Supreme Court Clerks Hired More For Pedigree Than Merit In… Not-So Shocking News

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Sometimes an academic study comes along that doesn’t offer any surprises, but is nonetheless important for putting cold, hard numbers behind what everyone long suspected. Brace yourself: Supreme Court clerks are mostly white and male and graduates of elite institutions.

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Take a second to recover from this groundbreaking revelation.

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New research published under the title Some Are More Equal Than Others: U.S. Supreme Court Clerkships takes a look at 40 years of Supreme Court clerkship data and delivers some uncomfortable if expected opinions:

All clerks are highly qualified, yet the same is true for many not chosen. We find that educational pedigree, as opposed to academic performance or any other qualification, often distinguishes the winners from the also-rans. The Court clerkship selection process, like other elite labor markets, proves to be a blend of status and merit where status often prevails

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Men dominated the clerkship slots over the years. But while one might expect the balance to shift over time, the study discovered that clerkships lag behind law school trends generally. While men made up 69 percent of clerks across the whole four-decade stretch, they still accounted for nearly 60 percent in recent years, despite women comprising 55 percent of law students.

The ethnic breakdown of clerks also heavily favored white folks.

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Over the entire period, 87 percent (n=1236) of clerks were White. Of the remaining 13 percent (n=188), 100 were Asian-Pacific Islander, 48 were Black, 14 were Hispanic, and 26 we could not identify. Figure 2 provides the breakdown of Court clerks by ethnicity by year. The trends show that the percentage of white clerks has a modest downward trend, with considerable variation from year to year. As the aggregate numbers suggest, AsianPacific Islanders represent the greatest increase in non-white clerks

“Modest” is not particularly encouraging as a modifier.

As one might suspect, top law schools snag most of these jobs, but you might be surprised at just how tilted toward the top of the top it is.

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Elite institutions are overpopulated by exceptionally gifted students, but they also don’t hold a monopoly on qualified young lawyers. Though the justices seem to think they do, as the study reports that of the 1,426 clerks serving from 1980-2020, 45 percent came from either Harvard or Yale. Including Stanford, Columbia, and Chicago brings the total to around two-thirds of all clerks. The full T14 represents 86 percent of all clerks over that run.

Students learning from the best of the legal academy should be expected to dominate these numbers… but are 45 percent of the universe of qualified potential clerks really confined to two schools? Seems a bit fishy.

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Because even among students with the same law degree, the Court historically moves on to rewarding undergraduate accomplishments as a tiebreaker. From a Forbes writeup of this study:

Even among graduates who graduated from Harvard Law with honors, those who previously had attended one of 22 selective undergraduate institutions were more likely than undergraduates from less prestigious schools to be chosen as Supreme Court clerks. Most of that advantage was due to students who had attended Harvard, Yale or Princeton as undergraduates.

Between law school and elite undergraduate careers, this also raises the stakes of the upcoming affirmative action opinion because if the justices can’t seem to hire from outside a handful of schools, pushing those schools to be more white and male will spill over. It’s like one big ball of continuously exacerbating privilege.

As stark as the academic numbers may be, it’s not necessarily all the fault of the schools. Introducing the concept of feeder judges adds another layer of compounding pedigree privilege:

Across different cut-off levels, a disproportionate number of Court clerks come from a select number of lower court judges. The top 1 percent (3 judges) comprised 7 percent of the clerks’ previous clerkships. The top 10 percent (33 judges) comprised over 54 percent of all previous clerkships. The top quarter (83 judges) represented three quarters of all clerkships, and the top half (166) of judges represented 89 percent of all clerkships.

If the vetting process is farmed out to a handful of lower court judges, then the elite and non-diverse tendencies of those judges get baked into future Supreme Court clerkship decisions.

And it doesn’t look like anything’s going to be done to put the brakes on this any time soon.

Some Are More Equal Than Others: U.S. Supreme Court Clerkships [SSRN]
“Show Us Your Pedigree.” The Elite College Pipeline To The Supreme Court [Forbes]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Clerks, Courts, Law Clerks, Supreme Court, Supreme Court Clerks