How the Supreme Court Helps Keep American Law White and Male

Bizar Male

The process to become a clerk to a Supreme Court justice varies by chamber, but the reward for those who make it there is enormous. The standard hiring bonus for an associate coming from the Supreme Court is now $400,000 at the top law firms (plus the $190,000 annual salary). Former Supreme Court clerks are at the top of the list for judgeships later in life, and such a clerkship is all but required to teach at a top law school or to work in places like the Office of the Solicitor General at the Department of Justice. It is no coincidence that the last four justices to be confirmed to the Supreme Court all had previously clerked at the court themselves. And of the last 12 solicitors general of the United States, only three did not clerk at the Supreme Court.

Until the 1970s, most Supreme Court clerks came straight from law school. In that decade, it became more standard for graduates to apply to a SCOTUS clerkship after clerking for a lower court judge first. And since the mid-’90s, every Supreme Court clerk has already worked for another judge for at least a year.

But there is a new hiring trend bubbling up at the Supreme Court: the expectation of not just one, but multiple lower court clerkships before getting to One First Street.

Using data from multiple sources, including David Lat’s reporting on Above the Law, the legal news website he founded, Wikipedia’s record-keeping, and my own research, I was able to document this radical trend that has received scant attention even within the legal community.

From 1996 to 2016, 16 percent of Supreme Court clerks had clerked for more than one judge before making it to SCOTUS. In the past seven years, that number has skyrocketed to 61 percent. In fact, just as a matter of raw numbers, there have been more multiyear clerks since 2016 than the previous 20 years combined.

And this data doesn’t even take into account the Bristow Fellowship—a yearlong position within the U.S. Solicitor General’s office long seen as another post-clerkship path to getting a SCOTUS clerkship. Of this year’s five Bristow Fellows, every single one has clerked for at least two years in the lower courts.

Some might ask: The few hundred young lawyers who compete for the 40 or so SCOTUS clerkships have already jumped through so many hoops, what is one or two more years? But if the credential opens the doors for future opportunities, changing the game could have long-term consequences for who practices law at the highest levels and who is on the short list for future judgeships.

Let’s take just one example: It is nearly impossible to reap the benefits of a yearlong clerkship with any kind of maternity leave. So, if multiple clerkships are now a new requirement to clerk at the Supreme Court—and get that $400,000 bonus afterward—women who take circuit court clerkships must balance a roughly 1 in 20 shot at a SCOTUS clerkship against the biological reality that they have a limited number of years to have a family. The women who are calling me are asking whether it’s worth the sacrifice; whether a shot at the Supreme Court is worth spending another year or two away from friends and family, delaying the practice of law and putting off starting a family.

After four years of college, three years of law school, at least two years of multiple lower court clerkships (many district court clerkships require two years; appellate courts require one), maybe even an additional year as a Bristow Fellow, and one year at the Supreme Court, many women are well into their 30s by the time they even start at a law firm. If you want to become an equity partner, that can be at least eight or nine more years at most firms, and maternity leave—to the extent it isn’t frowned upon to begin with—is often subtracted from your time working toward partner. Some law firms count extra clerkship years toward a lawyer’s partner track or increase starting salary after multiple clerkships. But some don’t. Having one kid is tough on that timeline. Having three or four? Forget it.

And then there’s the economic concern. What about the people who went to law school to help support their families or who took on $300,000 in debt to attend the Harvards or Yales in the first place? It varies a bit by location, but clerks are typically paid around $70,000 a year—and many in deep debt might be reluctant to spend another year on that salary before heading off to a lucrative job at a firm. Or, what about those that are the first in the family to go to college—let alone law school—and don’t have someone to guide them through the evolving passageways of the prestige labyrinth?

So, it should be no surprise that white men still dominate the ranks of Supreme Court clerks. As of 2017, 85 percent of all the justices’ law clerks were white and a third were female. 2018 was the first year that women made up half of the clerks when Justice Brett Kavanaugh hired an all-female group of law clerks. But by 2019, men were back to 68 percent. And the overwhelming majority are white—85 percent as of 2017. (Most Bristol Fellows this year, too, are men, as they were last year … and the year before.)

The type of person most likely able to forgo a law firm salary to clerk for three to five years after law school is going to be someone with both the time and the money to pursue that path. Justices are incentivizing this system and, in some cases, explicitly encouraging it. And the results of doubling down on this type of clerk will reverberate throughout the legal profession—the list of candidates for judgeships or the types of lawyers practicing before the Supreme Court will be increasingly drawn from law students who were already privileged in any number of ways.

And for what? There is no doubt that Supreme Court clerks can have enormous influence over the most important legal issues of our time. After all, the justices read only a handful of the thousands of petitions that ask the court to hear a specific case. It is the law clerks who make vital recommendations of what is wheat and what is chaff. Perhaps we should want them to have more experience—or at least another year on the planet. And yet, of the three law clerks who presumably helped Chief Justice Earl Warren draft Brown v. Board of Education in the 1953-54 term, two had graduated from law school that summer. In 2003, three of Justice Anthony Kennedy’s clerks had just one appellate clerkship when he wrote the majority opinion in Lawrence v. Texas, striking down a Texas law that criminalized sodomy. By 2015, three of his clerks had two clerkships when he wrote for the majority in Obergerfell v. Hodges, establishing same-sex marriage throughout the country. Taking a close look at the individual justices over the course of this trend, it is hard to argue that the change in clerkship experience has fundamentally—or even perceptibly—altered their jurisprudence.

Among the justices, this trend doesn’t fall along ideological or gender lines. Before 2016, only one in five of Justice Ruth Bader Ginsburg’s clerks had spent more than one year as a clerk before working for her. But during her last four years on the bench, nearly 90 percent of her clerks had multiple clerkships. Chief Justice John Roberts, too, hired a majority of his clerks—68 percent—from multiple clerkships. On the other hand, just 20 percent of Justice Neil Gorsuch’s clerks had multiple years clerking before showing up in his chambers during the same time.

It is not obvious why the double (or sometimes triple) pre-SCOTUS clerkship has become so popular, but I can offer some theories. First, when a number of the highest-ranked law schools got rid of grades (Harvard, Yale and Stanford had all dropped letter grades by 2009), judges and justices may have started to look for other metrics of success. The problem with this theory is that nearly all of the hiring at the appellate level is done during law school. So the additional clerkship might provide more training, but it’s not as if the second judge hires only after the first judge has seen the clerks’ work.

Second, and perhaps more convincingly, there used to be a voluntary clerkship hiring plan that encouraged judges to wait to hire until after the second year of law school. The plan, however, offered very little incentive for judges competing for top-tier clerks to follow it, and as a result the plan fell apart in 2014. The resulting rush to hire the best clerks earlier and earlier in the first year of law school may well have contributed to those top students (the ones most likely to compete for Supreme Court clerkships) receiving multiple offers and accepting them. There has, however, been a new plan (which is nearly identical to the old plan) in place for the last couple years, encouraging judges to hire after year two. But it does not appear to be as universally followed as the pre-2014 plan and it doesn’t seem to be making any dent in the double clerkship trend at the upper ends of the appellate ranks either.

Fifth Circuit Judge Gregg Costa, a former clerk to Chief Justice William Rehnquist, bemoaned this trend three years ago among the lower courts, writing that it was not good for the clerks, the judges or the profession of law. “The reduction in the number of people clerking that results from multiple clerkships also likely contributes to the lack of demographic diversity among clerks,” he wrote in 2018. Second clerkships, in his view, “likely further concentrate these jobs among graduates from elite schools,” “reduce the variety of legal perspectives clerks bring to chambers,” and are “much more of a financial hit,” meaning candidates with “financial concerns may be out of contention.”

He then admonished judges to think carefully before contributing to the problem, noting that “giving as many new lawyers as possible that mentoring and training is perhaps more important than ever” and that “hiring someone who has already clerked is at odds with that goal and means there will be fewer practicing lawyers who have had the valuable experience of clerking.”

They have not heeded his advice.

After I picked up a phone call from one woman earlier this month, I mostly listened and asked questions. I asked her whether she thought we needed more mentors for the women coming up behind her and how we could improve the numbers of female Supreme Court clerks. But I also asked her whether her husband could quit his job to follow her around the country for at least three years while she earns a clerk’s salary. I asked her whether it was worth putting off trying to have a family without knowing how hard it might be when they do try.

But the biggest question is one I can’t answer: What happens to the legal profession when there are even fewer individuals filling these federal clerkships and when a process that already advantaged young men from wealthy families has even the best-qualified women calling me to ask me whether it’s worth it?

Not every female lawyer, of course, wants to have children. And not every female lawyer wants to clerk at the Supreme Court. But shouldn’t both at least be an option?

Next Post

Super League punishments could give Everton Europe

After a demoralising 2-1 defeat to Aston Villa on Saturday night, prospects for Everton of getting into Europe next season seem slim indeed. However, there is a possibility of Premier League punishments for the Super League six giving Everton a European place by the backdoor. Punishments for the clubs involved […]