Legal Commentary

Career Polarization Among Former Supreme Court Law Clerks

By Orin Kerr

Adam Liptak has a Sidebar column in the New York Times about a new article in the Vanderbilt Law Review on the career paths of former Supreme Court clerks. The article is The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation, by William E. Nelson, Harvey Rishikof, I. Scott Messinger, and Michael Jo.

The article presents empirical findings of the employment pattern of former Supreme Court clerks. It concludes that ?careers of former clerks show striking trends of political polarization in the recent history of the clerkship with regard to the legal academy, government service, and private practice.? The basic finding is that the law clerks of conservative-leaning Justices often then work at conservative-leaning law firms and then end up in Republican Administrations or stay in private practice, while the law clerks of liberal-leaning Justices often work at liberal-leaning law firms or go into academia with possible pit-stops for positions in Democratic Administrations. Liptak summarizes the findings for who became an academic here:

Only 19 percent of clerks from the four most conservative justices in recent decades joined the legal academy and only 7 percent went to one of the top 10 law schools in the annual survey published by U.S. News & World Report. A significant minority joined the faculties of religious or conservative law schools. Clerks for the other five justices followed the historical pattern, with 34 percent joining the legal academy, about half of them at the elite schools.

The article then argues that this polarization has had a number of harmful effects on the law, including that it has made legal academia overwhelmingly liberal and therefore of less interest and influence on more conservative judges and Justices.

The study?s basic finding that former law clerks often tend to work in places where others share their ideological orientation certainly matches my anecdotal evidence. As I once described the staffing switch from the Bush White House lawyers to the Obama White House lawyers, ?Out With the Scalia Clerks from Kirkland, In With the Stevens Clerks from WilmerHale.? At the same time, the article makes a lot of quite broad claims about cause and effect that I though overreached. The identified trends are interesting, but I?m not sure they reveal anything particularly important. It seems to me that these trends largely reflect the fact that a lot of law clerks are interested in career paths that factor in ideological views, such as high-level DOJ spots, White House Counsel gigs, and judicial appointments. The trends reflect those realities, but I don?t tend to think they are the cause of significant additional polarization in views of the law. That?s my initial sense, at least.

UPDATE: Following Ilya?s model of full disclosure, I should add that I clerked for Justice Kennedy, identified in the article as one of the Court?s conservative Justices. I?m not sure it had any impact on my employment, though: Before clerking I was a law professor at GW and a VC blogger, and after clerking I went back to being a law professor at GW and a VC blogger.

Full post as published by The Volokh Conspiracy on December 21, 2009 (boomark / email).