Replies

He relies on David Brooks - no person more or less than ol' Krypt himself has discredited the hit piece he refers to from the *conservative* at the NY Times, instead of himself, to *attack* Miers' writings.

The attack on Miers' writing surprised me. Unless I'm absolutely off the mark, Scalia is the only Justice who pens his own draft opinions.

The role of the clerks is . . . large: Bork should have known better. One brief description here:

Q – Ole Moen:
My impression is that the clerks play a greater role in writing opinions now than previously. I know that practice varies from justice to justice (and from case to case). Also, by the pooling of the certiorari* screening process, [some] clerks seem to play a more decisive role than previously. I would like your views on both questions. [*Note: a writ of certiorari is a decision by the Supreme Court to hear an appeal from a lower court.]
A – JOHN YOO:
I think that clerks have played a significant role in writing opinions for many decades. If one looks at reports of the late [Chief Justice Earl] Warren and early [Chief Justice Warren] Burger courts, it seems clear that clerks were already at that time playing an important role.
Much earlier in American history, there were no clerks and justices wrote the opinions themselves. If one looks at the records of the early Supreme Court, for example, it seems clear that the justices wrote all of their opinions on their own. I think that clerks play their most influential role in what is known as the "cert pool." The cert [certiorari] pool refers to the cases that are appealed to the Supreme Court. The justices vote every few weeks on what cases to accept from that pool. It is the clerks who review those cases and draft a memo summarizing the issues and recommending to the justices where to grant or deny an appeal.