Law Clerks: An Argument For Référendaires

I am not aware of the exact arrangements with respect to the law clerks at the Supreme Court, though the basic terms are posted on the court’s website. The program in place at the court is nevertheless similar to that at the United States Supreme Court. The clerks are typically new graduates, who serve a one year appointment, and then move on to various careers.

The European Court of Justice has a different system. Judges hire their own référendaires, who serve for much longer periods of time. Sally J. Kenny has compared the roles of the référendaires and the clerks at the U.S. Supreme Court in an article in Comparative Political Studies, Vol. 33, No. 5, 593-625 (2000), which is available at http://cps.sagepub.com/cgi/content/short/33/5/593. The most surprising thing for a Canadian lawyer is the expertise of the référendaires, who “come from the ranks of lawyers, legal academics, legal administrators, and even judges.” They are older than the clerks at the Supreme Court of Canada, and include professors and senior members of the profession.

The advantages of the European system are obvious. Although students have the edge on research and a felicity for hard work, they have no real knowledge of litigation. A new graduate from a law school, without a fundamental grasp of the law, is simply not in a position to give judges the kind of assistance that they deserve. Much of this is a matter of simple learning: it takes time to develop the skills that are needed in any employment, and all the more so in intellectual professions. There are also advantages if the judges know their clerks. This is only possible in a working relationship that develops over a number of years.

My own motivation in suggesting the use of professional clerks, however, lies with the jurisprudence. The Supreme Court is more concerned with policy than it was in the past. This is an inevitable product of the Charter of Rights, and the general constitutional mandate of the court, which now occupies most of its attentions. There are problems, however. The decisions of the court have become more discursive, and the needs of practice tend to get overlooked in the more exciting world of policy. From a practical perspective, lower courts and tribunals need succinct, clear-cut rulings, which can be easily applied to the cases that come before them. Speculative excursions usually muddy the water.

The argument for référendaires in this context is not merely that they would have a better understanding of the demands of practice. It is also that the use of more permanent clerks, who come to know a particular judge’s thinking, would allow the members of the court to develop more explicit positions. This would add a more definite element to their reasoning, improve the predictability of the court’s decisions, and bring out the patterns in the general jurisprudence. All of this would help to clarify the rules of process in the lower courts.

The usual criticism of professional clerks is that they would have too much say in the jurisprudence. This is a rhetorical complaint, however, and the real concern lies in the opposite direction. The current clerks have their own influence and much of the writing that makes its way into decisions comes, one way or the other, from the work of students. Sally Kenney helps to allay the conventional fears:

The référendaires I interviewed worked in very close collaboration with their members. There was never any doubt about who was in charge, and I saw no evidence of members delegating excessive responsibility to their staffs.

The judges had full control of the situation and retained the decision-making prerogative, in part because they had full control of the clerks’ employment.

The existing system has received its share of criticisms over the years. There have been complaints, more frequently in the United States, that it fosters elites. There have also been suggestions that the present arrangement gives the country’s professoriate too much influence on the work of the court. These are secondary concerns, however, and do not reflect the pragmatic considerations behind the European view. The work on any constitutional court is enormous and Kenny suggests that the judges would find it difficult if not impossible to meet the standard required of them without the assistance of the référendaires.

The simple objective of the European system is to produce the best and most informed decisions. This is the right approach, which recognizes the role played by these constitutional courts in any political system that subscribes to the separation of powers. There is no reason to abandon the existing program altogether, and the current clerks could be accommodated in any system that replaced it. New graduates could still serve as assistant clerks, under the tutelage of more experienced lawyers, who have a better understanding of the system, the needs of the judges, and the demands of the caselaw.