Law Clerks as Advisors: A Look at the Blackmun Papers

The Justices of the United States Supreme Court seek advice, by way of cert pool memos, when making their consequential agenda-setting decisions. There is some debate over the extent to which these law clerks actually influence the Justices. Focusing on the certiorari stage and on the information and advice provided to the Court via the cert pool memos, we ascertain the extent to which the contents of the memos drive the decision making of the Court. We find that information about conflict, amici, and the position of the United States does indeed influence the Court’s votes, but also that the clerks’ specific advice, the apparent percolation of the issue, and the perceptions of the strength of the reasoning below matters as well.

We conclude with some thoughts on the findings and directions for future research.