The Supreme Court Is Terrible at Hiring Diverse Law Clerks, but Neil Gorsuch Is Surprisingly Good at It

Neil Gorsuch.
Supreme Court Associate Justice Neil Gorsuch is seen during a ceremony in the Rose Garden at the White House on April 10, 2017, in Washington. Eric Thayer/Getty Images

Neil Gorsuch has made a decision that deserves unqualified praise across the ideological spectrum: The justice hired Tobi Merritt Edwards Young, a citizen of the Chickasaw Nation, as a law clerk, starting in July. Young is believed to be the first enrolled citizen of a Native American tribe to clerk for a justice of the U.S. Supreme Court.

SCOTUS clerks are a notoriously homogeneous bunch. In December, National Law Journal’s Tony Mauro published a startling study of clerks from 2005–17. He found that clerkships remain “dominated by white men.” Eighty-five percent of all clerks were white; only 20 of the 487 hired were black, and nine were Hispanic. Asian Americans are the best-represented racial minority on the court; 9 percent of clerks hired since 2005 are of Asian descent.

Gender diversity is lacking too: Mauro noted that “twice as many men as women gain entry” into this “elite club.” These numbers mark a bare improvement over the last study, conducted by Mauro and USA Today in 1998, which found that less than 1.8 percent of clerks hired by the justices then serving were black (it’s now 4 percent) and just 1 percent were Hispanic. (It’s now 1.5 percent.) Back then, women comprised just one-fourth of all clerks.

The 2017 numbers are especially concerning given the extraordinary prestige and power that comes with a SCOTUS clerkship. Former clerks receive up to a $350,000 hiring bonus at big firms—a number that grows every year—and obtain plum positions at renowned schools. They often go on to serve as judges or politicians: Four sitting justices clerked at SCOTUS, as did three current U.S. senators. While on the court, clerks help their justices choose which cases to hear and draft opinions. They leave their fingerprints on constitutional law. And yet they remain substantially less diverse than the student bodies of top law schools.

That’s a shame. The court rules on civil rights every term. And though justices’ personal policy preferences shouldn’t guide their decision-making, clerks can help their bosses understand how the law may unjustly degrade women and minorities. Clerks bring their life experiences to the table as they aid their justices in preparing for oral arguments and writing opinions. Those experiences should not be limited to affluent straight white guys.

Some justices are better about clerk diversity than others, of course. Gorsuch has already indicated that he won’t follow the lead of his predecessor, Justice Antonin Scalia, whose clerks were mostly white men. Of the seven clerks Gorsuch has hired over his first two terms, three are nonwhite. Sadly, only one is female. But with his selection of Young, that number is already on the rise. Justices Ruth Bader Ginsburg and Stephen Breyer have hired roughly equal numbers of men and women since joining the court. By contrast, Justice Anthony Kennedy has hired six times as many male as female law clerks since 2005.

Unfortunately, Mauro did not get data on LGBTQ clerks, but the overwhelming majority of clerks are heterosexual. No justice has yet hired an openly transgender or gender nonconforming clerk. Multiple justices have, however, hired at least one openly gay clerk.

Of the justices who have served for more than two terms, Justice Sonia Sotomayor demonstrates the strongest commitment to diversity: More than 30 percent of her clerks have been nonwhite. (In 2016, she hired the first person of Native Hawaiian ancestry, Kamaile Turčan, to serve as a SCOTUS clerk.) Just 12 percent of clerks who’ve served for Ginsburg and Justice Clarence Thomas since 2005 are racial minorities. Only one black person has clerked for Ginsburg (who joined the court in 1993) and the same is true of Justice Samuel Alito (who joined in 2006). A mere 8 percent of clerks hired by Chief Justice John Roberts (who joined in 2005) are racial or ethnic minorities.

Mauro also looked at a different kind of diversity—the number of clerks who did not graduate from the highest-ranked law schools. The progress here is a mixed bag. Graduates of Harvard and Yale law schools constitute half of clerks hired since 2005, a jump from 40 percent in 1998. On the other hand, justices do appear to be reaching beyond the upper echelon more frequently. Thomas and Sotomayor consistently hire clerks from schools outside the top tier. Alito recently hired a graduate of Louisiana State University law center, Ben Aguiñaga. Meanwhile, Tobi Merritt Edwards Young graduated from the University of Mississippi School of Law.

The more that justices look for clerks outside the Harvard-Yale duopoly, the more likely they are to have diverse chambers. While both schools have strived to diversify their student bodies, students who wish to clerk must make connections among a select group of faculty who can recommend them to a lower court judge, preferably one who serves on a federal district or appeals court. A handful of “feeder” judges, who are mostly white men, then send their favorite clerks on to SCOTUS. (Judge Alex Kozinski, who resigned in December following accusations of sexual harassment, was a particularly prolific feeder judge, particularly to Kennedy; it’s no wonder Kennedy’s chambers are so men-dominated.)

Supreme Court justices would almost certainly diversify their clerk pools if they looked past feeder judges and extremely exclusive law schools to make their selections. Mauro’s numbers are distressing, but they are moving (slowly) in the right direction, and Gorsuch is already helping to increase the pace of progress. Straight white dudes with choice connections and elite degrees should not retain their stranglehold on SCOTUS clerkships. As Gorsuch appears to recognize, both the court and the country deserve better.