The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Supreme Court clerks are not a particularly diverse lot


The Supreme Court in Washington. (J. Scott Applewhite/Associated Press)

A clerkship with a Supreme Court justice is among the most prestigious positions a young attorney can obtain. A series of articles in the National Law Journal documents how most Supreme Court clerks seem to be cut from the same cloth: Most clerks are white males and have attended one of a handful of elite law schools. Yet as the articles also show, the extent to which different justices achieve diversity in their chambers varies quite a bit—and perhaps not always in the ways one might expect.

Among the reports' findings:

  • "Since 2005—when the Roberts court began—85 percent of all law clerks have been white. Only 20 of the 487 clerks hired by justices were African-American, and eight were Hispanic. Twice as many men as women gain entry, even though as of last year, more than half of all law students are female."
  • "Since Chief Justice John Roberts Jr. joined the court in 2005, just 8 percent of the law clerks he's hired have been racial or ethnic minorities; At the other end of the spectrum, 31 percent of Justice Sonia Sotomayor's clerks have been non-white, making her chambers the most diverse."
  • Since joining the Supreme Court in 1993, Justice Ruth Bader Ginsburg has hired only one African American clerk. (Further, as noted during her confirmation hearing, then-Judge Ginsburg never hired an African American clerk during her 13 years on the U.S. Court of Appeals for the D.C. Circuit.)
  • "While Ginsburg and Breyer have hired men and women in equal numbers, other chambers continue to be male-dominated. The court's swing vote, Anthony M. Kennedy, has hired six times as many men as women as law clerks since 2005."
  • Since 2005, Roberts and Justices Kennedy, Stephen G. Breyer and Elena Kagan have hired a majority of their clerks from two law schools, Harvard and Yale.
  • Justice Clarence Thomas has "hired from 23 different law schools since 2005, with one-third of his clerks coming from schools outside the Top 10 on the U.S. News and World Report rankings."
  • A disproportionate share of clerks since 2005 clerked for a handful of appellate judges before their Supreme Court clerkships, including Judges Brett Kavanaugh and Merrick Garland on the D.C. Circuit, Judge J. Harvie Wilkinson III on the 4th Circuit, Judge Robert Katzmann on the 2nd Circuit, and Judge Alex Kozinski on the 9th Circuit.