appeals.
It's increasingly common for people to do two clerkships—see link below for how this plays out in the context of SCOTUS clerkships—but there's no set order. It often depends on when clerks are able to get their offers for, in terms of when the judges who hire them have openings.
My personal view is that if you have a choice, it's better to do the circuit-court clerkship right out of law school, followed by the district-court clerkship. The circuit-court clerkship is more academic in nature, closer to your law school experience, and it will prepare you for the (generally more challenging) district-court clerkship. But again, folks don't always have a choice.
Good column, David. I believe I read recently that Justice Alito has his clerks write the first draft of his opinions. He then carefully edits. I also heard from a former clerk for Breyer that while he encouraged them to write drafts, he graciously accepted them before filing them in a desk drawer never to be seen again.
1. That's interesting re: Breyer. He wasn't not known as one of the justices who did a lot of his own writing; in the pre-Roberts Court, that was generally said to be Justice Stevens.
But Albert Yoon, one of the professors I interviewed for this piece, did an interesting study back in 2010. He and his co-author analyzed the variability in justices' writing style over the years, thinking that the higher the variability, the greater reliance on clerks (because if a justice's writing style doesn't vary much over multiple Terms, during which the justice has multiple classes of clerks, the justice is probably be doing their own drafting or at least editing very heavily).
The two justices with the lowest variability scores in the pre-Roberts Court were Breyer, which would be consistent with what your friend told you, and Scalia, who was widely regarded as having had a very distinctive writing voice (and being very hands-on as an editor).
I would be interested in having someone use AI to run a study like this for the current Court.
2. On the current Court, Justice Alito said this about his process (per SCOTUSblog—link below):
<<When it comes time to write an opinion, Alito said, his process for doing so is “nothing very radical.” One of his law clerks first produces an outline for the draft, discusses that outline with Alito, and then drafts the opinion. He then “sits down at my word processor and edit[s]” it thoroughly. Separate writings—concurring or dissenting opinions—are “more personal,” Alito said, and he is therefore “more likely to do a draft” himself, rather than delegate the first draft to a law clerk.>>
So while you're right that he lets clerks do the first drafts of majority opinions, it sounds like he sometimes (or maybe often?) drafts his own separate writings.
I've also heard that Justice Kagan either does some of her own drafting, or edits so heavily that it's as if she drafted.
I was a clerk in the EDNY in the early 1990s. On the one hand, to this day I am amazed at what law clerks were asked to do when we were at most a year or two out of law school. I wish I knew then what I know now about practice and procedure. On the other hand, my judge absolutely reviewed everything we did, vetoed our recommendations at times, revised documents that we drafted for him, etc. He was the judge, not us.
Thank you. As you say, she should resign or be impeached. And the actors in the process by which she was nominated and confirmed should be asked on the record what the hell they were thinking.
2x federal clerk here--one district, one circuit. The aging life-tenured judges don't help, either. I can name at least three circuit judges who hand off substantially all of the work to their clerks, who then present drafts to the judge for a hand-wave of stylistic edits, maybe. One of those judges doesn't read the briefs; another sleeps at argument; the third is openly known to be senile and of no guidance to his clerks.
The issue of aging judges is a serious one (and I'll post below a link to a piece from Business Insider, by Camila DeChalus and C. Ryan Barber, that delved into it in great detail).
When I clerked for the Ninth Circuit, there was one particularly elderly judge who pretty much delegated everything to their clerks. We had a sitting with this judge, and the members of the panel had to have a follow-up call on some matter. The participants on the call were my boss, the second judge on the panel, and the CLERK to the superannuated third judge.
This clerk was actually a law school classmate. So one of my co-clerks (who was also a classmate) and I joked, "Who gave [X] a presidential commission?"
We also referred to the situation as "Weekend at Judgie's," a la "Weekend at Bernie's." For those of you too young to remember that film, Wikipedia explains that it "tells the story of two young insurance corporation employees who discover that their boss, Bernie, is dead after arriving at his house in The Hamptons"—and then "attempt[] to convince people that Bernie is still alive until they can leave, to prevent them from being falsely suspected for causing his death."
The situation also reminded me of Justice Thurgood Marshall's famous quip to his clerks: "If I die, prop me up and keep on voting!"
Any Judge who delegates so much to inexperienced clerks can be assumed to use AI extensively on the work he/she purportedly does himself/herself.
Greetings! I am not yet a law student, so this content is fascinating to me, especially dynamics between clerking at different levels of the judiciary. Out of curiosity, is it standard for law graduates to start off with a district court clerkship first, followed by a clerkship with a court of appeals judge or higher? Or is the order sometimes reversed? I'm curious about this because of how you describe the workload and autonomy that district judges have, vs working at the court of appeals.
It's increasingly common for people to do two clerkships—see link below for how this plays out in the context of SCOTUS clerkships—but there's no set order. It often depends on when clerks are able to get their offers for, in terms of when the judges who hire them have openings.
My personal view is that if you have a choice, it's better to do the circuit-court clerkship right out of law school, followed by the district-court clerkship. The circuit-court clerkship is more academic in nature, closer to your law school experience, and it will prepare you for the (generally more challenging) district-court clerkship. But again, folks don't always have a choice.
https://davidlat.substack.com/p/supreme-court-scotus-clerks-clerkships-2000-v-2025
Good column, David. I believe I read recently that Justice Alito has his clerks write the first draft of his opinions. He then carefully edits. I also heard from a former clerk for Breyer that while he encouraged them to write drafts, he graciously accepted them before filing them in a desk drawer never to be seen again.
Thanks! Two thoughts:
1. That's interesting re: Breyer. He wasn't not known as one of the justices who did a lot of his own writing; in the pre-Roberts Court, that was generally said to be Justice Stevens.
But Albert Yoon, one of the professors I interviewed for this piece, did an interesting study back in 2010. He and his co-author analyzed the variability in justices' writing style over the years, thinking that the higher the variability, the greater reliance on clerks (because if a justice's writing style doesn't vary much over multiple Terms, during which the justice has multiple classes of clerks, the justice is probably be doing their own drafting or at least editing very heavily).
The two justices with the lowest variability scores in the pre-Roberts Court were Breyer, which would be consistent with what your friend told you, and Scalia, who was widely regarded as having had a very distinctive writing voice (and being very hands-on as an editor).
I would be interested in having someone use AI to run a study like this for the current Court.
LINK: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1668735
2. On the current Court, Justice Alito said this about his process (per SCOTUSblog—link below):
<<When it comes time to write an opinion, Alito said, his process for doing so is “nothing very radical.” One of his law clerks first produces an outline for the draft, discusses that outline with Alito, and then drafts the opinion. He then “sits down at my word processor and edit[s]” it thoroughly. Separate writings—concurring or dissenting opinions—are “more personal,” Alito said, and he is therefore “more likely to do a draft” himself, rather than delegate the first draft to a law clerk.>>
So while you're right that he lets clerks do the first drafts of majority opinions, it sounds like he sometimes (or maybe often?) drafts his own separate writings.
I've also heard that Justice Kagan either does some of her own drafting, or edits so heavily that it's as if she drafted.
LINK: https://www.scotusblog.com/2026/05/justice-samuel-alito-opens-up-about-oral-arguments-judicial-security-and-his-writing-process/
I obviously read about Alito in the SCOTUS blog you mention. Thanks for adding some more depth to the subject.
I was a clerk in the EDNY in the early 1990s. On the one hand, to this day I am amazed at what law clerks were asked to do when we were at most a year or two out of law school. I wish I knew then what I know now about practice and procedure. On the other hand, my judge absolutely reviewed everything we did, vetoed our recommendations at times, revised documents that we drafted for him, etc. He was the judge, not us.
Thank you. As you say, she should resign or be impeached. And the actors in the process by which she was nominated and confirmed should be asked on the record what the hell they were thinking.
2x federal clerk here--one district, one circuit. The aging life-tenured judges don't help, either. I can name at least three circuit judges who hand off substantially all of the work to their clerks, who then present drafts to the judge for a hand-wave of stylistic edits, maybe. One of those judges doesn't read the briefs; another sleeps at argument; the third is openly known to be senile and of no guidance to his clerks.
The issue of aging judges is a serious one (and I'll post below a link to a piece from Business Insider, by Camila DeChalus and C. Ryan Barber, that delved into it in great detail).
When I clerked for the Ninth Circuit, there was one particularly elderly judge who pretty much delegated everything to their clerks. We had a sitting with this judge, and the members of the panel had to have a follow-up call on some matter. The participants on the call were my boss, the second judge on the panel, and the CLERK to the superannuated third judge.
This clerk was actually a law school classmate. So one of my co-clerks (who was also a classmate) and I joked, "Who gave [X] a presidential commission?"
We also referred to the situation as "Weekend at Judgie's," a la "Weekend at Bernie's." For those of you too young to remember that film, Wikipedia explains that it "tells the story of two young insurance corporation employees who discover that their boss, Bernie, is dead after arriving at his house in The Hamptons"—and then "attempt[] to convince people that Bernie is still alive until they can leave, to prevent them from being falsely suspected for causing his death."
The situation also reminded me of Justice Thurgood Marshall's famous quip to his clerks: "If I die, prop me up and keep on voting!"
https://www.businessinsider.com/gerontocracy-federal-judges-red-white-and-gray-courts-supreme-2022-8