It sounds like a horrible Fox reality show. “We scoured the country and found nine really old people. We’re gonna pair them with thirty six young people fresh out of school and make them work together for the next year. Only on Fox!”
But, its not Fox. Ladies and gentlemen, its your Supreme Court!
From time to time the United States Supreme Court becomes the topic of public discussion. Usually regarding controversial cases or the appointment of a new Justice. One under-reported and under-appreciated aspect of the Court, however, is the Justices’ employment of law clerks.
It really is an interesting branch of government that the Supreme Court has evolved into. The Justices of the Supreme Court are boundary setters. They draw lines in society. Between the people and the government. Between the states. Between state and federal government. In many ways, it is a fairly narrow mandate over which they govern. It is an undeniably important and powerful mandate however. They confront the most divisive issues confronting the nation. Issues that as a society we have decided only they are qualified to judge.
In a republic like ours however, how do you create such an institution? One that is immune from political and societal pressures but which is simultaneously expected to fairly reflect the most important values of that society. How do you give nine people nearly unlimited power within their sphere and only limited ability to remove or control them.
Once chosen, these Justices will essentially become immune from political pressure. They will never have to run for office. They never have to be re-elected. They can be impeached for various offenses but in reality they are free to serve so long as they are fit. So long as they are able.
One obvious characteristic that should be sought in these people is to find the best person for the job. The SCOTUS Justices are men and women who have spent their entire lives devoted to the law and to abstract concepts like justice and truth. Much of their life is spent in the public service. They toiled for society in relative anonymity to the population at large, even if within their chosen fields they might be viewed as rock stars.
Generally, at the time of their appointment, the SCOTUS Justices are among the best and the brightest in their field. They have gone to the best schools. Apprenticed under giants in their field. Spent years perfecting their craft and practicing the law. Then, after 25 years of education and 30 or more years of continuous learning on the job, they are selected and tasked with being the ultimate judge of society.
But, especially in the ever changing society in which we live in, how does that justice stay relevant to society? Sure, they are extremely experienced, and smart, and wise. They are also, to put it politely, in the later half of their life. They are experienced people in their 50s, 60s, 70s, and even 80s. Justice Stevens, currently the oldest Justice on the court, was born in 1920. He’s almost as old as John McCain!
As the justices age they become further and further removed from the current sensibilities and mores of the majority of society. The SCOTUS Justices are obviously learned men and women but the things that they learned and experienced may not relate well to the world lived by younger generations. How do these old fogies know what society wants and needs today?
It seems to me that the Justices’ employment of law clerks alleviates some of these concerns. The Supreme Court law clerks are young and are recent law school graduates. They are in many ways younger versions of the justices themselves. Surely not as talented or as experienced as the justices themselves. But their early education, intellectual interests and career ambitions align nicely with the justices. These clerks may not have the qualifications that you would expect from a justice. They do have however one thing that that justice will never have: a youthful outlook on life. A view on life of someone who has grown up and matured in the world today.
Moreover, it’s not just the combination of a single justice in a single law clerk. Each justice is paired with four law clerks, 36 in all for the entire Supreme Court. What you end up with is a horde of young intellectuals who love the law, who are able to advise the court on a daily basis, and who are able to provide the court with a worldview that the Justices themselves lack. It really is quite fascinating. A unique marriage of young and old; of inexperience and wisdom; of youthful exuberance and the experience of old age.
It’s quite ingenious if you think about it. An unelected body of “village elders,” supplemented in an advisory role by four times as many young people, all for the primary purpose of drawing societal boundaries.
With that in mind, who are these SCOTUS law clerks?
Who are the SCOTUS Law Clerks
Every year more than one thousand applications are submitted to the Supreme Court for clerkship positions. Thirty-six to thirty-eight of these highly credentialed recent law school graduates will be hired to advise the most powerful judges in the United States on the the most important and divisive legal issues of the day.
Clerks are disproportionately hired through a small number of educational institutions and circuit courts of appeal. Approximately 40% of SCOTUS clerks in recent years have graduated from Harvard or Yale. Eighteen of the thirty-four clerks (53%) signed up for the October 2008 term attended one of those two institutions. Its not just certain educational institutions which dominate the process however. Between 1991 and 2006, Judge J. Michael Luttig from the 4th U.S. Circuit Court of Appeals sent 43 of his 45 law clerks to the Supreme Court.
Clerks are disproportionately white males. In 2005, just under 50 percent of law school graduates were women. Women rarely make up as much as a third of the Supreme Court clerk applicant pool. Thirteen of the 34 clerks for the October 2008 term are women. As recently as 2006, women accounted for only 7 of the 37 law clerkships in 2006. Justice Breyer has hired more women than any other member of the court; more than half his law clerks recently have been women. Conversely, Antonin Scalia and Anthony Kennedy hired 2 and 3 women, out of 28 clerks, between 2000 and 2006.
The Supreme Court does not provide any statistics about clerk racial demographics, so finding such information is not especially easy. It appears however that there were three minorities in 2006, five last in 2005, eight in 2004 and nine in 2002.
Justices of the Supreme Court are often former clerks. Of the current members of the Supreme Court, Justice Roberts, Justice Stevens and Justice Breyer were former clerks.
A clerk’s salary for the one year position is about $65,000. Once they leave their clerkships, clerks can be expected to receive bonuses from law firms approaching $250,000.
The Clerks Role
Strict rules of confidentiality prevent the clerks from discussing in detail the inner-workings of the Court. Generally, however, there are three main aspects to the job: reviewing petitions for certiorari and writing memos for the cert pool; writing bench memos discussing pending cases with their Justice; and assisting in drafting opinions.
As noted, one of the significant functions that the clerks perform is analyzing whether petitions for writ of certiorari should be granted. Cert petitions are written arguments asking the Court to accept a case for review. The Supreme Court receives about 8,000 petitions annually and it hears about 80 arguments or so each term.
The law clerks for the justices are randomly assigned cert petitions. They are then tasked with the duty of analyzing and evaluating the arguments for and against review of the case by the Court and to make a recommendation as to whether the Court should review the case on the merits.
Each Justice reads his or her clerks memorandums and decides whether or not such case should be put on a weekly “discuss list.” It only takes one Justice’s request to be put on the discuss list. All the Justices look at those cases in order to make a determination whether the Supreme Court should accept the cert petition. Several types of cases are more likely to be accepted: “circuit splits” where multiple circuit courts of appeal have reached a different result regarding essentially the same question; the striking down of an act of Congress; and the striking down of a state law.
Clerks often draft parts of the opinion or possibly the entire first draft under the instructions and watchful eye of the Justice. It would be a mistake however to think that the final product is not essentially the product of the Justice himself. In the words of former clerk Erik Jaffe, who clerked for Justice Clarence Thomas, “So when the clerks take the first stab at it, everything goes through multiple layers of editing and does not leave anyone’s chamber without the strong and controlling hand of the Justice making sure that it is saying what that particular Justice and the other members of the Court joining that opinion want it to say.”
SCOTUS Clerks for October 2008 Term
Law Clerks of Chief Justice John G. Roberts
1. William Baude (Yale 2007)
2. Jeffrey Harris (Harvard 2006)
3. Erin Murphy (Georgetown 2006)
4. Porter Wilkinson (UVA 2007)
Law Clerks of Justice John Paul Stevens
1. Jessica Bulman-Pozen (Yale 2007)
2. Cecelia Klingele (Wisconsin 2005)
3. Lindsey Powell (Stanford 2007)
4. Damian Williams (Yale 2007)
Law Clerks of Justice Antonin Scalia
1. Jameson Jones (Stanford 2007)
2. Yaakov Roth (Harvard 2007)
3. David Thompson (Stanford 2007)
4. Moshe Spinowitz (Harvard 2006)
Law Clerks of Justice Anthony M. Kennedy
1. Ashley Keller (Chicago 2007)
2. Travis Lenkner (Kansas 2005)
3. Steven Shepard (Yale 2007)
4. Chris Walker (Stanford 2006)
Law Clerks of Justice David H. Souter
1. Erin Delaney (NYU 2007)
2. Michael Gerber (Yale 2005)
3. Warren Postman, (Harvard 2007)
4. Noah Purcell (Harvard 2007)
Law Clerks of Justice Clarence Thomas
1. William S. Consovoy (GMU 2001)
2. Jennifer Mascott (GW 2006)
3. Patrick Strawbridge (Creighton 2004)
4. Claire Evans (Rutgers 2002)
Law Clerks of Justice Ruth Bader Ginsburg
1. Sue-Yun Ahn (Columbia 2006)
2. Miriam Seifter (Harvard 2007)
3. Kevin Schwartz (Yale 2006)
4. Rob Yablon (Yale 2006)
Law Clerks of Justice Stephen G. Breyer
1. Brianne Gorod (Yale 2005)
2. Seth Grossman (Yale 2005)
3. Aileen McGrath (Harvard 2007)
4. Matthew E. Price (Harvard 2006)
Law Clerks of Justice Samuel Alito
1. Dana R. Irwin (Yale 2002)
2. Jack L. White (Pepperdine 2003)