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> Former clerks were 16 percentage points more likely to attract the votes of the justice for whom they had worked One question I immediately have is that are

> Former clerks were 16 percentage points more likely to attract the votes of the justice for whom they had worked One question I immediately have is that are they controlling for the side that the clerk argues on behalf of? I would expect clerks for "liberal" justices would probably argue on behalf of the liberal side in a SCOTUS case, and likewise for conservative leaning clerks and justices. In other words: could a liberal side of an argument (say: pro-gay-marriage) hire a former conservative-justice clerk and be more likely to have a conservative justice rule for the liberal argument?

jskdvsksnb 6y ago
Judicial methodology counts for something - see Gorsuch's recent ruling on sex discrimination. My understanding is clerks are generally so used to thinking like the justice they clerked for that they could tease out arguments which would be persuasive. Gorsuch may be socially conservative but he's obviously very susceptible to "originalist" arguments - if you want his vote, you need to speak to the text of the statute.
- notafraudster 6y ago
  Not sure why this comment was marked dead, so I vouched. I'm assuming an overly sensitive filter nuking comments because your account is new and the comment uses words predictive of politics? My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held. But at the very least what you're saying is something worth thinking about. Given that Oyez makes every supreme court oral argument public and the filings are clearly public, it seems like there probably would be a case for any number of text learning methods to try to identify formalist style in legal arguments for an analysis like this.
  - nickff 6y ago
    >"My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held." I never understood this logic, because it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised, because they had a strong originalist argument. Breyer on the other hand, with his 57-factor balancing tests, always finds a way to find in favor of his favored side.
    - gotoeleven 6y ago
      No thanks, I'd rather the plain words of a governing document be interpreted more like a living organism that evolves with the times. That way I can get exactly what I want right now without having to convince anyone else beyond 5 old people to vote for it.
      - epicureanideal 6y ago
        I assume this is sarcasm?
    - gamblor956 6y ago
      it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised That doesn't describe Scalia at all. Scalia applied originalism when it suited him, and abandoned it when it interfered with his ideological goals. Scalia like most SCOTUS justices, cared little for the actual litigants, since they were largely irrelevant to the matters at hand other than as vessels for bringing the matter to court. Due to the length of time it takes cases to get to the Supreme Court, many of the named litigants aren't even the original parties, the original parties having long since died or left office.
      - nickff 6y ago
        The justices definitely think about the litigants, and similarly situated parties. Sotomayor and Ginsburg regularly made litigant-related emotional appeals (usually near the end of oral argument), notably in the healthcare and DAPA/DACA cases. I do not recall Scalia making emotional appeals, but he was sympathetic to the administrative agencies (in a manner which I see as inconsistent with most of his other jurisprudence, and which he later drew back from).
        gamblor956 6y ago
        Yes, they think about the litigants during oral arguments, and in dicta (side remarks in an opinion) where it doesn't matter. The facts of the litigants don't matter to the legal reasoning, because SCOTUS decides matters of law, not fact.
- mantap 6y ago
  It's actually textualism not originalism. Originalism considers the original lawmakers' intent whereas textualism only considers the current meaning of the words of the statute and ignores intent. In other words, originalism considers unintended consequences to be outside the scope of the law, whereas textualism considers them to be within scope.
- SllX 6y ago
  Textualist in Gorsuch’s case, his position in the case you cited was textualist, not originalist. Clarence Thomas would be a better example of an originalist on the court.
- erikpukinskis 6y ago
  I think you’re confusing textualism for originalism. Textualism means the wording of the statute is paramount. Originalism means you supplement the text with a historical analysis of the people who wrote it and try to interpret the words in the way the original writer intended.
notafraudster 6y ago
Yes, the article does adjust for most of the confounders you'd expect. https://journals.sagepub.com/doi/pdf/10.1177/1065912920948138 https://journals.sagepub.com/doi/pdf/10.1177/106591292094813...
- timwilder 6y ago
  The second paper they link with “similar findings” appears to just say that experienced attorneys win more haha. First paper does seem to substantiate article.
Spooky23 6y ago
Supreme Court cases are usually over arcane technicalities of law. Knowing how to craft an argument towards the interest of one of the judges matters. Not only for arguing the case, but for getting the case on the docket. Conservative vs liberal is less important IMO.
abhorrence 6y ago
I know several former clerks. Their own political leanings frequently do not align with the justice the clerked for, though I assume they tend to know what types of arguments will be more likely to sway that particular justice.
thaumasiotes 6y ago
> One question I immediately have is that are they controlling for the side that the clerk argues on behalf of? This should happen automatically without the authors needing to handle anything specially, as long as you believe the court is arranged into sides that vote in blocs. (And if you don't believe that, the question doesn't appear to make a lot of sense?)

jskdvsksnb 6y ago

Judicial methodology counts for something - see Gorsuch's recent ruling on sex discrimination. My understanding is clerks are generally so used to thinking like the justice they clerked for that they could tease out arguments which would be persuasive. Gorsuch may be socially conservative but he's obviously very susceptible to "originalist" arguments - if you want his vote, you need to speak to the text of the statute.

notafraudster 6y ago
Not sure why this comment was marked dead, so I vouched. I'm assuming an overly sensitive filter nuking comments because your account is new and the comment uses words predictive of politics? My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held. But at the very least what you're saying is something worth thinking about. Given that Oyez makes every supreme court oral argument public and the filings are clearly public, it seems like there probably would be a case for any number of text learning methods to try to identify formalist style in legal arguments for an analysis like this.
- nickff 6y ago
  >"My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held." I never understood this logic, because it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised, because they had a strong originalist argument. Breyer on the other hand, with his 57-factor balancing tests, always finds a way to find in favor of his favored side.
  - gotoeleven 6y ago
    No thanks, I'd rather the plain words of a governing document be interpreted more like a living organism that evolves with the times. That way I can get exactly what I want right now without having to convince anyone else beyond 5 old people to vote for it.
    - epicureanideal 6y ago
      I assume this is sarcasm?
  - gamblor956 6y ago
    it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised That doesn't describe Scalia at all. Scalia applied originalism when it suited him, and abandoned it when it interfered with his ideological goals. Scalia like most SCOTUS justices, cared little for the actual litigants, since they were largely irrelevant to the matters at hand other than as vessels for bringing the matter to court. Due to the length of time it takes cases to get to the Supreme Court, many of the named litigants aren't even the original parties, the original parties having long since died or left office.
    - nickff 6y ago
      The justices definitely think about the litigants, and similarly situated parties. Sotomayor and Ginsburg regularly made litigant-related emotional appeals (usually near the end of oral argument), notably in the healthcare and DAPA/DACA cases. I do not recall Scalia making emotional appeals, but he was sympathetic to the administrative agencies (in a manner which I see as inconsistent with most of his other jurisprudence, and which he later drew back from).
      - gamblor956 6y ago
        Yes, they think about the litigants during oral arguments, and in dicta (side remarks in an opinion) where it doesn't matter. The facts of the litigants don't matter to the legal reasoning, because SCOTUS decides matters of law, not fact.
mantap 6y ago
It's actually textualism not originalism. Originalism considers the original lawmakers' intent whereas textualism only considers the current meaning of the words of the statute and ignores intent. In other words, originalism considers unintended consequences to be outside the scope of the law, whereas textualism considers them to be within scope.
SllX 6y ago
Textualist in Gorsuch’s case, his position in the case you cited was textualist, not originalist. Clarence Thomas would be a better example of an originalist on the court.
erikpukinskis 6y ago
I think you’re confusing textualism for originalism. Textualism means the wording of the statute is paramount. Originalism means you supplement the text with a historical analysis of the people who wrote it and try to interpret the words in the way the original writer intended.

notafraudster 6y ago

Yes, the article does adjust for most of the confounders you'd expect. https://journals.sagepub.com/doi/pdf/10.1177/1065912920948138 https://journals.sagepub.com/doi/pdf/10.1177/106591292094813...

timwilder 6y ago
The second paper they link with “similar findings” appears to just say that experienced attorneys win more haha. First paper does seem to substantiate article.

Spooky23 6y ago

Supreme Court cases are usually over arcane technicalities of law. Knowing how to craft an argument towards the interest of one of the judges matters. Not only for arguing the case, but for getting the case on the docket. Conservative vs liberal is less important IMO.

abhorrence 6y ago

I know several former clerks. Their own political leanings frequently do not align with the justice the clerked for, though I assume they tend to know what types of arguments will be more likely to sway that particular justice.

thaumasiotes 6y ago

> One question I immediately have is that are they controlling for the side that the clerk argues on behalf of? This should happen automatically without the authors needing to handle anything specially, as long as you believe the court is arranged into sides that vote in blocs. (And if you don't believe that, the question doesn't appear to make a lot of sense?)