It’s an endless source of fascination to Supreme Court watchers: Where do the baby law clerks come from? Who clerks at the court, what they do afterwards, and how the justices find and hire them are not just matters of careerist inside baseball. A Supreme Court clerkship offers warp-speed career advancement within the highest legal circles. (As researcher Todd Peppers has put it, “No other internship program in the history of the United States has produced as impressive and diverse a collection of individuals as the U.S. Supreme Court law clerk corps.”) Law firms offer recent Supreme Court clerks bonuses of more than $300,000, and the pool of lawyers who file appeals at the high court is composed principally of former Supreme Court clerks. Three current justices are former clerks: Chief Justice John Roberts and Justices Elena Kagan and Stephen Breyer. So were Justice John Paul Stevens and Chief Justice William H. Rehnquist. Also: A Supreme Court clerkship gives 36 young lawyers each year a chance to leave their fingerprints all over constitutional law.
In recent decades, a few patterns have emerged. Clerks have become more and more ideologically aligned with the views of their bosses. As clerkships have become more prized, the pool of clerks has become more exceptional. And the hiring of minority law clerks has long proven challenging at the high court. A study undertaken by Tony Mauro in 1998 found that “fewer than 2 percent of the 394 clerks hired by the current justices during their respective tenures were African-American, and even fewer were Hispanic. About 5 percent were Asian. Women represent an increasing proportion of clerks, but they still amount to only one-fourth of the total.” Those numbers haven’t improved all that much in the past 17 years, despite discussion and debate. When Mauro updated his data in 2014, the percentage of clerks who are women increased from about one-quarter to one-third, but the number of minority clerks, especially those not of Asian heritage, remained low. And the problem has been especially vexing for those troubled by the fact that while women currently represent half of all law school graduates, they remain only a third of the Supreme Court clerk pool.
One vital piece of the clerkship puzzle: It turns out that a handful of well-known “feeder” judges—who send their own former clerks up to the big show—are responsible for funneling an ever-larger group of law clerks to the Supreme Court. As Adam Liptak reported in 2010, “more than half of the clerks who have served on the Roberts court came from the chambers of just 10 judges. Three judges accounted for a fifth of all Supreme Court clerks.”
And the lists of feeder judges, scrupulously updated at Above the Law, reveal that the feeders tend to be, overwhelmingly, white and male. And so the question arises: Does the lack of female and minority feeder judges lead to a corresponding lack of female and minority clerks?
Attempting to answer this question empirically in an upcoming article for the American University Journal of Gender, Social Policy, & the Law, Alexandra G. Hess, a recent graduate of Yale Law School, mashes the numbers with respect to the all-male feeder judges and female clerks. Attempting to explain the underrepresentation of female feeder judges, Hess looked at the period from 1970 (the first year a female judge sent a clerk to the Supreme Court) through 2014, the last year of complete clerk data.
Hess’ findings are fascinating in several ways. She shows that from 1970 to 1994, women were actually overrepresented as feeder judges. By 1994, women represented just 10.9 percent of all federal appellate judges yet comprised 28.1 percent of all feeder judges.
That’s where the good news for gender ends. Her research shows that after 1994, despite the fact that the percentage of women on the federal appellate bench continued to grow, the percentage of women as feeder judges dropped from a high of 28.1 percent in 1994 to 8.6 percent in 1995. It never bounced back. As Hess shows, “as of 2014, though 75.9 percent of federal appellate judges are male, they represent over 90 percent of feeder judges to the Supreme Court.”
What happened in 1994—the year the female feeder judges evaporated? That was the year after Justice Ruth Bader Ginsburg—an extraordinarily powerful feeder judge—was elevated from the federal appeals court to the Supreme Court. (This explains the title of the paper: “The Collapse of the House that Ruth Built.”)
Hess tried to understand what happened after 1994 by running a regression analysis on data from more than 1,000 Supreme Court clerks and the various judges and justices for whom they clerked. Among her many findings came this one shocking data point: “For all judges, having been a Supreme Court clerk and previously sending a clerk to the Court had the largest positive effect on sending a future clerk to the Supreme Court. However, for female appellate judges, sending a clerk to the Court had a large negative impact on sending a second clerk.” In other words, when a woman has a chance to feed a clerk to the high court, it actually decreases her chance of doing so again in the future.
Hess’ conclusion: The pool of “superfeeders” to the Supreme Court is all male. Her data show that in the past five years, 11 judges supplied more than 70 percent of Supreme Court clerks, and 20 judges supplied 90 percent of them. Of the 11 feeders that sent 70 percent of the clerks, none were female. And of the 20 that sent 90 percent of the clerks, only two were women. Somehow, despite the fact that female judges now constitute more than 24 percent of the courts of appeals, they represent only 8 percent of the feeder judges.
What’s going on here? Hess’ conclusion: It’s complicated. The hiring of Supreme Court clerks has much to do with the feeder judge’s reputation, personal relationships, former clerks, geography, and other intangibles that can’t be readily quantified or analyzed. But the lack of powerful female superfeeders also reflects a larger well-documented pattern of general stuckness of women attempting to advance in the highest echelons of the legal profession.
Writing in the Washington Post in May, professor Deborah L. Rhode noted that 88 percent of lawyers are white, and that “women constitute more than a third of the profession, but only about a fifth of law firm partners, general counsels of Fortune 500 corporations and law school deans.” In an article from last year in the Wall Street Journal, Jennifer Smith described studies showing that women still represent only 17 percent of so-called equity partners at firms, female law firm partners still command on average 10 percent less for their services, and female associates are regularly billed out at lower rates.
Moreover, for those of us who like to think of Ruth Bader Ginsburg as one of a kind, it’s worrisome to contemplate the ways in which she may have been the last of her kind. If the phenomenon of female judges driving law clerks into the high court reached its high water mark in 1994, we should stop to ask why. This isn’t simply a matter of getting more women, more minorities, and more diversity at the high court. It’s also a question of nurturing and creating the female leaders of the next generation.
Hess concludes her paper on this depressing note: “The fact is that women are being shut out of what is considered to be a position of status. It seems that even though the federal appellate bench is becoming more diverse, the pool of power players is getting increasingly narrow and continuing to replicate traditional hierarchies of privilege. And it is creating a vicious cycle in which ‘feeder’ faculty members are trying to send their best students to a group of almost exclusively white, male feeder judges who then hope to send their clerks to a majority white, male Supreme Court.”
As Supreme Court clerkships become the golden ticket to all kinds of legal superstardom—and indeed more and more the ticket to a seat at the court itself—it’s hard not to be saddened by the ways in which women and minorities aren’t making a whole lot of progress toward parity in golden tickets and by the fact that a handful of mostly white men are still the ones handing them out.