Legal Commentary

Now There?s a Commitment to State, Rather than Federal, Authority

By Eugene Volokh

A reader points out that Justice Thomas has at least three former clerks who are now Justices on state Supreme Courts: Justice Eid in Colorado, Justice Stras in Minnesota, and now Justice Lee in Utah. And Justice Thomas is of course the U.S. Supreme Court Justice who has the broadest view of the structural constitutional restraints on federal power (ones that leave states to regulate or not regulate, free of federal interference). Coincidence? Or is it just that he and I don?t know about other Justices who have had this many clerks on state supreme courts?

By the way, the one other Justice who comes to mind with at least two ex-clerks on state supreme courts ? just because I know her ex-clerks unusually well ? is Justice O?Connor; Ruth MacGregor and Scott Bales have both been on the Arizona Supreme Court (and Justice Bales is still there). And Justice O?Connor was also one of the Justices who took a rather broad view of state powers (again, with respect to the federal government; I set aside here individual rights constraints on both the state and federal governments). I know there are state supreme court justices who have clerked for Justice Powell (Rives Kistler, Oregon), Chief Justice Rehnquist (Brian Morris, Montana), and Justice Scalia (David Nahmias, Georgia), but I don?t know of any other clerks who came from those Justices? chambers. And my sense is that more former Supreme Court clerks end up serving on federal circuit courts, even though there are fewer federal circuit judges in the U.S. than there are state supreme court Justices.

Are there other U.S. Supreme Court Justices with two, three, or more ex-clerks sitting on the highest courts of a state?

Full post as published by The Volokh Conspiracy on July 20, 2010 (boomark / email).