The Law Clerks’ Recommendations and the Conference Vote On-the-Merits on the U.S. Supreme Court

Abstract

To what extent did Justice Harold Burton vote in accord with the recommendations of his clerks regarding whether to affirm or to reverse the decision of the lower court? We examined this question regarding his conference votes on-the-merits during three terms of the Vinson Court. We discovered that Burton’s agreement rate with his clerks exceeded his agreement rates with all eight of his colleagues and that the clerks’ agreement rate with Burton’s conference votes exceeded their agreement rates with the other eight justices’ conference votes. Those results support the view that the relationship between a law clerk and his justice can be perceived in terms of principal-agent theory. These findings suggest that the Court is an efficient organization and that clerks are trying to help rather than influence their employer; i.e., clerks do not use their positions to pursue ideological goals.