A Thought Experiment: Phase Out Supreme Court Clerks

Eliminating these unique positions of immense power and prestige would have several downstream benefits, and the downsides are also probably benefits.

In February 2020, I conducted a thought experiment about how Congress could restructure the federal judicial clerkship program, through standardizing the hiring process, imposing minimum qualifications, and converting term clerks to career clerks. The post generated some debate, and as I anticipated, stimulated discussion on some of the shortcomings about federal clerkships.

Here, I'd like to conduct another thought experiment that is at once more limited, but far more ambitious: Congress should phase out Supreme Court law clerks. I decided to write this post after mulling over the issue for some time, and I have come to conclude that on balance, SCOTUS clerkships create far too many distortions in legal markets that should no longer be sanctioned by the federal government.

***

First, Supreme Court clerkships are among the shiniest brass rings in the world. Law firms fight over the so-called "elect," and pay bonuses totaling nearly $500,000. Indeed, firms pay this obscene amount even though former clerks are barred from practicing before the Supreme Court for three years. But the value of these clerks is not only measured in dollars and cents. An elaborate power structure surrounds the selection of these clerks–especially at elite schools. Look no further than recent scandals at Yale Law School. Over and over again, professors control students through the need for recommendation. And the administration threatened students with clerkship prospects. But this problem isn't limited to law schools. So-called "feeder judges" routinely fight over the select few clerks who may be viable Supreme Court clerks. Professors, with pathways to the feeder judges, exert pressure over 1Ls and 2Ls to get hired by those feeder judges. And those feeder judges can exercise inordinate power and pressure over the clerks–even to the point of clerks concealing misconduct to avoid threats of retaliation. The clerk machines that were Judges Kozinski and Reinhardt provide evidence of this dynamic. Moreover, the clerk networks of the Justices create elaborate screening processes that act as black boxes. Favoritism and biases abound. At every step of the process, students are pressured to conform to expectations, deathly afraid of risking the chances of missing that brass ring. Students who make it through the cut are welcomed to the club. Students who miss the cut will forever be outside the club.

Second, Supreme Court clerks may exercise an undue amount of authority. It is difficult to assess how much power Supreme Court clerks have. I suspect that answer varies based on the Justice, and his or her age. Specifically, as Justices get older, and their faculties decline, they will rely more and more on law clerks. How long was Justice Douglas propped up by his clerks? One of the unintended benefits of my proposal is it would create incentives for declining Justice to seek an earlier retirement. If they can't keep up with duties, they will have to step down. There is no need to impose term limits–simply force the Justices to do their own work.

Third, forcing the Justices to do their own work will make it harder for them to engage in extra-curricular activities. I have tired of the never-ending series of forgettable books that people only pretend to read because they were written by Justices–especially when these books come with exorbitant advances. Then, invariably, Justices go on ostentatious book tours. These excursions breed the cult of personality that afflicted Justice Ginsburg, and force Justices to lose their grounding. Hobnobbing with elites makes you elite. If the Justices are stuck in their chambers, reading cert petitions, they are less likely to forget what is important. And, if Justices wish to engage in these extra-curricular activities, they can retire.

Fourth, forcing the Justices to do their own work, without the assistance of clerks, would make it more likely for the Justices to interact with each other. I see that sort of give-and-take as a benefit. Collaboration would yield less sharply-divided opinions, which creates clearer rules of decision. Plus, no law clerks means opinions will be shorter and to the point. Less flourish is better. And, once again, if a Justice finds the other eight tiresome, he or she can seek other employ.

Fifth, eliminating law clerks would eliminate the cert pool. The Justices would have to read the petitions, on their own, and not rely on a memo from some 20-something clerk. No cases are argued over the summer, so the Justices could spend their breaks doing nothing but reading cert petitions for the long conference. Not as fun as Salzburg, but more in line with the job for which they were appointed. If that burden is too much, you guessed it, retire.

Of all the cockamamie Court reform proposals, I think mine would be the quickest way to reduce the Court's power and prestige. And it would be 100% constitutional. The clerks don't have to be eliminated all at once. They can be phased out. Four this year. Three the next. Two the year after. One clerk for a few terms. Then zero. Maybe the Court can hire a room of copy-editors and cite checkers–non-attorney career employees who can proofread the work, but not make substantive recommendations. Let's see how the Justices fare on their own. John Marshall didn't need a law clerk. Neither does John Roberts.

***

I never clerked on the Supreme Court. I doubt I ever had any serious chance of being hired, but I decided early on that I didn't want to seek such a position–or more precisely, I didn't want to run the gauntlet needed to get there. I like to choose my own adventure, and that process was not for me. I had no interest in kissing the rings. Plus, I was very fortunate to get a job that I love, and had no interest in giving it up.

Once again, people will dislike my writings. I fully anticipate that many critics will have clerked on the court. Or they may derive some prestige by placing their mentees on the Court. Or in some other way they will benefit from the largesse from the elect. But all of these inevitable criticisms provide further support of my position–those who stand to benefit from the SCOTUS clerkships have the greatest incentives to leave the current structure in place.