The New Clerks In Town

When confirmed to the Supreme Court in 1962, Justice Byron White became the first justice ever to have clerked for a previous justice, as White clerked for Chief Justice Vinson in 1946.

This was more than 60 years after the first Supreme Court clerk was hired by Justice Gray in 1882 and more than 150 years after the first Supreme Court opinion.

Many of the justices who were confirmed to the Court after White did not previously clerk on the Supreme Court.

Such justices include Goldberg, Fortas, Thurgood Marshall, Burger, Blackmun, and others. Now clerking on the Court seems a requisite to later becoming a justice.

That may be a tad hyperbolic as three justices — Thomas, Alito, and Sotomayor — were not Supreme Court clerks. For the first time ever though, we have justices replacing justices they previously clerked for, as is the case with Justices Kavanaugh, who clerked for Justice Kennedy, and the newly confirmed Justice Jackson, who clerked for Justice Breyer. 

For the first time in history, we now have two justices on the Court who previously clerked for the same justice, as Justices Gorsuch and Kavanaugh both clerked for Justice Kennedy. This I suppose is a longwinded way to opine on the importance of Supreme Court clerkships to the modern Court in a way that wasn’t the case in the past. This is not a judgment call; it just seems to be the state of affairs.

Who might fill the justices’ seats in the future? Although the pool for candidates is quite large, there is a high likelihood that they will have previously clerked at the Supreme Court level.

To gain some leverage on the path to Supreme Court clerkships I ran an analysis in 2016 that looked at the data on clerkships between 2005 and 2016. Some years have passed since then and so I decided to assess the current path to Supreme Court clerkships based on law schools and lower court clerkships.

So where are clerks currently hailing from? First a look at the law schools with at least two students that have or will become SCOTUS clerks in 2017 or later:

Since 2017 more SCOTUS clerkships have gone to Yalies than to students from any other school. Not surprisingly Harvard is the only other school in the 50-70 student to SCOTUS clerkship range. After these two obvious choices, University of Chicago fared well as did Stanford and NYU. Virginia, Michigan, Columbia, and Berkeley fill out the rest of the schools that have or will send five or more students to Supreme Court clerkships from 2017 on. 

What about lower court clerkships including those on both federal district and circuit courts? Only one clerk in the dataset did not clerk below the Supreme Court level, and only one clerk in the set clerked for a state court judge below, so lower federal court clerkships are almost a necessity to go on to a SCOTUS clerkship. Below are judges with at least five clerks who went or are going on to clerkships on the Supreme Court.

The ideological nature of the relationship between feeder judges (those from appeals courts) or district court judges and Supreme Court Justices is readily apparent. Judge Srinivasan on the D.C. Circuit was the other likely candidate along with Merrick Garland for nomination to fill the seat vacated by Justice Scalia. Srinivasan tracked a bit more to the left of Garland when Garland also sat on the D.C. Circuit. On the other end of the spectrum Judge William Pryor who comes next on the graph is a judge at the right end of the ideological spectrum. Later in this post I look at which justices are taking clerks from the various lower court judges. Interestingly, even though Justice Kavanaugh has been on the Court since 2018, his former clerks made him the fourth highest ranking feeder judge since 2017.

Since most of the SCOTUS clerks in the data clerk for multiple judges below some connective tissue will be helpful here – namely a look at the most common sequence of clerkships. In the graph below Judge 1 is for a first clerkship and Judge 2 a second clerkship (the one preceding a Supreme Court clerkship). The observations included are only for sequences followed by two or more clerks.

Some notable points about this graph. First, there are several clerks with sequences including multiple appeals court judges but no district court judge. Second, the most common sequences are (1) Judge Rakoff from the district court to Judge Katzmann on the second circuit and (2) Judge Boasberg from the district court level and Judge Srinivasan on the D.C. Circuit. Third, only one circuit judge, Judge Watford, is connected to multiple district court judges, each with multiple observations.

Now a look at the relationship between justices and feeder judges / district court judges.

The most apparent relationship is between Justice Thomas and Judge William Pryor. Thomas also pulls a high number of clerks from Judge Sykes on the 7th Circuit and from Judge Katsas on the D.C. Circuit.  Justice Gorsuch has pulled the highest number of previous clerks from those who previously clerked for him on the 10th Circuit. Other notable relationships include Justice Kagan and Judge Srinivasan, and former Justice Ginsburg and Judge Katzmann.  Chief Justice Roberts has a strong balance between the left and right with an equal number of clerks coming from Justice Kavanaugh (when he sat on the D.C. Circuit), Judge Srinivasan, and Judge Sutton from the 6th Circuit. 

How about the relationships between the justices and law schools where the clerks previously studied (with a minimum of four clerks from a given school)?

Several of the justices including Alito, Breyer, Ginsburg, Kavanaugh, Kennedy, and Sotomayor took more clerks from Yale than from other schools. Justices Barrett, Gorsuch, and Thomas all have more clerks from the University of Chicago than from any of the other schools.  Roberts has the most clerks from any one school than any of the other justices. These 20 clerks are from Harvard Law School. Justices Kagan and Kavanaugh also have more clerks that previously attended Harvard Law School than any of the other schools. 

We can slice these data a few more ways. Next a look at the relationship between the lower court judges and the law schools. Many of these relationships should seem obvious based on where the justices find the majority of their clerks.  This graph includes feeder and district court judges with at least three SCOTUS clerks from a given school.

The strongest relationship is between Judge W. Pryor and University of Chicago which seems intuitive given the relationships between several of the justices, Judge Pryor, and University of Chicago.  Judges Kethledge and Katzmann each have seven clerks from Yale who have or will clerk at the Supreme Court level. Judge Sutton has taken more clerks from Stanford who will or have clerked at the Supreme Court level than from other schools. Lastly, Judge Srinivasan and then Judge Kavanaugh had more clerks from Harvard who moved or are moving on to Supreme Court clerkships than from other schools.

Finally, we can pool this information together to look at the tripartite relationship between law school, judge, and justice.  The following graph looks at this relationship based on a minimum of two Supreme Court clerks who proceeded in such a fashion.

The pull of Yale Law School is evident in the above graph.  The strongest relationship is between Justice Kavanaugh, Yale Law School, and Judge Friedrich on the District Court of D.C.  The next strongest relationship is between Harvard, Judge Sutton, and Chief Justice Roberts. Other notable relationships include (1) Yale, Judge W. Pryor, and Justice Alito, (2) both Harvard and Stanford, Judge Srinivasan, and Justice Kagan, and (3) district court Judge Furman, NYU, and Justice Sotomayor to name a few.

Without running the network analysis as I did in the previous post, Yale Law School and Judge Srinivasan should support the strongest combination to make it to the Supreme Court even though none of the three-part relationships include that combination.  The elite schools are still the powerhouses churning out Supreme Court clerks but there seems to be more parity below Harvard and Yale than existed previously.  The University of Chicago Law School is especially notable for both its total number of former students becoming Supreme Court clerks and the strong ties between Chicago, certain lower court judges, and particular justices. Ideology in lower court judges seems to play a large role in the process of reaching a Supreme Court clerkship as the justices appear to pull clerks strategically from particular lower court judges. If the justices maintain the polarized ideologic makeup of the Court moving forward we should expect to continue seeing these strategic ideologic choices.