A pair of articles in the New York Times highlights the important role of clerks to Supreme Court justices, though how much influence the clerks have over their bosses is debatable. Adam Liptak writes that in recent years, justices have become more and more likely to hire clerks of their political stripe. Justices appointed by a Republican president tend to hire clerks who previously worked for appeals judges appointed by a Republican president, and vice-versa for those appointed by a Democratic president.
Elsewhere, Liptak notes that graduates of particular law schools have a near-monopoly on clerkships. About 50 percent of clerks since 2005 were graduates of either Harvard or Yale, and four other schools contributed another quarter of clerks. Justice Clarence Thomas alone prefers to hire clerks from other schools, saying he is not part of the “faux nobility” of the Ivy League.
Jason Mazzone of Brooklyn Law argues that Liptak gives too much weight to the partisan trend. Mazzone says that Liptak is pointedly criticizing the conservative members of the court, but misses the bigger reason for the trend: today there are far more Republican-appointed federal judges than there were 30 years ago, so there are bound to be more clerks who worked for them. Second, Mazzone doubts that clerks influence the justices as much as Liptak gives them credit for.
While there is some evidence (which Liptak discusses) that law clerks can influence a Justice’s position in certain cases, we should not overstate the effects, particularly in cases with strong political overtones. Supreme Court Justices are very smart and very experienced. It is naïve to think that a 20-something year-old law liberal clerk will be so persuasive that Justice Scalia will abandon originalism or vote to invalidate gay marriage and it is equally naïve to imagine that Justice Ginsburg will be persuaded by a conservative clerk to find gender classification should only be subject to rational review under the Equal Protection Clause. More likely is that a year in Justice Scalia’s chambers will turn a liberal clerk conservative.
Nevertheless, young Supreme Court clerks are important as they study cases, make recommendations about which cases the court should hear, discuss cases with the justices and help them prepare to hear oral arguments, and write large sections of opinions. Many of these clerks will later go on to prominent places in government, law, and academia, and some may even ascend to the high court themselves.
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