Judge Ross Sex Scandal Overlooks a More Important Conversation

The scandal surrounding Judge Eleanor Ross has drawn attention for its lurid facts and the perceived inadequacy of the US Court of Appeals for the Eleventh Circuit’s response. But it overshadows a more serious problem: Ross allegedly signed many clerk-written civil orders without edits and assigned civil cases to law clerks without reviewing the parties’ filings.

That should alarm anyone who cares about the federal courts. Debates on whether to provide law clerks with greater employment protections treat the matter as a human resource challenge and distract from the real issue. In federal courts across the country, the law clerks—not the judges—are the ones who dispense justice in a troublingly large number of cases.

This isn’t just a managerial problem; it upends the structure of our Constitution. And the answer isn’t more regulation, but more judges—a lot more.

Article III of the Constitution vests US judicial power in judges nominated by the president with the Senate’s advice and consent. It grants them life tenure and guaranteed salaries to ensure judicial independence.

James Madison and Alexander Hamilton didn’t envision judges as administrators supervising anonymous young lawyers who shape outcomes behind the scenes. Yet law clerks are the hidden machinery through which the federal courts manage Congress’ failure to authorize enough judgeships, often exercising the unchecked power to decide cases.

Federal law clerks weren’t always junior judges. The earliest clerks hired in the late 19th century were closer to secretaries whose roles transformed as caseloads surged without matching increases in authorized judgeships.

The federal courts responded by shifting less visible but quintessentially judicial tasks—such as drafting opinions—to law clerks. Judge Diarmuid O’Scannlain called this a “devil’s bargain” producing “assembly-line justice” in busy federal courts where clerks or staff attorneys effectively dispose of tens of thousands of cases each year with minimal oversight.

No new federal district judgeships have been created since 2003, though filings and backlogs continue to grow. Congress even enabled the federal courts to use clerks to respond to the judge deficit.

Congress historically used the appropriations process to impose strict limits on the number of clerks. In 1983, it authorized the federal courts to “appoint necessary law clerks” and left it to the US Judicial Conference to set a limit, if any. Today, the Judicial Conference allows active federal judges to employ between two and four law clerks in addition to secretarial staff.

The 118th Congress bucked the trend of neglect and passed the JUDGES Act of 2024 to create 66 new district court judgeships. But then-President Joe Biden vetoed the bill after the politics of who would fill the new seats overtook the bipartisan case for creating them.

Though reintroduced with bipartisan support, passing the JUDGES Act hasn’t been a priority for the 119th Congress. Yet even the JUDGES Act is inadequate. Creating 66 new judgeships might address the statistical backlog of 700,000 pending cases in certain districts. But it doesn’t resolve the shadow backlog caused by decades of inaction: the tens of thousands of cases resolved every year by law clerks that a century ago would have been handled personally by Article III judges.

Current law authorizes approximately 900 permanent Article III judgeships. At any given time, the federal courts employ 2,500 to 3,000 law clerks to support those judges.

Imagine if Congress flipped those numbers and authorized 2,500 to 3,000 judgeships supported by 900 law clerks. Judges would do much more hands-on work—but the number of cases assigned per judge would fall dramatically.

In today’s political climate, federal judgeships are viewed through a partisan lens, and any proposal to create new seats raises the question: Which political party gets to fill them? After all, the JUDGES Act itself was a watered-down version of earlier proposals to create between 77 and 203 new judgeships—and it was still vetoed for partisan reasons.

But there are ways to minimize partisan advantages. Congress could create the judgeships in staggered waves beginning only after the next presidential election, to ensure that the party affiliations of the presidents who will make these appointments remains unknown at the time of enactment.

The legislation could first add new seats to address the statistical backlog in areas designated as judicial emergencies or based on Judicial Conference workload recommendations. After that, they could incrementally create new judgeships across the nation to respond to the shadow backlog but prevent court-packing in any district or circuit. Perhaps paradoxically, creating a much larger number of judgeships makes each individual judgeship less valuable from a partisan perspective.

These new judgeships wouldn’t be free, but Congress already funds thousands of law clerk positions at salaries ranging from about $75,000 to $197,000. Creating judgeships while reducing the total number of law clerks by reinstating the former statutory cap would minimize the costs of those judgeships.

Congress could address any remaining costs through the appropriations process. If the federal government funds the machinery that brings people into federal court, it possesses an obligation to fund enough judges to decide those cases without needing to delegate judicial functions to law clerks.

This doesn’t mean that we must pretend federal judges can work without help. A law clerk can test arguments, cite-check drafts, and help a federal judge think. But when clerks become the effective first-line decision makers in cases that parties believe are being decided by Article III judges, the judiciary has crossed a constitutional line.

Ross’ case may be an extreme example, but the institutional response to her admitted signing of many clerk-written orders without sufficient review should worry us precisely because the Eleventh Circuit didn’t view her actions as an aberration. If the federal judiciary truly sees clerk-driven adjudication as ordinary operations, Congress must restore the line Article III draws.

This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Anthony M. Ciolli is a practicing faculty member at St. Mary’s University School of Law.

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