February 8, 2023 - Santa Monica, Calif. - A report from the A-Mark Foundation investigates the impact of law clerks on the workings of the Supreme Court of the United States (SCOTUS). The report examines what law clerks do, how they are selected, and what studies have found about the degree of influence clerks might have over case selection and outcomes. Also included is an analysis of the clerk selections of the sitting justices. A new quiz tests how much people know about this topic.
SCOTUS law clerks are generally top graduates from prestigious law schools who have clerked for at least one other judge at a lower court. Justices tend to select clerks with similar political ideologies, although the late Antonin Scalia was known to select one “counter-clerk” to balance his considerations. Since the 1940s, just under half of all SCOTUS law clerks have come from Harvard and Yale. The current class of 38 clerks is 66% male and estimated to be 84% white.
The clerk demographics presented in A-Mark’s report were mirrored by a recent study by law school professors that was highlighted in a Feb. 6 New York Times feature by Adam Liptak.
That examination of SCOTUS clerks from 1980 through 2020 found that 69% were male and 87% were white. In addition to confirming that nearly half of all clerks went to Yale or Harvard law schools, the study uncovered that getting an undergraduate degree from Harvard, Yale or Princeton made law students more likely to obtain a coveted Supreme Court clerkship.
Ten former SCOTUS law clerks went on to become Supreme Court justices, including six members of the current Court. Others have served as U.S. Secretary of State, U.S. Attorney General, ambassadors, members of the House of Representatives, presidents of universities, and in other positions of influence.
The debate about how much influence SCOTUS law clerks have over justices dates back at least to the 1950s, though no consensus has been achieved. The May 2022 leak of the decision that would undo Roe v. Wade put clerks in the spotlight of the investigation to find out who was responsible for the early disclosure. The investigation was ultimately unable to identify the source of the leak.
In general, Court-watchers look for indications of law clerk involvement in choosing cases, drafting opinions or even how justices vote, but some experts say the clerks are too young and inexperienced to have undue influence. One study, however, found their influence was stronger on high-profile and legally significant cases.
Today's Supreme Court has six conservative and three liberal justices. In the 2021-2022 term, 29% of cases were decided unanimously, the lowest rate in the 20 years of records. In the 2022-2023 term, the Court will be taking on cases related to affirmative action, voting rights, and free speech. With such important topics up for consideration, the general public might have an interest in learning more about the people who work behind the scenes of the nation’s highest court.