The Supreme Court is one of the most thoroughly examined institutions in American life, and rightly so. Supreme Court Justices are appointed, not elected, and yet the Court can undo laws passed by any elected legislature in the land, and it often makes law that has more profound and lasting impact, for good or ill, than any statute. Like that of a sovereign, there is no limit on a justice’s term in office, ensuring that his or her influence can far outlast the careers of mere politicians. And the Court is composed of only nine individuals whose opinions frequently split along ideological lines, with only a bare majority required to reach what is often a hugely momentous decision (unlike, say, juries, where the Constitution requires unanimity to convict someone of a serious offense, or the two-thirds vote of Congress required to override a presidential veto).
As early as this June, the Court is expected to hand down far-reaching decisions on, among other issues, abortion rights (Dobbs v. Jackson Women’s Health Organization, which many expect to overturn Roe v. Wade), public funding for religion-based schools (Carson v. Makin), and gun control (New York State Pistol & Rifle Assn. v. Bruen, challenging restrictions on the “concealed carry” of firearms).
But who participates in making these decisions? Who recommends which cases will be heard by the Court? Who negotiates coalitions among the justices? Who researches and writes the opinions? The answer to all these questions is the same: the justices’ law clerks, who, though working within one of the most heavily-scrutinized institutions in America, remain largely invisible and unknown to the public.
The position of law clerk on the U.S. Supreme Court was created by an act of Congress in 1886, to provide mainly stenographic assistance to the justices at what was then an annual salary of $1600. 1 Law clerks were an outgrowth of the apprentice model of legal training, whereby young men (as they invariably were) “read the law” under the tutelage of an established lawyer in order to become licensed to practice. The Supreme Court clerks of that early era stayed in their positions for many years, sometimes for the entire tenure of their justices, and each justice had only one or two clerks.
But over the years, as the number and complexity of cases heard by the Court exploded, the role of the law clerk has morphed from merely providing secretarial assistance to influencing the Court’s docket, framing the controversies before it, serving as shuttle diplomats among the Court’s factions, and writing the Court’s opinions. Today each justice has four clerks at a time, with some overlap as they come and go. Typically, law clerks spend only one year at the Court before moving on to lucrative positions in law firms, the academe, and their own judgeships.
If you drew a graph of jobs in the U.S. with the average age of persons filling a given job on the horizontal axis and the public power and influence that comes with that job on the vertical axis, the Supreme Court clerkship would stand alone in the extreme upper left — an extraordinarily influential job exclusively held by the very young. Most Supreme Court clerks are only a very few years out of law school, meaning most are in their late twenties, and they typically have spent that time clerking for another judge, usually at the federal appellate level. They most likely went to one of a handful of law schools — Harvard, Yale, Chicago, Columbia, or Stanford —where they were on law review and graduated at the top of their class.
They are mostly men (currently around 60%), though Brett Kavanaugh, for reasons one can only guess, is alone among the justices in having only female law clerks. 2 And though they are survivors of one of the strictest evaluative gauntlets in all of meritocracy, and come recommended by judges and law school deans with personal or ideological connections to the hiring justice, they are hired by the individual justices without outside review of any kind.3
And not surprisingly, they tend to reflect the legal and political philosophies of the justices they end up working for. In just one example of what might be called “legacy clerkship admissions,” Justice Clarence Thomas in 2001 hired Neomi Rao, a Chicago Law grad, to be one of his clerks, and she worked in that capacity for one year. After a number of other positions, including associate White House counsel during the Bush years, she was appointed in 2019 to the D.C. Circuit Court of Appeals by then-President Trump to fill the position vacated by Trump’s appointment of Brett Kavanaugh to the Supreme Court. And now two of her own clerks have been selected to be Supreme Court law clerks – by none other than Clarence Thomas.4 And so it goes.
The law clerks’ workload is crushing – or would crush lesser mortals. They review petitions to the Court to hear particular cases and write memos recommending whether to grant or deny such hearing, typically digesting upwards of 300 such petitions per year per clerk.5 This reportedly takes up about a third of the clerks’ time, with the balance devoted to memo writing, research, and drafting opinions for their respective justices.6 Not surprising that most Supreme Court clerks stay little more than a year in their position.
But when it comes to the Court’s decisions, their role isn’t limited to merely drafting opinions; they often shape them. Here’s an example of the kind of unvarnished viewpoint that law clerks can provide to their justices:
“If you believe that there are enough votes on the Court now to overturn Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage.”
This was written not last week, but thirty years ago, in 1992, in a memorandum to then Justice Harry Blackmun, who had authored the majority opinion in Roe v. Wade, by one of his law clerks, Molly McUsic, as the Court was in the midst of deciding whether to grant certiorari to (agree to review) the case of Planned Parenthood v. Casey.7 McUsic, who had graduated from Harvard Law a mere three years earlier, went on to inform her boss,
“The Court’s authority is in the long run limited by popular will. The Court can protect people against the popular will for some time, but not forever. Eventually the Court’s authority comes from the popular acceptance and understanding of its opinions. Brown v. Board of Education is illustrative….
Roe is different. Roe was initially controversial, but the political support and acceptance did not follow….Roe has been continually challenged and provided immense political advantage to the Republicans. It is an easy source of fundraising and passion for the right wing.”
This is not legal analysis in the least, but it is deeply insightful political and social commentary, written by a young woman to a Supreme Court justice many times her age (Blackmun was 84 at the time Casey was decided) in her capacity as a mere “clerk,” surely one of the most modest and misleading labels in all of law.
We fret continually about the composition of the Supreme Court, particularly in terms of ideology. But we have no idea what the current batch of Supreme Court clerks thinks about the momentous cases soon to be ruled upon by their bosses – and we may never know. Despite their huge influence, those 36 or so young people constitute one of the most carefully and successfully secretive groups in any walk of life.
There are strong arguments to be made that the modern role of the Supreme Court clerk verges on the unconstitutional, that, in the words of one study, “the institution of the law clerk has been transformed into a permanent bureaucracy of influential legal decision makers, scarcely resembling its original incarnation,”8 in spite of the fact that only the duly-appointed justices have the constitutional authority to do the work of judging. Greater transparency around the selection and function of the clerks, and a reduction in the number of cases taken up by the Court, would seem to be the minimum first steps toward correcting this dubious trend.
One can only wonder what it must be like to be one of the brand-new clerks working for brand-new Justice Amy Coney Barrett – four men and one woman, two from Harvard Law, one each from Chicago, Virginia, and George Washington9 — perhaps at this moment drafting a concurring or dissenting opinion in the profoundly controversial Dobbs case.
They might do well to recall, for themselves and their justice, Molly McUsic’s advice to Justice Blackmun in 1992: “The Court’s authority is in the long run limited by popular will.”
- Ward and Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York University Press, 2006).
- Source: Wikipedia. By way of comparison, only 40% of Ruth Bader Ginsburg’s clerks were women across her Supreme Court tenure. Ibid.
- Ward and Weiden, Sorcerers’ Apprentices.
- Source: Wikipedia (multiple entries).
- Ward and Weiden, Sorcerers’ Apprentices.
- Ibid., Appendix E. The Court’s plurality opinion in that case substantially curtailed the constitutional right to abortion articulated in Roe, allowing restrictions that did not impose an “undue burden” on the pregnant woman. It’s that standard that is under further review in the Dobbs case to be decided by the Court this year.
- Ward and Weiden, Sorcerers’ Apprentices.
- Source: Wikipedia.
4 thoughts on “Supreme Court Clerks and the Making of American Law”
Keith, again a very incisive and enlightening post. There seems to be little transparency, oversight or general awareness regarding the outsized and influential role of the Supreme Court clerk. A conspiracy theorist–which I am not–might call the entire arrangement a “deep state” within a “deep state.” Be that as it may, while Supreme Court law clerks may hold the most prestigious unelected roles that a very young attorney can attain within our constitutional framework, I think it may open to debate as to whether these clerks wield the most influential roles on the practical formation of the law. True that the Supreme Court has the final judicial word on a host of significant constitutional and federal questions. However, most of the judge-made law and interpretation occurs at the federal appellate level, and the Supreme Court reviews only an infinitesimal number of those cases. So, one might argue that the influence that federal appellate law clerks have on the law on a day-to-day basis far exceeds that of Supreme Court law clerks, the doctrine of stare decisis notwithstanding. These clerks are often younger and less experienced than the Supreme Court clerks, and there is, given the intermediate position of these courts, even less scrutiny and sunlight on how these clerks influence appellate decisions, and ultimately the resulting law.
Excellent point, Ken, thanks! I probably should have qualified the “greatest influence” aspect of the description of the SCOTUS clerks with some sort of per capita concept. But thanks again.
Fascinating-as a not attorney. Do they have anything to do with the shadow docket?
Thanks, Anne! Inasmuch as one of the clerks’ primary responsibilities is to review and recommend whether the Court hears various forms of petition to the Court, they very much influence the so-called “shadow docket” of unsigned, summary rulings. And since such rulings relieve the clerks of the much more time-consuming process of writing opinions, the practice is very much in the clerks’ interest, at least from a time-management point of view. It’s noteworthy that as the number of cases in the shadow docket has increased, the number of cases heard in the normal course (so-called “merit” cases) has declined. -K