Today’s New York Times has an excellent package on Supreme Court clerks and the patterns in the relationship between the Justice’s ideology and their choice of clerks. Each Justice hires 4 clerks to serve for one Court term and the data indicate that the process of hiring has become more ideological over time. Much of the package is based on academic research on the Court and similar data sets to those used by Epstein and Segal in Advice and Consent. All of this gives us hints about how the Court works but many of the details of how clerks are used and how much of what we read in published Court decisions is written by the clerks, and how heavy an editing hand the Justices exercise over drafts written by clerks, remain somewhat shrouded as clerks generally do not talk about their jobs even after they leave the Court.
The pattern isn’t universal, while Justice Thomas now only hires clerks who have previously clerked for Republican appointed appellate judges (but who may have gone to non-elite law schools), Justice Breyer hires about half Democrats and half Republicans.
One pattern is almost universal – the clerks go to the elite law schools and most go to either Yale or Harvard. This seems consistent with the pattern of the Justices themselves, who all hail from Ivy League law schools. Is this good for the Supreme Court, for law, for the country? Or is Justice Scalia’s argument compelling that:
“By and large,” he said, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”
Here is the Times chart of the data (derived from a variety of political science sources).
What might we infer from this data about the political nature of Supreme Court decision-making? Do you think that who the clerks are, or the kind of hiring practices followed, are politically relevant or likely to have effects on outcomes (votes on the merits, substantive arguments in decisions, legal reasoning)?